Madhya Pradesh High Court: Atul Sreedharan, J., allowed a bail application of the applicant who was charged for offences under sections 420,467,468,471,472,474 read with section 120B of Penal Code, 1860. Investigating agency in the case was the Economic Offences Wing, Bhopal (EOW).
The complainant along with others had registered the FIR against the applicant and other co-accused persons. The property in question was a piece of land admeasuring 93.37 acres, the owner died leaving behind seven legal heirs. In the FIR it was alleged that t Mohammad Sharif had executed the power of attorney dated 17-01-1989 without the knowledge of the 6 legal heirs and altered the remaining paragraphs of the power of attorney and thereby committed forgery. It was also alleged that Mohammad Sharif, in connivance with other accused persons, executed various sale deeds in favour of his family members and friends one of them being the applicant and she was sought to be arrested that day for this alleged offence that was committed thirty-one years ago.
Observation and Analysis:
Case after case this court has observed that the District Judiciary is extremely tight-fisted when it comes to granting bail. Applications are routinely dismissed on cyclostyled grounds that the offence alleged is serious or that the investigation is still in progress or that the accused may influence the witnesses.
The Court shared figures with regard to pendency of bail applications before the three benches of the High Court and the number of Criminal Appeals that have been withdrawn by the appellants (still undergoing their sentence and who have not got the benefit of suspension of sentence), number of criminal appeals withdrawn from the High Court in the year 2020. The Court pointed out that huge burden of bail matters that has been shifted to the High Court, but the District Judiciary can hardly be held responsible because of professional hardships they may have to face, if they indeed start deciding bail applications applying the principle of “Bail and not Jail”.
The Court drew the attention of District Judiciary to the overcrowding of jails in the State. The Court discussed the case of Joginder Kumar v. State of U.P., (1994) 4 SCC 260 where the Supreme Court had extensively discussed the power of the police to affect an arrest. The Court further in full detail discussed the recent judgment of the Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 where the Court had scathingly indicted the police for still bearing a colonial mindset and disdain for the liberty of the citizen.
The Court passed certain directions in order to ensure that the directions passed by the Supreme Court in Arnesh Kumar’s case were scrupulously implemented and followed by the police and the Judicial Magistrates in Madhya Pradesh:
Directions to the Police
- where for an offence, the maximum imprisonment provided is up to 7 years, the accused shall not be arrested by the police as an ordinary course of action. Unless it is a special statute mandating such an arrest.
- Before effecting an arrest in such a case, the police would have to record its reasons that the arrest was essential to prevent such person from committing any further offence, or for a proper investigation of the case, or to prevent the accused from causing the disappearance of evidence or on the basis of credible apprehension that the accused would tamper with evidence or prevent a witness from disclosing such facts to the court or to the police which thereby necessitates the arrest of the accused.
- The State Police is directed to format and prepare a check list of pre-conditions fulfilled by the police under section 41(1)(b)(ii) of the Cr.P.C, while arresting an accused for offences bearing a maximum punishment up to 7 years. It is mandatory to supply a copy of the check list along with the remand application, to the Magistrate authorised to further remand the accused to police or judicial custody.
- Where decision is taken not to arrest the accused, the police shall forward an intimation to the Magistrate within two weeks of the registration of the FIR. This period may be extended by the Superintendent of Police of the district concerned with reasons to be recorded in writing.
- Where interrogation of the accused is required, notice in terms of section 41A Cr.P.C or s. 160 Cr.P.C be served on the accused within two weeks from the date of registration of the FIR which may be extended by the Superintendent of Police of the district concerned for reasons to be recorded in writing.
- Where the police does not arrest the accused and upon notice u/s. 41A or 160 Cr.P.C, the accused appears before the police and assists the police in the course of investigation, in such a situation, the police are not to arrest the accused unless, there exists compelling reasons which must be recorded, as given in paragraph 31.2.
- If the police does not perform as required of them as hereinabove, it would constitute contempt of the order passed by this court in addition to such other action, which may be taken against the erring officer on the administrative side.
Directions to the Judicial Magistrates:
- The Magistrate, while exercising powers of remand, shall ascertain if the arrest effected by the police satisfies the requirements of section 41 of the CRPC as provided in paragraph 11.2 of Arnesh Kumar’s case (see paragraph 17 supra).
- The Magistrate shall ascertain the availability of the check list as ordered by the Supreme Court in paragraph 11.3 of Arnesh Kumar’s case.
- If there is non-compliance of paragraph 11.2 and/or 11.3 of Arnesh Kumar’s case, the Magistrate shall not authorise the further detention of the accused and shall release forthwith as the arrest itself is unlawful and therefore, his detention would also be rendered unlawful on account of the police not having fulfilled the requirements of section 41 of CRPC.
- It is mandatory for the Magistrate authorising detention to record his independent satisfaction and also ensure in his order of remand that his satisfaction for further remand of the accused stands satisfied in compliance of paragraph 11.4 of Arnesh Kumar’s judgement.
- The Magistrate shall also satisfy himself whether specific reasons have been recorded for the arrest of the accused and whether those reasons are relevant, raising a reasonable conclusion that one of the conditions for further detention of the accused as an under trial is satisfied.
- Failure on the part of the Magistrate to perform as directed hereinabove, my see the initiation of proceedings against such Magistrate on the administrative side.
While considering an application for bail, the following may be kept in mind;
- Whether, granting bail to the under-trial would result in him attempting to overawe and influence the witness or influence the course of investigation, either by threat of dire consequences or by monetary inducement?
- Whether, the probability of the under-trial, upon his release, committing another crime while on bail, would be germane while considering grant of bail to recidivists or repeat offenders?
- Whether, there is a probability upon the release of the accused on bail that he would fall victim of any vengeful action by the Complainant?
- Whether, the release of the accused on bail would raise a reasonable apprehension of breach of peace, and social or civil unrest, on account of the nature of the offence alleged against him?
- Whether, the accused would destroy the evidence yet to be collected during investigation, upon his release on bail?
- Whether, the overwhelming nature of prima facie evidence against the accused is such that he may be tempted to abscond and evade the process of justice all together if he is enlarged on bail?
The Court allowed the bail application and requested the office to circulate the directions to all the districts and disseminate to the lowest functionary, the directions given by this Court.
[Zarina Begum v. State of M.P., 2021 SCC OnLine MP 961, decided on 13-05-2021]
Suchita Shukla, Editorial Assistant has put this report together
For the applicant: Mr Sankalp Kochar and Mr Aman Dawra
For the respondent: Mr A. Rajeshwar Rao