January 2023 - The Law Literates

22Jan, 2023

Accused was rightly acquitted in cheque bounce case as complainant’s ITR proved his financial incapacity to give loan: SC

FEMA, BANKING & INSURANCE : SC upholds acquittal in cheque bounce case as Trial Court’s order had considered complainant’s ITR, non-production of pro-notes, witnesses & all circumstances
• After analyzing all pieces of evidence, the learned Trial Court found that the Income Tax Returns of the complainant did not disclose that he lent amount to the accused, and that the declared income was not sufficient to give loan of Rs.3 lakh. Therefore, the case of the complainant that he had given a loan to the accused from his agricultural income was found to be unbelievable by the learned Trial Court. The learned Trial Court found that it was highly doubtful as to whether the complainant had lent an amount of Rs.3 lakh to the accused.
• The learned Trial Court also found that the complaint had failed to produce the promissory note alleged to have been executed by the accused on 25th October 1998.
• After taking into consideration the defence witnesses and the attending circumstances, the learned Trial Court found that the defence was a possible defence and as such, the accused was entitled to benefit of doubt.
• The standard of proof for rebutting the presumption is that of preponderance of probabilities. Applying this principle, the learned Trial Court had found that the accused had rebutted the presumption on the basis of the evidence of the defence witnesses and attending circumstances. The scope of interference in an appeal against acquittal is limited. Unless the High Court found that the appreciation of the evidence is perverse, it could not have interfered with the finding of acquittal recorded by the learned Trial Court. In that view of the matter, the High Court was not justified in reversing the order of acquittal of the appellant.

Adv Megha

SUPREME COURT OF INDIA
Rajaram
v.
Maruthachalam
B.R. GAVAI AND M. M. SUNDRESH, JJ.
CRIMINAL APPEAL NOS. 1978 AND 1990 OF 2013
CIVIL APPEAL NOS. 10500 AND 10501 OF 2013
JANUARY 18, 2023
JUDGMENT

22Jan, 2023

Sections 302 and 34 IPC Appeal against conviction Murder Dying declaration Deceased in her dying declaration deposed that accused persons

Judgment.Cr.Apeal.47.2000.doc

[ BOMBAY HIGH COURT ]

Kanaji vs State of Maharashtra

_*• Sections 302 and 34 IPC Appeal against conviction Murder Dying declaration Deceased in her dying declaration deposed that accused persons, her husband and his first wife poured kerosene and set her on fire First dying declaration immediately recorded at hospital in presence of Doctor, Special Executive Officer and PSI One can containing Kerosene, one burnt saree, and one burn quilt, were found in the kitchen and the flooring was cleaned Accused persons had not taken the defence that the Ratna had committed suicide Evidence of PSI showing that deceased alone came to Police Station in burnt condition and one Constable was deputed to shift her to hospital – Doctor also stated that deceased was brought to hospital by one Constable – Plea of accused that he carried deceased to hospital, unacceptable – Deceased died homicidal death Conviction proper. [Paras 23, 25, 26, 27, 28 and

23. Firstly, we consider the issue that the death of Ratna being accidental or homicidal ? Learned Trial Court has dealt with this issue in detail in paragraph 7, 8 and 9 of the judgment. It is not in dispute that the deceased Ratna was residing with accused nos. 1 and 2 under same roof. It is also not in dispute that on 04.09.1997 Ratna was in the house of accused no. 1 and at about 04.30 a.m she sustained 100% burns in the house of accused no. 1. Dr. Ansari (PW 1), the MedicalOfficer in IGM Hospital, Bhiwandi stated that Ratna was brought by police constable D.M. Shirsat to the hospital. Then Ratna gave the history to him that her husband i.e. accused no. 1 and his first wife poured kerosene and set her on fire on 04.09.1997 at about 04.30 a.m. Considering this evidence, it is proved that the Ratna died homicidal death.

