Sajish Khan vs The State Of Manipur Represented ...
2022 Latest Caselaw 507 Mani

SHAMURAILATPAM              Digitally signed by
                            SHAMURAILATPAM SUSHIL SHARMA
SUSHIL SHARMA               Date: 2022.11.16 10:04:22 +05'30'

                                                                                  Page |1


                              IN THE HIGH COURT OF MANIPUR
                                        AT IMPHAL

                                     Bail Appln. No. 22 of 2022

                          Sajish Khan, aged about 28 years, S/o Md. Helal,
                          resident of Yairipok Ningthounai, Thoubal, P.O.
                          Yairipok, P.S. Andro, Manipur - 795149.
                                                                 ... Petitioner/Accused

                                               -Versus -
                         1. The State of Manipur represented by Principal
                                 Secretary,     Home,           Secretariat,   Babupara,
                                 Government of Manipur, Imphal West- 795001,
                                 Manipur.
                         2. Officer-in-Charge, Lilong Police Station, Imphal
                                 West-795001, Manipur.
                                                                        ...Respondents

BEFORE HON'BLE MR. JUSTICE M.V. MURALIDARAN

For the Petitioner :: Mr. M. Gunedhor, Advocate

For the Respondent :: Mr. H. Samarjit, Addl. PP Date of Hearing and reserving Judgment & Order :: 19.10.2022

Date of Judgment & Order :: 14.11.2022

JUDGMENT AND ORDER (CAV)

This petition has been filed by the petitioner under

Section 439 Cr.P.C. praying to enlarge him on bail in connection

Bail Appln. No. 22 of 2022 Page |2

with FIR No.33(05)2022 under Sections 342/364/34 IPC added

Section 302 IPC on the file of Lilong Police Station.

2. The case of the prosecution is that on 21.5.2022

one Md. Abdul Barik of Yairipok Changamdabi Makha Leikai

lodged a complaint to the Superintendent of Police, Thoubal

stating that on 16.5.2022 at about noon hours, his son Md.

Abdullah left his house being accompanied by three persons,

namely Md. Baksar, Sajish Khan and M.Tarique Aziz and his

son did not return. On 20.5.2022, it was known from the persons

who accompanied with his son that his son was kidnapped and

abducted and also wrongfully confined without any reason.

Hence, the complainant filed a complaint before the

Superintendent of Police. Upon receipt of the complaint, the

same was forwarded to Lilong Police Station and the Officer-in-

Charge of Lilong Police Station registered the case in FIR

No.33(5)2022 under Section 342, 364/34 IPC against

Md.Mujibur and others. During the course of investigation, on

22.5.2022 at about 2.00 p.m., an information was received that

an unidentified body later identified to be the missing Md.

Abdullah was found floating on Imphal river at Arong

Nongmaikhong. Thereafter, the investigating officer altered

Section 302 IPC.

Bail Appln. No. 22 of 2022 Page |3

3. Mr. M. Gunedhor, the learned counsel for the

petitioner submitted that the petitioner is innocent and he has

been falsely implicated in this case. He would submit that on

16.5.2022 at 12.00 noon, one Tabasum and Regina

(Tabasum's sister) invited the deceased Md. Abdullah for

dinner. The deceased along with three of his friends, namely,

the petitioner, Md. Baksar and Tarique Aziz went to Rajina

Begum's place to have dinner. At around 8.00 p.m., the

accused and the deceased were told by Regina Begum to take

her sister Tabasum along with them. As they disagree, it led to

a heated argument amongst themselves. Thereafter, the

petitioner along with two of his friends left the said place leaving

the deceased Md. Abdullah at Regina's place and the deceased

did not return home the said night. The petitioner on the same

night informed parents of the deceased about the confinement

by Tabasum, Regina Begum, Mijibur Rahaman and Bilkis.

Therefore, the petitioner is in no way connected with the crime

and he has been falsely impleaded as an accused.

4. The learned counsel further submitted that the

accused Tabasum, Md. Mijibur Rahaman, Rajina Begum and

Md. Ningthou @ Arif were granted bail by the learned Sessions

Judge, Thoubal on 22.8.2022 and 28.9.2022 respectively. He

Bail Appln. No. 22 of 2022 Page |4

would submit that under no fault, the petitioner has been in

custody and the investigating agency is yet to substantiate the

allegations levelled against the petitioner till date after his

detention on 22.5.2022 and rather the persons who are directly

connected to the death of the deceased are released on bail by

the Court. Thus, the learned counsel prayed for bail on the

ground that the petitioner is innocent of all charges; the

allegations are not substantiated till date; the petitioner has no

criminal antecedents and he will abide by all the conditions

imposed by this Court.

5. Per contra, Mr. H. Samarjit, the learned Additional

Public Prosecutor submitted that there is strong prima facie

case against the petitioner. He would submit that the

investigation reveals that there was intention/conspiracy on the

part of the petitioner to confine wrongfully the deceased Md.

