(2018) 2 MLJ (Crl) Dataram Singh v.

State of Uttar Pradesh SC 201

(2018) 2 MLJ (Crl) 201 (SC) activity or alleged illegal activity – Appro-
LNIND 2018 SC 44 priate if Appellant is granted bail on con-
ditions that may be reasonably fixed by
IN THE SUPREME COURT OF INDIA trial judge – Appeal allowed.
Present: Held: During the entire period of investi-
Hon’ble Mr. Justice Madan B. Lokur and gations which appear to have been spread over
Hon’ble Mr. Justice Deepak Gupta seven months, the appellant was not arrested
Crl. A. No. 227 of 2018 6th February, 2018 by the investigating officer. Even when the
appellant apprehended that he might be ar-
Dataram Singh ... Appellant rested after the charge sheet was filed against
Versus him, he was not arrested for a considerable
State of Uttar Pradesh and Another period of time. When he approached the
... Respondents Allahabad High Court for quashing the FIR
lodged against him, he was granted two
Bail – Grant – Code of Criminal Proce- months time to appear before the trial judge.
dure, 1973 (Code 1973), Section 436 – In- All these facts are an indication that there was
dian Penal Code, 1860 (Code 1860), Sec- no apprehension that the appellant would
tions 419, 420, 406 and 506 – Negotiable abscond or would hamper the trial in any
Instruments Act, 1881 (Act 1881), Section manner. That being the case, the trial judge, as
138 – Complainant lodged First Informa- well as the High Court ought to have judi-
tion Report (FIR) alleging that Appellant ciously exercised discretion and granted bail
had cheated him of specific amount and to the appellant. It is nobody’s case that the
committed offence punishable under Sec- appellant is a shady character and there is
tions 419, 420, 406 and 506 of Code 1860 nothing on record to indicate that the appellant
and also alleged that Appellant had stopped had earlier been involved in any un-acceptable
payment of cheque in violation of Section activity, let alone any alleged illegal activity.
138 of Act, 1881 – Appellant was taken into In our view, taking all these and other factors
judicial custody and his bail application into consideration, it would be appropriate if
was rejected by Trial Court and High the appellant is granted bail on conditions that
Court, hence this appeal – Whether bail
may be reasonably fixed by the trial judge.
ought to be granted to Appellant – Held,
during entire period of investigations Ap- [Paras 17 and 18]
pellant was not arrested by investigating
officer – Even when Appellant appre- CASES CITED/REFERRED TO:
hended that he might be arrested after
Emperor v. Hutchinson AIR 1931 ALL 356 (Con-
charge sheet was filed against him, he was sidered) [Para 6]
not arrested for considerable period of time
– All facts are indication that there was no Gurbaksh Singh Sibbia v. State of Punjab LNIND
apprehension that Appellant would ab- 1980 SC 168 (Cited) [Para 6]
scond or would hamper trial in any manner In Re-Inhuman Conditions in 1382 Prisons
– Trial judge, as well as High Court ought LNIND 2017 SC 2985 (Cited) [Para 5]
to have judiciously exercised discretion and Nagendra v. King-Emperor AIR 1924 CAL 476
granted bail to Appellant – Nothing on (Considered) [Para 6]
record to indicate that Appellant had ear- Nikesh Tarachand Shah v. Union of India AIR
lier been involved in any unacceptable 2017 SC 5500 (Considered) [Para 6]
MLJ-CRIMINAL-25-04-2018 Postal Page No. 85
202 SC Madras Law Journal Reports — (Criminal) (2018) 2 MLJ (Crl)
ADVOCATES APPEARED: accused was arrested during investigations
Dharnidhar Jha, Sr. Adv., Rajnish Kumar Jha, when that person perhaps has the best oppor-
Raman Kumar Singh, Mahendra Kumar, for tunity to tamper with the evidence or influence
Appellant witnesses. If the investigating officer does not
Ms. Aishwarya Bhati, AAG, D.P. Chaturvedi, Ravi find it necessary to arrest an accused person
Panwar, Anuvrat Sharma, Ms. Alka Sinha, for during investigations, a strong case should be
Respondents made out for placing that person in judicial
custody after a charge sheet is filed. Similarly,
JUDGMENT it is important to ascertain whether the ac-
cused was participating in the investigations
Mr. MADAN B. LOKUR, J. to the satisfaction of the investigating officer
Leave granted. and was not absconding or not appearing
when required by the investigating officer.
