REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.227 /2018 (ARISING OUT OF S.L.P. (CRL.) NO. 151 OF 2018)

Dataram Singh …Appellant

Versus

State of Uttar Pradesh & Anr.         …Respondents

J U D G M E N T

Madan B. Lokur, J.

1. Leave granted.

2. A  fundamental  postulate  of  criminal  jurisprudence  is  the   

presumption of innocence, meaning 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

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correction  home  (whichever  expression  one  may  wish  to  use)  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.

3. There is no doubt that the grant or denial of bail is entirely the   

discretion of the judge considering a case but even so, the exercise of   

judicial discretion has been circumscribed by a large number of decisions  

rendered by this Court and by every High Court in the country.   Yet,   

occasionally there is a necessity to introspect whether denying bail to an

accused  person  is  the  right  thing  to  do  on  the  facts  and  in  the   

circumstances of a case.

4. While  so  introspecting,  among  the  factors  that  need  to  be

considered  is  whether  the  accused  was  arrested  during  investigations

when that  person perhaps has the best  opportunity to  tamper  with the

evidence or influence witnesses.  If the investigating officer does not find

it necessary to arrest an accused person during investigations, a strong

case should be made out for placing that person in judicial custody after

a charge sheet is filed. Similarly, it is important to ascertain whether the

accused was participating in the investigations to the satisfaction of the

investigating  officer  and  was  not  absconding  or  not  appearing  when

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required by the investigating officer. Surely, if an accused is not hiding

from  the  investigating  officer  or  is  hiding  due  to  some  genuine  and

expressed fear of being victimised, it would be a factor that a judge would

need to consider in an appropriate case. It is also necessary for the judge

to  consider  whether  the  accused  is  a  first-time  offender  or  has  been

accused of other offences and if so, the nature of such offences and his or

her  general  conduct.  The poverty or  the deemed indigent  status  of  an

accused is also an extremely important factor and even Parliament has

taken notice of it by incorporating an Explanation to Section 436 of the

Code  of  Criminal  Procedure,  1973.  An  equally  soft  approach  to

incarceration has been taken by Parliament by inserting Section 436A in

the Code of Criminal Procedure, 1973.

5. To put it shortly, a humane attitude is required to be adopted by a

judge, while dealing with an application for remanding a suspect or an

accused person to police custody or judicial custody. There are several

reasons for this including maintaining the dignity of an accused person,

howsoever poor that person might be, the requirements of Article 21 of

the  Constitution  and  the  fact  that  there  is  enormous  overcrowding  in

prisons, leading to social and other problems as noticed by this Court in

In Re-Inhuman Conditions in 1382 Prisons.1

1 (2017) 10 SCC 658

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6. The  historical  background  of  the  provision  for  bail  has  been   

elaborately  and  lucidly  explained  in  a  recent  decision  delivered  in   

NikeshTarachand Shah v. Union of India2 going back to the days of the  

Magna Carta.  In that decision, reference was made to Gurbaksh Singh  

Sibbia v. State of Punjab3  in which it is observed that it was held way  

back in Nagendra v. King-Emperor4 that bail is not to be withheld as a  

punishment.  Reference  was  also  made  to  Emperor  v.  Hutchinson5   

wherein it was observed that grant of bail is the rule and refusal is the   

exception.  The provision for bail  is therefore age-old and the liberal   

interpretation to the provision for bail is almost a century old, going back  

to colonial days.

7. However, we should not be understood to mean that bail should be  

granted in every case. The grant or refusal of bail is entirely within the  

discretion of the judge hearing the matter and though that discretion is   

unfettered, it must be exercised judiciously and in a humane manner and  

compassionately.   Also, conditions for the grant of bail ought not to be so

strict as to be incapable of compliance, thereby making the grant of bail  

illusory.

2 2017 (13) SCALE 609 3 (1980) 2 SCC 565 4 AIR 1924 Cal 476 5 AIR 1931 All 356

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8. We  have  been  constrained  to  make  these  observations  in  the   

present appeal, in which the grant of bail has not been opposed by the   

State, but there is vehement opposition from the complainant.

9. On 13th January, 2016 the complainant lodged a First Information  

Report (FIR) No.16 of 2016 at Police Station Sahjanawa, Gorakhpur,   

Uttar Pradesh, alleging that the appellant had cheated him of an amount  

exceeding  Rs.37  lakhs  and  had  therefore  committed  an  offence   

punishable under Sections 419, 420, 406 and 506 of the Indian Penal   

Code. It was also alleged that the appellant had issued a cheque for Rs.

18 lakhs in favour of the complainant (returning a part of the amount of   

Rs. 37 lakhs) but had stopped payment of that cheque in violation of   

Section 138 of the Negotiable Instruments Act, 1881.