25. At the cost of repetition, we may state that Ratna was firstly taken to IGM Hospital, Bhiwandi, where PSI Shendage (PW 8) recorded dying declaration in presence of Special Executive Officer and Medical Officer. Dr. Ansari (PW 1). Ratna stated that her husband i.e. accused no. 1 and his first wife poured kerosene and set her on fire on 04.09.1997 at about 04.30 a.m. It also came on record that in the Register at Exh. 15, maintained in IGM Hospital, Bhiwandiwherein it has been recorded that burns were caused by husband and his first wife by pouring kerosene.
26. In the spot panchnama, it can be seen that panchnama was drawn up in the morning and at that time there was kerosene smell in the kitchen. One can containing kerosene, one burnt saree, and one burnt quilt, were found in the kitchen and the flooring was cleaned. If we consider this aspect of the matter, it can be said that Ratna did not sustain 100% burns accidentally or her attempt was to commit suicide. It is important to note that both the accused persons had not taken the defence that the Ratna had committed suicide. It was further found that floor was cleaned.
27. It is the the submission of learned Counsel appearing for the Appellant that the deceased was tutored by Sumanbai (PW 3) and Vimal (PW 5). In their evidence, it is reflected that both the witnesses were called by police. Vimal (PW 5) in her deposition stated that she was at Bhiwandi, and police informed her about the incident and then she went to Ratna at Thane Civil Hospital on second day. The first dying declaration was immediately recorded at IGM Hospital,Bhiwandi only in presence of Dr. Ansari (PW 1), Special Executive Officer and PSI Shendage (PW 8). Thus, it can safely be said that deceased had no occasion to meet with these two witnesses and was not tutored. Considering this aspect, we are unable to accept the submission that the dying declarations are doubtful or victim was tutored.
28. The accused no. 1 in his statement under Section 313 of Cr.P.C. stated that he had carried deceased Ratna to hospital but, there is no supportive evidence to it. On the contrary, the evidence of PSI Shendage (PW 8) clearly shows that Ratna alone came to Bhiwandi Town Police Station in burnt condition and he deputed one constable to shift her to IGM, Hospital. Dr. Ansari (PW 1) also stated in his evidence that the deceased Ratna was brought to hospital by one constable Shirsat.
29. Considering the above referred material and evidence, it can be stated that the death of deceased Ratna is a homicidal death and the Appellants are the author of crime.

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Kanaji Laxman Chavan & Smt. Hansa Kanji Chavan vs state of Maharastra Judgment

19Jan, 2023

Section 326 IPC Section 82 CRPC Appeal against acquittal – For offence of voluntary causing grievous hurt by dangerous weapons or means –

BOMBAY HIGH COURT

State of Goa vs Venkatesh CRL-A 37/01

Section 326 IPC Section 82 CRPC Appeal against acquittal – For offence of voluntary causing grievous hurt by dangerous weapons or means – Appellant/State was expected to serve respondent(original accused) – But the record shows that State was unable to serve respondent, as a consequence of which nonbailable warrants were issued against respondent – Despite number. of opportunities granted, appellant-State has not been able to serve notice to respondent or to execute non-bailable warrant – Appeal pending for 21 years – Held, no purpose would be served by keeping appeal pending Appeal dismissed in default. [Paras and 8]

4. Thereafter execution of the non-bailable warrant was awaited and the subsequent orders show that on number of occasions time was granted to the appellant/State to take necessary steps in the matter, on a few occasions recording that the adjournment was granted as a matter of last chance.
5. By order dated 24.6.2019, this Court recorded that several attempts were made to serve the respondent and to trace him, including by issuing a proclamation for person absconding under Section 82 of the Cr.P.C., yet the respondent could not be served. By the said order, fresh non-bailable warrant was issued to be executed by the Superintendent of Police, District Warangal, which was the last known place of residence of the respondent.