2. A fundamental postulate of criminal Surely, if an accused is not hiding from the
jurisprudence is the presumption of inno- investigating officer or is hiding due to some
cence, meaning thereby that a person is be- genuine and expressed fear of being
lieved to be innocent until found guilty. How- victimised, it would be a factor that a judge
ever, there are instances in our criminal law would need to consider in an appropriate case.
where a reverse onus has been placed on an It is also necessary for the judge to consider
accused with regard to some specific offences whether the accused is a first-time offender or
but that is another matter and does not detract has been accused of other offences and if so,
from the fundamental postulate in respect of the nature of such offences and his or her
other offences. Yet another important facet of general conduct. The poverty or the deemed
our criminal jurisprudence is that the grant of indigent status of an accused is also an ex-
bail is the general rule and putting a person in tremely important factor and even Parliament
jail or in a prison or in a correction home has taken notice of it by incorporating an
(whichever expression one may wish to use) Explanation to Section 436 of the Code of
is an exception. Unfortunately, some of these Criminal Procedure, 1973. An equally soft
basic principles appear to have been lost sight approach to incarceration has been taken by
of with the result that more and more persons Parliament by inserting Section 436A in the
are being incarcerated and for longer periods. Code of Criminal Procedure, 1973.
This does not do any good to our criminal
jurisprudence or to our society. 5. To put it shortly, a humane attitude is
required to be adopted by a judge, while
3. There is no doubt that the grant or denial dealing with an application for remanding a
of bail is entirely the discretion of the judge suspect or an accused person to police custody
considering a case but even so, the exercise of or judicial custody. There are several reasons
judicial discretion has been circumscribed by for this including maintaining the dignity of an
a large number of decisions rendered by this accused person, howsoever poor that person
Court and by every High Court in the country. might be, the requirements of Article 21 of the
Yet, occasionally there is a necessity to intro- Constitution and the fact that there is enor-
spect whether denying bail to an accused mous overcrowding in prisons, leading to
person is the right thing to do on the facts and social and other problems as noticed by this
in the circumstances of a case. Court in In Re-Inhuman Conditions in 1382
4. While so introspecting, among the fac- Prisons (2017) 10 SCC 658 : LNIND 2017 SC
tors that need to be considered is whether the 2985.
MLJ-CRIMINAL-25-04-2018 Postal Page No. 86
(2018) 2 MLJ (Crl) Dataram Singh v. State of Uttar Pradesh SC 203
6. The historical background of the provi- in favour of the complainant (returning a part
sion for bail has been elaborately and lucidly of the amount of Rs. 37 lakhs) but had stopped
explained in a recent decision delivered in payment of that cheque in violation of Section
Nikesh Tarachand Shah v. Union of India 138 of the Negotiable Instruments Act, 1881.
2017 (13) SCALE 609 : AIR 2017 SC 5500 10. Thereafter the complainant filed Com-
going back to the days of the Magna Carta. In plaint Case No. 206 of 2016 on or about 21st
that decision, reference was made to January, 2016 alleging the commission of an
Gurbaksh Singh Sibbia v. State of Punjab AIR offence by the appellant under Section 138 of
1980 SC 1632 : (1980) 2 SCC 565 : LNIND the Negotiable Instruments Act, 1881. Cog-
1980 SC 168 in which it is observed that it was nizance was taken and summons issued to the
held way back in Nagendra v. King-Emperor appellant by the concerned Magistrate in the
AIR 1924 CAL 476 that bail is not to be complaint case.
withheld as a punishment. Reference was also
made to Emperor v. Hutchinson AIR 1931 11. Much later, on or about 15th August,
ALL 356 wherein it was observed that grant 2016, the investigating officer filed a charge
of bail is the rule and refusal is the exception. sheet against the appellant being Case Crime
The provision for bail is therefore age-old and No. 18 of 2017. It is not clear why the Case
the liberal interpretation to the provision for Crime was registered so late (it may be a
bail is almost a century old, going back to typo), but be that as it may, it appears that