Abdullah in collusion as he was more acquainted with Tabasum,

not ready to take Tabasum along with them and that the

petitioner was also the driver of the car and objected to carry

her even when deceased was ready to take her and even told

them if she had to come, then she should come in another

vehicle as he will not be able to carry in the vehicle driven by

him. Since the allegations levelled against the petitioner are

Bail Appln. No. 22 of 2022 Page |5

serious in nature, the learned Additional Public Prosecutor

objected for granting bail to the petitioner.

6. This Court considered the rival submissions and

also perused the materials available on record.

7. The allegation levelled against the petitioner and

other accused is that on continuous insistence to carry the

accused Tabasum along with the deceased by accused Rajina

Begum and Md. Ningthou, the deceased agreed to take

Tabasum as his wife with him. However, they strongly denied

to carry Tabasum and the petitioner herein told deceased to

remain there and he will send his parents, but deceased

requested him not to leave him alone. At that time, the

petitioner told deceased that nothing would happen and left the

place and he and his friends did not inform the matter to the

parents of the deceased in time and remained silent and he also

did not inform the police. However, on 18.5.2022 at about 2.00

p.m., he reported the matter to the Officer-in-Charge of Lilong

Police Station.

8. On the other hand, the petitioner contended that

on the same day night i.e. 16.5.2022, the petitioner and the

other accused informed the parents of the deceased that the

Bail Appln. No. 22 of 2022 Page |6

deceased was kept concealing in a wrongful confinement by the

other accused persons, namely Tabasum, Rajina Begum,

Mujibar Rahaman and Bilkis.

9. The learned Sessions Judge, while dismissing the

bail petition filed by the petitioner vide order dated 18.8.2022 in

Cril. Misc. (B) Case No.168 of 2022 observed that the petitioner

has failed to complain to the police timely about the wrongful

confinement of the deceased and he was outright against the

taking of Tabasum by the deceased as his wife with them and

hence there are grounds for conspiracy and common intention

to kill the deceased in collusion with the other accused.

10. The aforesaid observation of the learned Sessions

Judge cannot be endorsed at this stage, as the same would

involve oral and documentary evidence. Prima facie, the plea

of the prosecution about the intention/conspiracy on the part of

the petitioner to confine wrongfully the deceased in collusion of

others has not been established.

11. At this juncture, the learned counsel for the

petitioner submitted that the co-accused are released and thus

the petitioner may be granted bail as he is in custody from

22.5.2022. In support, the learned counsel for the petitioner has

Bail Appln. No. 22 of 2022 Page |7

produced the order dated 22.8.2022 passed by the learned

Sessions Judge, Thoubal in Cril. Misc. Case No.240 of 2022 in

respect of accused Tabasum, Md. Mujibur Rahaman and Rajina

Begum and also the order dated 28.9.2022 in Cril. Misc. (B)

Case No.297 of 2022.

12. On a perusal of the order dated 22.8.2022 passed

in Cril. Misc. Case No.240 of 2022, it is seen that the charge

sheet has already been filed on 6.8.2022. The relevant portion

of the order dated 22.8.2022 reads thus:

"It is not denied that the C.S. in c/w present case has been submitted through proper channel on 06.08.2022. It implies that investigation of the case is over. The accused have been in custody for about three months now.

So as to secure the presence of the accused before the Court at the time of trial, sufficient surety has to be imposed by the Court. The prosecution has not stated that the accused would threaten the PWs if released on bail or that they are likely to abscond if released on bail."

13. Since charge sheet has already been filed and co-

accused are released on bail, this Court is of the considered

Bail Appln. No. 22 of 2022 Page |8

view that the petitioner herein can also be enlarged on bail, as

no criminal antecedents against the petitioner has been placed

on record by the prosecution.

14. For granting bail to the petitioner, this Court is

relying upon the following decisions of the Hon'ble Supreme

Court:

(i) In State of Kerala v. Raneef, (2011) 1 SCC

784, the Hon'ble Supreme Court held:

"15. In deciding bail applications an important factor which should be certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-

affidavit), and we see no reason why he should be denied bail. A doctor

Bail Appln. No. 22 of 2022 Page |9

incarcerated for a long period may end up like Dr.Manettee in Charles Dicken's novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille."

(ii) In Vaman Narain Ghiya v. State of Rajasthan, (2009) 2 SCC 281, the Hon'ble Supreme Court held thus:

"7. Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on the one hand the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he is found

Bail Appln. No. 22 of 2022 P a g e | 10

guilty. Liberty exists in proportion to wholesome restraint, the more restraint on others to keep off from us, the more liberty we have. (See A.K.Gopalan v. State of Madras)"

15. It is well settled that while considering an

application for bail, detailed discussion of the evidence and

elaborate documentation of the merits is to be avoided. This

requirement stems from the desirability that no party should

have the impression that his case has been pre-judged.