28/02/22

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Judgment Bombay HC display_pdf (33)

16Jan, 2023

Section 439 CRPC Sections 302, 307, 506(2) and 114 IPC Gujarat Police Act Section 135 Regular bail Person should be deprived of his liberty upon only belief that he will tamper with witnesses

[GUJARAT HIGH COURT ]

NARANSINH vs STATE OF GUJARAT CRMA 21006/22 23/12/22

•Section 439 CRPC Sections 302, 307, 506(2) and 114 IPC Gujarat Police Act Section 135 Regular bail Person should be deprived of his liberty upon only belief that he will tamper with witnesses if left at liberty, save in most extraordinary circumstances Applicant accused has played important role in commission of alleged offence Possibility that if applicant accused is released on regular bail then applicant-accused will not remain present before Court during trial in alleged offence and at this stage, even accused is in jail relatives or friends have tried to convince complainant and witnesses to settle the issues Thus, looking to affidavit filed by original complainant, it appears that complainant has stated on oath that matter is amicably settled between parties and if applicant is released on bail he has no objection Such a practice is unwarranted and it amounts to hampering/tempering with the evidence or witnesses, when such serious offence of murder is committed Therefore, affidavit on oath filed by original complainant cannot be considered Hence, no grant of regular bail.

13. In view of the above, it appears that the applicant accused has played important role in commission of alleged offence. There is possibility that if the applicant accused is released on regular bail then applicant-accused will not remain present before the Court during trial in the alleged offence and at this stage, even the accused is in the jail relatives or friends have tried to convince the complainant and witnesses to settle the issues. At this stage, it is important to note here that looking to the affidavit filed by the original complainant, it appears that the complainant has stated on oath that the matter is amicably settled between the parties and if the applicant is released on bail he has no objection. Such a practice is unwarranted and it amounts to hampering/ tempering with the evidence or witnesses, when such a serious offence of murder is committed. Hence, this Court is of the opinion that such an affidavit on oath filed by the original complainant cannot be considered, looking to the gravity and severity of the offence committed by the accused person.

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CR. NARANSINH AMARSINH BIHOLA Versus STATE OF GUJARAT judgment _3_23122022

14Jan, 2023

Hindu Marriage Act, 1955 – Cruelty – Refusal by Hindu wife to wear `sakha and sindoor’ will project her to be unmarried and signify her refusal to accept the marriage /High Court

[ GAUHATI HIGH COURT ]

Sri Bhaskar Das v/s Smti. Renu Das MAT APP 20/19 19/06/20

Hindu Marriage Act, 1955 – Cruelty – Refusal by Hindu wife to wear `sakha and sindoor’ will project her to be unmarried and signify her refusal to accept the marriage – Under such circumstances compelling the appellant husband to continue to be in matrimony with the respondent wife may be construed to be harassment upon appellant and his family members – Family Court erred in evaluating the evidence in proper perspective – Allegation of subjecting the respondent wife to cruelty was not sustained – Lodging of criminal cases on unsubstantiated allegations against husband and/or husband’s family members amounts to cruelty.

para 15. In view of forgoing discussion, we conclude that appellant has made a ground for grant of decree of dissolution of marriage on the ground as mentioned in Section 13(1)(i-a) of the Hindu Marriage Act, 1955.

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Bhaskar das vs renu das judgment High court display_pdf (23)

13Jan, 2023

Section 482 CRPC NI ACT Section 13 Quashing the criminal complaint Dishonour of cheque

[ DELHI HIGH COURT ]

JASWEEN SANDHU Vs STATE CRLMC 437/19 06/09/22 [ SUDHIR JJ ]

Section 482 CRPC NI ACT Section 13 Quashing the criminal complaint Dishonour of cheque Plea that complaint is perverse and does not disclose any lawful liability or debt towards the petitioner and petitioner is not the drawer of the cheque in question Since liability regarding dishonour of cheque in question cannot be fastened on the petitioner, so impugned order against the petitioner cannot be sustained, as such impugned order is set aside qua the petitioner only Petition allowed.

5. The petitioner challenged impugned order on the grounds that present complaint is perverse and does not disclose any lawful liability or debt towards the petitioner. The petitioner is not the drawer of the cheque in question. The trial court misdirected itself while passing the impugned order. The petitioner is not a joint account holder or vicariously liable with Amrit Sandhu Coster. The cheque in question was not issued by the petitioner but was issued by the sister of the petitioner namely Amrit Sandhu Coster. It was prayed that impugned order be set aside.