10. Thereafter the complainant filed Complaint Case No. 206 of 2016  

on or about 21st January, 2016 alleging the commission of an offence by  

the appellant under Section 138 of the Negotiable Instruments Act, 1881.

Cognizance  was  taken  and  summons  issued  to  the  appellant  by  the   

concerned Magistrate in the complaint case.

11. Much  later,  on  or  about  15th August,  2016,  the  investigating   

officer filed a charge sheet against the appellant being Case Crime No. 18

of 2017. It is not clear why the Case Crime was registered so late (it may  

be a typo), but be that as it may, it appears that during the investigations  

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the appellant was not arrested.

12. Fearing arrest  after  the charge sheet  was filed against  him, the   

appellant moved the Allahabad High Court for quashing the FIR lodged

against him. The record of the case reveals that on 7th February, 2017 the

High Court declined to quash the FIR, but granted two months time to the

appellant to appear before the trial judge. Presumably, it was directed that

during this period, the appellant  should not be arrested. On 11 th April,

2017 the appellant approached the Allahabad High Court once again, this

time for a further period of two weeks to enable him to appear before the

trial  judge.  Time  as  prayed  for,  appears  to  have  been  granted  and

eventually  on  24th April,  2017  the  appellant  appeared  before  the  trial

judge  and  was  taken  into  judicial  custody.  The  appellant  has  been  in

judicial custody ever since.

13. A bail application moved by the appellant was rejected by the trial

judge on 27th April, 2017 and another application for bail was rejected by

the Allahabad High Court on 21st September, 2017 (impugned before us).

14. On 23rd January, 2018 when the appeal was listed before us, the

complainant was represented by learned counsel even though he was not

a  party  to  the  proceedings.  However,  on  the  oral  request  of  learned

counsel  for  the  appellant  the  complainant  was  impleaded  as  a  party

respondent. Notice was then issued to the State of Uttar Pradesh, while

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notice was accepted by learned counsel for the complainant on his behalf.

A request was made for filing a reply to the petition for special leave to

appeal and two days time was granted for this purpose since the appellant

was in judicial custody for a considerable period.   

15. Even though the  State  of  Uttar  Pradesh has  been served in  the

appeal,  no  one  has  put  in  appearance  on  its  behalf.  As  far  as  the

complainant is concerned, no reply was filed by the time the matter was

taken up for consideration on 29th January, 2018. Accordingly, the matter

was adjourned to 2nd February, 2018 by which date also no reply was filed

by the complainant. As mentioned above, no one has put in appearance on

behalf of the State of Uttar Pradesh to oppose the grant of bail to the

appellant.

16. Learned counsel for the complainant vehemently contended that   

the appellant had duped him of a considerable amount of money and that  

looking to the seriousness of the allegations against him, this was not a  

case  in  which  the  appellant  ought  to  be  granted  bail  by  this  Court.   

Learned counsel supported the view taken by the trial judge as well as by  

the Allahabad High Court.   He argued that  given the conduct of  the   

appellant in not only cheating the complainant and depriving him of a   

considerable sum of money but thereafter issuing a cheque for which   

payment was stopped made it an appropriate case for dismissal.

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17. In our  opinion,  it  is  not  necessary to go into the correctness or

otherwise of the allegations made against the appellant. This is a matter

that will, of course, be dealt with by the trial judge. However, what is

important, as far as we are concerned, is that during the entire period of

investigations which appear to have been spread over seven months, the

appellant  was not  arrested by the investigating officer.  Even when the

appellant  apprehended that  he might be arrested after the charge sheet

was filed against him, he was not arrested for a considerable period of

time. When he approached the Allahabad High Court for quashing the

FIR lodged against him, he was granted two months time to appear before

the  trial  judge.  All  these  facts  are  an  indication  that  there  was  no

apprehension that the appellant would abscond or would hamper the trial

in any manner. That being the case, the trial judge, as well as the High

Court ought to have judiciously exercised discretion and granted bail to

the appellant. It is nobody’s case that the appellant is a shady character

and there is nothing on record to indicate that the appellant had earlier

been involved in any unacceptable activity, let alone any alleged illegal

activity.

18. In our view, taking all these and other factors into consideration, it  

would be appropriate if the appellant is granted bail on conditions that   

may be reasonably fixed by the trial judge. We order accordingly.

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19. We should not be understood to have expressed any opinion on the  

allegations made against the appellant, both in the charge sheet as well as  

in the complaint case filed against him.

20. The appeal is allowed.

 ...……………………J  (Madan B. Lokur)  

                                                                     ...…………………....J New Delhi;                       (Deepak Gupta)       February 6, 2018   

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