While granting bail to an accused in a case of kidnapping for ransom after a custody of almost two years and nine months, the Delhi High Court in a most learned, laudable, landmark and latest judgment titled Shah Alam vs State Govt of NCT of Delhi in Bail Appln. 1033/2023 and in N.C.No.2023:DHC:4120 and cited in 2023 LiveLaw (Del) 523 that was reserved on June 1, 2023 and then finally pronounced on June 7, 2023 has said that at the stage of the trial, imprisonment cannot be prolonged only for the purpose of teaching the accused a lesson. The Single Judge Bench of Hon’ble Mr Justice Vikas Mahajan said that it is trite that the seriousness of an offence is not the only criteria for denial of bail. The Bench also stated in no uncertain terms that, “A person who has not been convicted should only be kept in custody, if there is a possibility that he or she might abscond or tamper with evidence or threaten the witness. Merely because the offence is of a serious nature, cannot be the ground to curtail the personal liberty of an under trial for an indefinite period.” Very rightly so!
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench of Hon’ble Mr Justice Vikas Mahajan of Delhi High Court sets the ball in motion by first and foremost putting forth in para 1 that, “This is a bail application under Section 439 CrPC seeking regular bail in FIR No.394/2020 under Sections 364A/365/342/323/506/102B/34 IPC registered at PS New Ashok Nagar. The case of the prosecution is that the mother of the victim on 03.09.2020 made a complaint to the police at 10:02 p.m. that the victim, her daughter, aged about 24 years went to HDFC Bank, Sector-02, Noida, U.P at about 01:30 p.m. with her ATM, passbook and cheque book and she has not returned home and despite searching for her, the victim could not be found. She suspected that some unknown person has kidnapped her daughter by luring her. On the basis of the said complaint, FIR was registered under Section 365 IPC.”
To put things in perspective, the Bench envisages in para 2 that, “Subsequently, on 03.09.2020 itself, the father of the victim went to the Police Station and stated that his daughter has been kidnapped for ransom and the kidnapper has demanded Rs. 40 lacs and threatened to kill his daughter, in case the demand is not fulfilled.”
As we see, the Bench then lays bare in para 3 that, “The father of the victim also produced few video recordings as well as Whatsapp messages regarding the demand for ransom. On the basis of the statement of the father, Sections 364A/506/342/323/120B/34 IPC were also added in the case.”
As things stand, the Bench discloses in para 4 that, “Search was made for the victim with the help of location and CDR of victim’s mobile number and the victim was recovered on 04.09.2020 from the custody of accused persons namely, Simpal Srivastav and her boyfriend Shah Alam (petitioner herein) from Village Chhalera, Sector-44, Noida (U.P). The said accused persons were arrested on 04.09.2020.”
Simply put, the Bench then specifies in para 5 that, “The victim and the accused persons were medically examined at Lal Bahadur Shastri Hospital. The disclosure statement of the accused persons as well as the statement of the victim, were also recorded. recoveries were effected at the instance of the accused persons from Village Chhalera, Sector-44, Noida, U.P as well as from B-579, Gali No.5 Sangam Vihar, Delhi. The mobile phone of father and younger sister of the victim were also seized.”
As it turned out, the Bench then reveals in para 6 that, “The statement of victim under Section 164 CrPC was recorded and subsequently Sections 506/342/323 IPC were also added. Voice samples of the petitioner was sent to FSL, Rohini. After completion of necessary investigation charge sheet was filed against the accused persons under Sections 364A/365/342/323/506/120B/34 IPC.”
Most remarkably, the Bench underscores in para 15 holding that, “It is trite that the seriousness of an offence is not the only criteria for denial of bail. A person who has not been convicted should only be kept in custody, if there is a possibility that he or she might abscond or tamper with evidence or threaten the witness. Merely because the offence is of a serious nature, cannot be the ground to curtail the personal liberty of an under trial for an indefinite period.”
While citing a recent, remarkable and relevant case law, the Bench enunciates in para 17 that, “At this stage, it may also be apt to refer to the decision of the Hon’ble Supreme Court in Sanjay Chandra vs. CBI, (2012) 1 SCC 40, wherein the limited circumstances under which the liberty of an under trial could be circumscribed, were articulated in the following words:-
“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 can be required to ensure that an accused person will stand his trial when called upon. The Courts 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. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. In India, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.””
It would be germane to note that the Bench points out in para 18 that, “In the present case, the charge sheet has already been filed and no recovery is required to be made from the petitioner who is in custody since 04.09.2020, which is almost two years and nine months.”
Most significantly, the Bench minces just no words to mandate in para 19 propounding that, “The examination-in-chief of the victim has already been recorded. There are 23 witnesses cited by the prosecution and it will take long time to conclude the trial. At the stage of the trial, imprisonment cannot be prolonged only for the purpose of teaching the accused a lesson. The case of the prosecution and the defense of the accused persons is yet to be tested at trial.”
Do note, the Bench notes in para 20 that, “It is not the case of the prosecution that any injury was caused by the accused persons to the victim. Even the MLC of the victim records that “no fresh external injuries seen through naked eye examination”.”
Be it also noted, the Bench notes in para 21 that, “It is also not the case of the prosecution that the petitioner is a habitual offender or hardened criminal, who in the event of being enlarged on bail, may flee from justice or again indulge in such activities.”
It deserves mentioning that the Bench stipulates in para 22 that, “At this stage, without going into the merits of the case, this court is of the opinion that regard being had to the above discussion, the petitioner has made out a case for the grant of bail. Accordingly, the petition is allowed and the petitioner is admitted to bail on his furnishing a personal bond in the sum of Rs. 20,000/- with one surety bond of the like amount subject to the satisfaction of the learned Trial Court / CMM / Duty Magistrate, further subject to the following conditions:-
a) As the Petitioner/applicant is a permanent resident of Azamgarh, U.P. he will furnish his permanent address to the IO concerned and shall leave the Delhi only after prior intimation to the IO.
b) Petitioner/applicant shall appear before the Court as and when the matter is taken up for hearing.
c) Petitioner/applicant shall provide all mobile numbers to the IO concerned which shall be kept in working condition at all times and shall not switch off or change the mobile number without prior intimation to the Investigating Officer concerned. The mobile location be kept on at all times.
d) Petitioner/applicant shall not indulge in any criminal activity and shall not communicate with or come in contact with the, victim or any member of the victim’s family.”
Finally, the Bench concludes by holding in para 23 that, “The petition stands disposed of.”
In conclusion, we thus see that the Delhi High Court has made it indubitably clear that imprisonment at the trial stage cannot be prolonged only for the purpose of teaching the accused a lesson. So it was but absolutely right in the fitness of things that the Delhi High Court very rightly granted bail to the accused in the kidnapping case along with the various conditions as stated herein aforesaid. There can be just no denying it!
Sanjeev Sirohi