8. The counsel for the petitioner argued that the trial court committed a grave error while passing the impugned order as the petitioner is not the drawer and signatory of the cheque in question. The account from which cheque in question was issued does not belong to the petitioner. The petitioner has been wrongly impleaded as an accused. The petitioner cannot be made liable vicariously with Amrit Sandhu Coster. The petitioner was arrayed as accused No. 2 as per sections 141 and 142 of the Negotiable Instruments Act, 1881which are not applicable in present case. Amrit Sandhu Coster who is the petitioner in Crl.M.C. bearing no 556/2019 has admitted in notice given under section 251 of the Code that she was the signatory of the cheque and has handed over the cheque in question to the respondent no 2 in the year 2011 and issued stop payment instructions to the banker in the year 2011. The counsel for thepetitioner relied on Alka Khandu Avhad V Amar Syamprasad Mishra and another, AIR 2021 SC 1616 and Aprna A Shah V M/s Sheth Developers Pvt. Ltd. &another, (2013) 8SCC71.

15. The case of the respondent no 2 is that the petitioner and Amrit Sandhu Coster in discharge of their liability towards the respondent no 2 handed over cheque in question and promised that the said cheque would be obliged on presentation to discharge their legally enforceable debt.However, the petitioner is not drawer of the cheque in question which is issued and signed by the Amrit Sandhu Coster who is sister of the petitioner and is petitioner in petition bearing no 556/2019. The petitioner is not holder of account bearing no 90112010051035 in Syndicate Bank and is not operational in the name of the petitioner but is operational in name of Amrit Sandhu Coster. Amrit Sandhu Coster in notice under section 251 also admitted that she issued the cheque in question to the respondent no 2 in the year 2011 for my food court business vide proceedings dated 06.02.2019. The liability regarding dishonouring of cheque in question cannot be fastened on the petitioner.

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Jasween Sandhu vs state of NCT & Ors-Judgment-Delhi High Court

10Jan, 2023

SC interprets provisions w.r.t. computation of pre-deposit u/s 18 of SARFAESI for filing an appeal against DRT’s order

FEMA, BANKING & INSURANCE : SC interprets the provisions of section 18 of SARFAESI Act relating to computation of pre-deposit required from borrower for filing an appeal against DRT’s order

• In a case where the borrower also challenges the auction sale and does not accept the same and also challenges the steps taken under Section 13(2)/13(4) of the SARFAESI Act with respect to secured assets, the borrower has to deposit 50% of the amount claimed by the secured creditor along with interest and the amount of deposit made by auction purchaser will not be allowed as adjustment towards the pre-deposit. Such adjustment will be allowed in a case where the borrower accepts the auction sale of security and does not challenge it in appeal.
• In case of challenge to the sale of the secured assets, the amount mentioned in the sale certificate will have to be considered while determining the amount of pre-deposit under Section 18 of the SARFAESI Act. However, in a case where both are under challenge, namely, steps taken under Section 13(4) against the secured assets and also the auction sale of the secured assets, in that case, the “debt due” shall mean any liability (inclusive of interest) which is claimed as due from any person, whichever is higher.

