Dismissed

Mukesh Sharma v. State of Hp.

Himachal Pradesh HC10 Jul 2024CRMPM/1296/2024

Case brief

AI extract

What is this about?

This was a criminal bail petition filed by Mukesh Sharma regarding his arrest under Sections 21 and 29 of the NDPS Act for possession of heroin. The petitioner, who had prior NDPS antecedents for possession of heroin in a vehicle, argued for bail based on innocence, non-principal role, and parity with a released co-accused. The High Court, observing the petitioner's criminal history and the nature of the offence (narcotics), rejected the claim of parity and the argument that rigours of Section 37 did not apply. The Court held that criminal antecedents are a critical factor and dismissal of bail in such cases is in society's interest. The petition was dismissed, but with a caveat that the order did not decide merits of the case.

What did the court decide?

The petition for regular bail is dismissed. The petitioner is not released on bail.

Mukesh Sharma Vs State of Hp. — Narcotics (NDPS) | Himachal Pradesh HC (2024)

¶1

Neutral Citation No. ( 2024:HHC:4827 )

¶2

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

¶3

Cr. MP (M) No. 1296 of 2024 Reserved on: 05.07.2024 Date of Decision: 10.07.2024.

¶4

Mukesh Sharma ...Petitioner

¶5

Versus

¶6

State of Himachal Pradesh ...Respondent

¶7

Coram

¶8

Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No.

¶9

For the Petitioner	:	M/s Rohit Sharma, Anuj Gupta and Manish Kansra, Advocates.
For the Respondent	:	Mr Lokender Kutlehria, Additional Advocate General, with HC Manoj Kumar, No. 1691, Police Station
		West, District Shimla, H.P.

¶10

Rakesh Kainthla, Judge

¶11

The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested in FIR No. 75 of 2024, dated 4.5.2024, registered at Police Station, West, Shimla for the commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and

¶12

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

¶13

¶14

Psychotropic Substances Act, 1985 (in short ‘NDPS Act’). The petitioner belongs to a respectable family. He has deep roots in the society. He was a brilliant student and qualified for the post of Junior Office Assistant. The petitioner has nothing to do with the commission of the offence. He has been in judicial custody since 4.5.2024. The custodial interrogation of the petitioner is not required and the investigation of the case is complete. No useful purpose would be served by detaining the petitioner in judicial custody. The petitioner was earlier involved in the commission of an offence punishable under the ND&PS Act for the possession of a small quantity. The trial is continuing for the commission of the aforesaid offence before the learned Trial Court at Shimla. The petitioner had not misused the liberty granted to him. The petitioner will abide by all the terms and conditions, which the Court may impose. The co-accused have already been released on bail and the petitioner is entitled to the bail on the principle of parity. Hence, it was prayed that the present petition be allowed and the petitioner be released on bail.

¶15

The petition is opposed by filing a status report asserting that the police party was on patrolling duty on

¶16

¶17

4.5.2024 when a secret information was received that Mukesh Sharma (the present petitioner) and Udhav Sood were dealing with heroin and in case of search, huge quantity of heroin could be recovered. The police completed the formalities, associated two independent witnesses and went to Divya Niwas. The petitioner and Udhav Sood were found on the spot. The police apprised them of the information received by them and searched the bedroom. The police found a jacket kept on the double bed which was checked. One burnt currency note of ₹10/- and one polythene pouch containing 9.48 grams of heroin was recovered from the jacket. The police seized the heroin and arrested the petitioner and Udhav Sood. The investigation was conducted. Heroin was sent to FSL, Junga and as per the report of analysis, the exhibit was stated to be a sample of diacetylmorphine (heroin).

¶18

A response was filed to the status report asserting that an earlier case was registered against the petitioner and other persons for the recovery of 2.06 grams of heroin from the dashboard of the vehicle bearing registration No. CH-01-AX8700. The petitioner cannot be assumed to be in its conscious possession. The petitioner appeared in various examinations

¶19

¶20

and qualified the examination for the post of Junior Office Assistant. He was working as a Desk Manager with Divya Himachal and is not a drug peddler. Therefore, it was prayed that the present petition be allowed and the petitioner be released on bail.

¶21

I have heard M/s Rohit Sharma, Anuj Gupta and Manish Kansra, learned Counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State.