colonial days. during the investigations the appellant was not
7. However, we should not be understood to arrested.
mean that bail should be granted in every case. 12. Fearing arrest after the charge sheet was
The grant or refusal of bail is entirely within filed against him, the appellant moved the
the discretion of the judge hearing the matter Allahabad High Court for quashing the FIR
and though that discretion is unfettered, it lodged against him. The record of the case
must be exercised judiciously and in a humane reveals that on 7th February, 2017 the High
manner and compassionately. Also, condi- Court declined to quash the FIR, but granted
tions for the grant of bail ought not to be so two months time to the appellant to appear
strict as to be incapable of compliance, before the trial judge. Presumably, it was
thereby making the grant of bail illusory. directed that during this period, the appellant
8. We have been constrained to make these should not be arrested. On 11th April, 2017 the
observations in the present appeal, in which appellant approached the Allahabad High
the grant of bail has not been opposed by the Court once again, this time for a further period
State, but there is vehement opposition from of two weeks to enable him to appear before
the complainant. the trial judge. Time as prayed for, appears to
9. On 13th January, 2016 the complainant have been granted and eventually on 24th
lodged a First Information Report (FIR) No. April, 2017 the appellant appeared before the
16 of 2016 at Police Station Sahjanawa, trial judge and was taken into judicial custody.
Gorakhpur, Uttar Pradesh, alleging that the The appellant has been in judicial custody
appellant had cheated him of an amount ever since.
exceeding Rs. 37 lakhs and had therefore 13. A bail application moved by the appel-
committed an offence punishable under Sec- lant was rejected by the trial judge on 27th
tions 419, 420, 406 and 506 of the Indian April, 2017 and another application for bail
Penal Code. It was also alleged that the was rejected by the Allahabad High Court on
appellant had issued a cheque for Rs. 18 lakhs 21st September, 2017 (impugned before us).
MLJ-CRIMINAL-25-04-2018 Postal Page No. 87
204 SC Madras Law Journal Reports — (Criminal) (2018) 2 MLJ (Crl)
14. On 23rd January, 2018 when the appeal 17. In our opinion, it is not necessary to go
was listed before us, the complainant was into the correctness or otherwise of the alle-
represented by learned counsel even though gations made against the appellant. This is a
he was not a party to the proceedings. How- matter that will, of course, be dealt with by the
ever, on the oral request of learned counsel for trial judge. However, what is important, as far
the appellant the complainant was impleaded as we are concerned, is that during the entire
as a party respondent. Notice was then issued period of investigations which appear to have
to the State of Uttar Pradesh, while notice was been spread over seven months, the appellant
accepted by learned counsel for the complain- was not arrested by the investigating officer.
ant on his behalf. A request was made for Even when the appellant apprehended that he
filing a reply to the petition for special leave might be arrested after the charge sheet was
to appeal and two days time was granted for filed against him, he was not arrested for a
this purpose since the appellant was in judicial considerable period of time. When he ap-
custody for a considerable period. proached the Allahabad High Court for quash-
ing the FIR lodged against him, he was
15. Even though the State of Uttar Pradesh granted two months time to appear before the
has been served in the appeal, no one has put trial judge. All these facts are an indication
in appearance on its behalf. As far as the that there was no apprehension that the ap-
complainant is concerned, no reply was filed pellant would abscond or would hamper the
by the time the matter was taken up for trial in any manner. That being the case, the
consideration on 29th January, 2018. Accord- trial judge, as well as the High Court ought to
ingly, the matter was adjourned to 2nd Feb- have judiciously exercised discretion and
ruary, 2018 by which date also no reply was granted bail to the appellant. It is nobody’s
filed by the complainant. As mentioned above, case that the appellant is a shady character and
no one has put in appearance on behalf of the there is nothing on record to indicate that the
State of Uttar Pradesh to oppose the grant of appellant had earlier been involved in any
bail to the appellant. unacceptable activity, let alone any alleged
16. Learned counsel for the complainant illegal activity.
vehemently contended that the appellant had 18. In our view, taking all these and other
duped him of a considerable amount of money factors into consideration, it would be appro-
and that looking to the seriousness of the priate if the appellant is granted bail on
allegations against him, this was not a case in conditions that may be reasonably fixed by the
which the appellant ought to be granted bail by trial judge. We order accordingly.
this Court. Learned counsel supported the
view taken by the trial judge as well as by the 19. We should not be understood to have
Allahabad High Court. He argued that given expressed any opinion on the allegations made
the conduct of the appellant in not only against the appellant, both in the charge sheet
cheating the complainant and depriving him as well as in the complaint case filed against
of a considerable sum of money but thereafter him.
issuing a cheque for which payment was 20. The appeal is allowed.
stopped made it an appropriate case for dis-
missal. Appeal allowed.

MLJ-CRIMINAL-25-04-2018 Postal Page No. 88