PER COURT

• As per Section 18 of the SARFAESI Act, any person aggrieved, by any order made by the DRT under section 17, may prefer an appeal within thirty days to an appellate Tribunal (DRAT) from the date of receipt of the order of DRT. Second proviso to section 18 provides that no appeal shall be entertained unless the “borrower” has deposited with the Appellate Tribunal fifty percent of the amount of “debt due” from him, as claimed by the secured creditors or determined by the DRT, whichever is less and only and only then, an appeal under Section 18 of the SARFAESI Act is permissible against the order passed by the DRT under Section 17 of the SARFAESI Act. Under Section 17, the scope of enquiry is limited to the steps taken under Section 13(4) against the secured assets. Therefore, whatever amount is mentioned in the notice under Section 13(2) of the SARFAESI Act, in case steps taken under section 13(2)/13(4) against the secured assets are under challenge before the DRT will be the ‘debt due’ within the meaning of proviso to Section 18 of the SARFAESI Act. In case of challenge to the sale of the secured assets, the amount mentioned in the sale certificate will have to be considered while determining the amount of pre-deposit under Section 18 of the SARFAESI Act. However, in a case where both are under challenge, namely, steps taken under Section 13(4) against the secured assets and also the auction sale of the secured assets, in that case, the “debt due” shall mean any liability (inclusive of interest) which is claimed as due from any person, whichever is higher.
• As per the second proviso to Section 18 of the SARFAESI Act, it is the “borrower” who has preferred an appeal before the Appellate Tribunal and the “borrower” who shall have to deposit 50% of the amount of “debt due” from him. If the words used in the second proviso to Section 18 of the SARFAESI Act are “borrower has to deposit”, it is not appreciable how the amount deposited by the auction purchaser on purchase of secured assets can be adjusted and/or appropriated towards the amount of pre-deposit, to be deposited by the borrower. It is the “borrower” who has to deposit the 50% of the amount of “debt due” from him. At the same time, if the borrower wants to appropriate and/or adjust the amount realised from sale of the secured assets deposited by the auction purchaser, the borrower has to accept the auction sale. In other words, the borrower can take the benefit of the amount received by the creditor in an auction sale only if he unequivocally accepts the sale. In a case where the borrower also challenges the auction sale and does not accept the same and also challenges the steps taken under Section 13(2)/13(4) of the SARFAESI Act with respect to secured assets, the borrower has to deposit 50% of the amount claimed by the secured creditor along with interest as per section 2(g) of the Act 1993 and as per section 2(g), “debt” means any liability inclusive of interest which is claimed as due from any person.
• Words and Phrases: “borrower has to deposit” in second proviso to section 18of SARFAESI Act “debt due” in second proviso to section 18of SARFAESI Act

SUPREME COURT OF INDIA
Sidha Neelkanth Paper Industries (P.) Ltd.
v.
Prudent ARC Ltd.
M.R. SHAH AND B.V. NAGARATHNA, JJ.
CIVIL APPEAL NOS. 8969-70, 8972 TO 8974 OF 2022
JANUARY 5, 2023

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SC interprets provisions w.r.t. computation of pre-deposit us 18 of SARFAESI for filing an appeal against DRT’s order

10Jan, 2023

Sections 302 and 201 IPC Indian Evidence Act Section 106 Motive When the evidence on record unambiguously proves the guilt of the accused/Supreme Court/Leave Granted

SUPREME COURT OF INDIA

PREM vs STATE OF NCT DELHI CRL-A 1/23 02/01/23 [ DINESH JJ ]

_• *Sections 302 and 201 IPC Indian Evidence Act Section 106 Motive When the evidence on record unambiguously proves the guilt of the accused, the factor relating to motive cannot displace or weaken the conclusions naturally flowing from the evidence Held that when all the facts and circumstances are taken together, the present one is not a case where there had been any missing link in the chain of circumstances, leading only to the conclusion of the guilt of the appellant – Trial Court and the High Court concurrently recorded that the appellant is guilty of the offence of murder of the victim children, his sons, as also the offence of causing disappearance of evidence – No infirmity in the findings.

17. Taking all the facts and factors together, the chain of circumstances leading only to the hypothesis of the guilt of the appellant has been duly visualised and analysed by the Trial Court as also by the High Court. That being the position, learned counsel for the appellant has endeavoured to submit that an important link in the chain of circumstances, i.e., motive, has not been established and in that regard, reliance has particularly been placed on the statement of the wife of the appellant PW-9 Sunita Yadav, who did not support the prosecution allegations about strained relationship of the appellant and herself.
17.1. As noticed, motive, when proved, supplies additional link in the chain of circumstantial evidence but, absence thereof cannot, by itself, be a ground to reject the prosecution case; although absence of motive in a case based on circumstantial evidence is a factor that weighs in favour of the accused.
17.2. The question of motive in the present case, in our view, cannot be examined only with reference to the testimony of the wife of the appellant who has, even while admitting that she left the children in the company of the appellant and thereafter heard only about their demise, chosen not to support the accusations against the appellant. However, her testimony is contradicted by at least three prosecution witnesses with two of them, PW- 7 Mahender Kumar Yadav and PW-8 Rajender Yadav being her uncles, who maintained that there were strained relations of the appellant and his wife and that the appellant doubted the character of his wife as also the paternity of the children. Even PW-5 Bishan Singh, brother of the appellant, though attempted to depose against the prosecution case but indeed testified to the fact that there had been strains in the relationship of the appellant and his wife. The submission that strained relationship of appellant with his wife may not provide sufficient motive for killing the children cannot be accepted for the reason that the motive projected in the present case had been that the appellant doubted the paternity of the deceased children and suspected that they were not his sons.