Existence of a prima facie case is only to be considered.

Elaborate analysis or exhaustive exploration of the merits is not

required.

16. As stated supra, the allegations levelled against

the petitioner are to be proved by way of oral and documentary

evidence and thus, at this stage, an elaborate analysis on the

merits of the allegations cannot be gone into. Only on the

ground of considering the role played by the petitioner in the

alleged crime, this Court has noted the merits in order to

consider the bail application. This Court, in the earlier

paragraphs of this order, only discussed that the allegation

levelled against the petitioner is to be proved during trial.

Bail Appln. No. 22 of 2022 P a g e | 11

17. Time and again, the Hon'ble Supreme Court held

that a procedure which keeps large number of people behind

bars without trial, for long, cannot be regarded as "reasonable,

just, fair" so as to be in conformity with the provisions of Article

21 of the Constitution of India. Detaining the under-trial

prisoners in custody for an indefinite period is a gross violation

of Article 21 of the Constitution of India.

18. It is settled law that the grant of bail ought not to

be denied only on the perceived apprehension by the Court that

the accused, if restored to liberty, will tamper with the evidence.

There must be some prima facie evidence on record or

reasonable and justifiable grounds to believe that in case the

benefit of bail is extended to an accused, he is going to misuse

his liberty or he would create conditions which are not

conducive to hold a fair trial. The Hon'ble Supreme Court in

various judgments has confirmed that "bail is the rule and jail is

an exception. The object of bail is neither punitive nor

preventive but is meant to secure presence of the accused

during the trial.

19. When the under-trial prisoners are detained in jail

custody to an indefinite period, Article 21 of the Constitution of

Bail Appln. No. 22 of 2022 P a g e | 12

India is violated. Every person, detained or arrested, is entitled

to speedy investigation and trial. Merely the fact that serious

allegations are levelled against the petitioners, the petitioners

cannot be denied bail.

20. As stated supra, the petitioner is in custody for

more than five months. The primary purposes of bail in a

criminal case are to relieve the accused of imprisonment, to

relieve the State of the burden of detaining him, pending the

trial, and at the same time, to keep the accused constructively

in the custody of the Court, whether before or after conviction,

to assure that he will submit to the jurisdiction of the Court and

be in attendance thereon whenever his presence is required.

21. In Sanjay Chandra v. CBI, reported in (2012) 1

SCC 40, the Hon'ble Supreme Court observed as follows:

"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The Courts

Bail Appln. No. 22 of 2022 P a g e | 13

owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."

22. In a catena of decisions, the Hon'ble Supreme

Court as well as this Court held that bail is the rule and

committal to jail is an exception. The Courts have also observed

that refusal of bail is a restriction on the personal liberty of the

individual guaranteed under Article 21 of the Constitution of

India.

23. In State of Rajasthan v. Balchand alias Baliay,

(1977) 4 SCC 308, the Hon'ble Supreme Court held:

"2. The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative.

3. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh

Bail Appln. No. 22 of 2022 P a g e | 14

with us when considering the question of jail. So also the heinousness of the crime. Even so, the record of the petitioner is this case is that, while he has been on bail throughout in the trial court and he was released after the judgment of the High Court, there is nothing to suggest that he has abused the trust placed in him by the court; his social circumstances also are not so unfavourable in the sense of his being a desperate character or unsocial element who is likely to betrary the confidence that the court may place in him to turn up to take justice at the hands of the court. He is stated to be a young man of 27 years with a family to maintain. The circumstances and the social milieu do not militate against the petitioner being granted bail at this stage. At the same time any possibility of the absconsion or evasion or other abuse can be taken care of by a direction that the petitioner will report himself before the police station at Baren once every fortnight."

24. The principles relating to grant or refusal of bail

have been stated in the case of Kalyan Chandra Sarkar v.

Rajesh Ranjan, reported at (2004) 7 SCC 528. In Kalyan

Chandra Sarkar, supra, the Hon'ble Supreme Court observed

that the Court granting bail should exercise its discretion in a

Bail Appln. No. 22 of 2022 P a g e | 15

judicious manner and not as a matter of course. Though at the

stage of granting bail a detailed examination of evidence and

elaborate documentation of the merits of the case need not be

undertaken, there is a need to indicate in such orders reasons

for prima facie concluding why bail was being granted,

particularly, where the accused is charged of having committed

a serious offence. Any order devoid of such reasons would

suffer from non-application of mind. It is also necessary for the

Court granting ball to consider among other circumstances and

the following facts also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the Court in support of the charge.