17.3. We are clearly of the view that when the evidence on record unambiguously proves the guilt of the accused-appellant, the factor relating to motive cannot displace or weaken the conclusions naturally flowing from the evidence. Moreover, the present case cannot be said to be of want of motive altogether. Differently put, in our view, when all the facts and circumstances are taken together, the present one is not a case where there had been any missing link in the chain of circumstances, leading only to the conclusion of the guilt of the appellant.

18. As noticed, the Trial Court and the High Court have concurrently recorded the findings that the prosecution has been able to establish the chain of circumstances leading to the conclusion that the appellant is guilty of the offence of murder of the victim children, his sons, as also the offence of causing disappearance of evidence. There appears no infirmity in the findings so recorded.

10Jan, 2023

Section 401 CRPC Sections 498A, 304B and 306 read with 34 IPC Order of acquittal under challenged Dowry death, cruelty and abetment of suicide Dying declaration In dying declaration/Bombay High Court/Aurangabad Bench

Vasant vs State of Maharashtra CRA 267/04 05/08/22

[ BOMBAY HIGH COURT ]

_*• Section 401 CRPC Sections 498A, 304B and 306 read with 34 IPC Order of acquittal under challenged Dowry death, cruelty and abetment of suicide Dying declaration In dying declaration, deceased stated that the she committed suicide, as she was unable to bear pains in stomach and no one was responsible for her death Dying declaration was not recorded by observing all parameters Placing reliance on it on preponderance of probabilities in favour of the accused persons is not at all justified Deceased sustained 97% burns in her matrimonial house when all accused persons were present in the house Burn injuries were sustained within a period of three years from her marriage Prior to the said incident, there are allegations by the parents that she was subjected to illtreatment and demand of dowry Therefore, rejecting such contention of assumptions and conjectures as well as on flimsy ground, is not at all justified Learned Sessions Judge completely ignored settled propositions of law with regard to dowry death, appreciation of evidence in connection with demand wherein normally there is no independent witness and with regard to dying declaration which appears to be not genuine – Thus, acquitting all accused persons on these grounds is a miscarriage of justice – Revision allowed.

20.The matter in hand clearly goes to show that such dying declaration was not recorded by observing all parameters and therefore even placing reliance on it on preponderance of probabilities in favour of the accused persons is not at all justified.
21. Admittedly, deceased sustained 97% burns in her matrimonial house when all accused persons were present in the house. Such burn injuries were sustained within a period of three years from her marriage. Prior to the said incident, there are allegations by the parents that she was subjected to ill-treatment and demand of dowry. Therefore, rejecting such contention of assumptions and conjecturesas well as on flimsy ground, is not at all justified.
22. This is a fit case for exercising jurisdiction under Section 401 of Cr.P.C. as it is found that learned Sessions Judge completely ignored settled propositions of law with regard to dowry death, appreciation of evidence in connection with demand wherein normally there is no independent witness and thirdly, with regard to dying declaration which appears to be not genuine. Thus, acquitting all accused persons on these grounds is a miscarriage of justice. Deceased and her parents suffered at the behest of said judgment and therefore, interference is necessary.

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Vasant vs state of Maharashtra & ors judgment of Mumbai High Court

8Jan, 2023

Regular Bail-charge- sheet has been filed and charges are yet to be framed. The petitioner has been in custody since 10th February, 2022 and previous two applications for bail before the Sessions Court have been dismissed

DELHI HIGH COURT

BAIL APPLN. 2671/2022
RAVI @ ANIL CHAUDHARY
versus
STATE OF NCT OF DELHI (PS Laxmi Nagar)

under Sections 120B/302/149/34 IPC and Sections 25/27 of the Arms Act

charge- sheet has been filed and charges are yet to be framed. The petitioner has been in custody since 10th February, 2022 and previous two applications for bail before the Sessions Court have been dismissed.

Having carefully perused the record and assessed the contentions by the parties, it is evident that none of the witnesses who would be presented by the prosecution including the eyewitness Harsh, Aman and Md. Inam, friends of the deceased who had reached the spot or the father of the deceased who had also reached the spot, had mentioned the name of the petitioner as somebody who was at the spot. Aside from the eyewitness Harsh, the statements of Aman, Md. Inam and the father all advert to what the injured Mayur Chouhan had stated to them while either on the spot or when he was being taken to the hospital. The only limited reference which points to the petitioner is the statement of Md. Inam which is a subsequent statement recorded 6 days after his initial statement where he adds to what had been apparently told to him by the injured Mayur Chouhan. This addition was that as Md. Inam had heard Mayur Chouhan stating while he was in an injured condition and being taken to the hospital that Mayur Chouhan had heard the assailants stating that they were going to go to the petitioner’s office thereafter. Prima facie this would indicate that the petitioner was definitely not present at the spot or in vicinity and that the assailants (or some of them) had an intention of going to the petitioner’s office thereafter. Whether this plan of going to the petitioner’s office thereafter fructified or was part of a pre hatched conspiracy or plan would be finally for the prosecution to prove during trial. However, at this stage there was nothing on record to suggest that there did exist this conspiracy and there was a plan in which the petitioner had conspired to kill the deceased. The only other aspect which the prosecution seems to be relying upon is the recovery of the five phones from the bush behind the bus stop at the instance of the petitioner which belong to the assailants. While the admissibility of this recovery would have to be proved during trial, mere possession of the phones of the assailants would at best invite an offence punishable under Section 201 IPC (causing evidence of the commission of offence to disappear with an intent of screening the offender). This offence under Section 201 IPC is bailable in all its various formulations as provided in the Section. The other possibility could be under Section 212 IPC which was to harbour the offender which was also bailable as per the provision. Considering the fact that the petitioner, as per the statement of witnesses, was not present on the spot of incident nor in the proximity but was merely implicated on the basis of hearsay by a witness that the assailants could have gone to his office post the event, and also that the recovery from the petitioner would still have to be proved in trial, and even if so proved would implicate him for offences which are bailable in nature, the considered opinion of the Court is that since the trial would take substantial amount of time, there would be no purpose served keeping the petitioner in custody as an undertrial. The investigation stands completed and the charge-sheet has already been filed. The petitioner is not the main accused for firing at the deceased nor was he present at the spot and hence the offence under Section 302 IPC can only rope the petitioner within its ambit once either the element of conspiracy under Section 120B IPC or common intention under Section 34 IPC is proved against him. The previous involvements of the petitioner have either ended up in discharge or in acquittal or compounding or bail and, therefore, it cannot be said that the petitioner has been held guilty for any previous involvement. The mere suspicion or apprehension of the prosecution that the petitioner may end up tampering with evidence or harbouring the co-accused is not sufficient or substantiated at this stage to justify the continued incarceration of the petitioner. The Hon’ble Supreme Court has repeatedly held that it is the duty of Constitutional Courts to ensure there is no arbitrary deprivation of personal liberty and that bail is the rule and jail is an exception. Reference may be made to the decisions of the Hon’ble Supreme Court in inter alia Prasanta Kumar Sarkar v. Ashis Chaterjee, (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 and Prabhakar Tewari v. State of Uttar Pradesh, (2020) 11 SCC 648. The petitioner’s presence at the scene of crime being inconclusive at this juncture can only be confirmed during trial and cannot justify prolonged incarceration of the petitioner at this point of time.

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Ravi @ Anil Chaudhary vs state of Delhi:Bail:Judgment