25. In Dataram Singh v. State of Uttar Pradesh and

another, reported in (2018) 3 SCC 22, the Hon'ble Supreme

Court observed that a fundamental postulate of criminal

jurisprudence is the presumption of innocence, meaning

Bail Appln. No. 22 of 2022 P a g e | 16

thereby that a person is believed to be innocent until found

guilty. However, there are instances in our criminal law where a

reverse onus has been placed on an accused with regard to

some specific offences, but that is another matter and does not

detract from the fundamental postulate in respect of other

offences. Yet another important facet of our criminal

jurisprudence is that the grant of bail is the general rule and

putting a person in jail or in a prison or in a correctional home is

an exception. Unfortunately, some of these basic principles

appear to have been lost sight of with the result that more and

more persons are being incarcerated and for longer periods.

This does not do any good to our criminal jurisprudence or to

our society.

26. Thus, it is clear that grant or denial of bail is

entirely the discretion of the Judge considering the bail

application, but even so, the exercise of judicial discretion has

been circumscribed by a large number of decisions rendered by

the Hon'ble Supreme Court as well as by the High Courts in the

country.

27. To put it shortly, a humane attitude is required to

be adopted by a Judge while dealing with the ball application.

Bail Appln. No. 22 of 2022 P a g e | 17

Even if the offence is a serious offence, requires a humane

treatment by the Court, humane treatment to all including an

accused is requirement of law.

28. It is settled law that if there is no prima facie case

there is no question of considering other circumstances but

even where a prima facie case is established the approach of

the Court in the matter of bail is not that the accused should be

detained by way of punishment, but whether the presence of

the accused would be readily available for the trial or that he is

likely to abuse the discretion granted in his favour by tampering

with the evidence.

29. In the instant case, admittedly, there is no prima

facie case against the petitioner. Assuming that a prima facie

case exists, what is of the paramount importance is to consider

two vital aspects, namely (1) Whether there exist any chance of

the accused influencing the witness or tampering with evidence

and (2) Whether the accused is likely to abscond or flee away

the course of justice.

30. The petitioner in his petition stated that he shall

neither abscond nor fled from justice or trial and he will abide by

the conditions imposed by this Court. The petitioner specifically

Bail Appln. No. 22 of 2022 P a g e | 18

stated in his petition that if he is released on bail, he shall not

do anything to tamper and hamper with the evidence of the

prosecution or any such thing whatsoever to affect the case of

the prosecution.

31. Since the allegations levelled against the

petitioner would involve oral and documentary evidence, the

learned Special Judge ought not to have arrived at a finding that

the petitioner has concealed the real facts and there are

grounds for conspiracy and common intention to kill the

deceased in collusion with the other accused. Considering the

facts and circumstances of the case and the petitioner is in

custody since 22.5.2022 and also co-accused are released on

bail, this Court is inclined to grant bail to the petitioner.

32. Accordingly, Bail Application No.22 of 2022 is

allowed and the petitioner is ordered to be enlarged on bail in

connection with FIR No.33(05) under Sections 302/342/364/34

IPC on the file of Lilong Police Station, subject to the petitioner

furnishing a personal bond in the sum of Rs.2,00,000/-(Rupees

Two lakh) with two local sureties each of the like sum to the

satisfaction of the learned Sessions Judge, Thoubal, with the

following conditions:

Bail Appln. No. 22 of 2022 P a g e | 19

(i) The petitioner shall not leave the

place of his residence without

permission of the Court and shall

ordinarily reside at a place of his

residence and the complete address

of such place shall be furnished to the

learned Sessions Judge, Thoubal at

the time of release.

(ii) The petitioner shall appear before

learned Sessions Judge, Thoubal

weekly once i.e. every Monday at

10.30 a.m. until further orders.

(iii) If the petitioner has passport, he shall

also surrender the same before the

learned Sessions Judge, Thoubal.

(iv) The petitioner shall not contact nor

visit nor threaten nor offer any

inducement to any of the prosecution

witnesses.

Bail Appln. No. 22 of 2022 P a g e | 20

(v) The petitioner shall not tamper with

evidence nor otherwise indulge in any

act or omission that would prejudice

the proceedings in the matter.

(vi) Since charge sheet filed, the

petitioner is directed to co-operate

the Court concerned for further

proceedings and trial of the case.

(vii) The petitioner shall not commit similar

offence.

(viii) It is clarified that if the petitioner

misuses the liberty or violate any of

the conditions imposed upon him, the

prosecution shall be free to move this

Court for cancellation of the bail.

(ix) Any observations made hereinabove

shall not be construed to be a

reflection on the merits of the case

and shall remain confined to the

Bail Appln. No. 22 of 2022 P a g e | 21

disposal of the present bail

application.

(x) The Court concerned is directed to

expedite further proceedings and

complete the trial as expeditiously as

possible in accordance with law.

JUDGE

FR/NFR

Sushil

Bail Appln. No. 22 of 2022