¶22

Mr. Rohit Sharma, learned Counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. He is appearing in various tests being conducted by various institutions to secure a job. He is not a drug peddler. He was found in possession of a small quantity of heroin in a previous case. He could not be said to be in conscious possession of the same. He had not misused the concession of bail extended to him in the previous case. He would abide by all the terms and conditions, which may be imposed by the Court. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.

¶23

¶24

Mr. Lokender Kutlehria, learned Additional Advocate

¶25

General for the respondent-State submitted that the petitioner was found involved in the commission of similar offences and the chance of his repeating the same offence cannot be ruled out. The offence involving narcotics is affecting the young generation adversely and the same should not be viewed lightly. Hence, he prayed that the present petition be dismissed.

¶26

I have given considerable thought to the submissions at the bar and have gone through the records carefully.

¶27

The parameters for granting bail were considered by the Hon’ble Supreme Court in Bhagwan Singh v. Dilip Kumar @ Deepu @ Depak , 2023 SCC OnLine SC 1059, wherein it was observed as under:-

¶28

“ 12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;

¶29

(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;

¶30

¶31

(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

¶32

(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.

¶33

(d) Frivolity of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.

¶34

13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts has been explained in the following words:

¶35

“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

¶36

¶37

( a ) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

¶38

( b ) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

¶39

( c ) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688 ] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124 ].)”

¶40

A similar view was taken in State of Haryana vs Dharamraj 2023 SCC Online 1085, wherein it was observed:

¶41

7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 . In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 , the relevant principles were restated thus:

¶42

‘9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

¶43

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

¶44

(ii) nature and gravity of the accusation;

¶45

¶46

(iii) severity of the punishment in the event of conviction;

¶47

(iv) danger of the accused absconding or fleeing, if released on bail;

¶48

(v) character, behaviour, means, position and standing of the accused;

¶49

(vi) likelihood of the offence being repeated;

¶50

(vii) reasonable apprehension of the witnesses being influenced; and

¶51

(viii) danger, of course, of justice being thwarted by grant of bail.’

¶52

It was submitted that the petitioner was stated to be

¶53

present in the vehicle from which a small quantity of heroin was recovered and mere presence in the vehicle does not constitute conscious possession; hence, the involvement of the petitioner in the earlier case is not established. This submission is not acceptable. As per the own showing of the petitioner, he was present in a car from which a small quantity of the heroin was recovered. A similar situation occurred in Madan Lal versus State of H.P. (2003) 7 SCC 465: 2003 SCC (Cri) 1664: 2003 SCC OnLineSC 874 , wherein the contraband was recovered from the vehicle and

¶54

it was held that all the occupants of the vehicle would be in conscious possession of the contraband. It was observed:

¶55

“19. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record

¶56

¶57

are that all the accused persons were travelling in a vehicle and as noted by the trial court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.

¶58

Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to offences for possession of such articles. It is submitted that in order to make the possession illicit, there must be conscious possession.

¶59

It is highlighted that unless the possession was coupled with the requisite mental element i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.

¶60

The expression “possession” is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja [(1979) 4 SCC 274: 1979 SCC (Cri) 1038: AIR 1980 SC 52] to work out a completely logical and precise definition of “possession” uniformly applicable to all situations in the context of all statutes.

¶61

The word “conscious” means awareness about a particular fact. It is a state of mind which is deliberate or intended.

¶62

As noted in Gunwantlal v. State of M.P. [(1972) 2 SCC 194: 1972 SCC (Cri) 678: AIR 1972 SC 1756] possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control.

¶63

The word “possession” means the legal right to possession (see Heath v. Drown [(1972) 2 All ER 561: 1973 AC 498 : (1972) 2 WLR 1306 (HL)] ). In an interesting case it was observed that where a person keeps his firearm in his

¶64

¶65

mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness [(1976) 1 All ER 844: 1976 QB 966 : (1976) 2 WLR 361 (QBD)] .)

¶66

Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.

¶67

In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accusedappellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act.”

¶68

It was laid down by the Hon’ble Supreme Court in

¶69

Union of India v. Mohd. Nawaz Khan , (2021) 10 SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC OnLine SC 1237 that a person is in possession if he is in a position to exercise control over the article. It was observed on page 111:

¶70

25. We shall deal with each of these circumstances in turn. The respondent has been accused of an offence under Section 8 of the NDPS Act, which is punishable under Sections 21, 27-A, 29, 60(3) of the said Act. Section 8 of the Act prohibits a person from possessing any narcotic drug or psychotropic substance. The concept of possession recurs in Sections 20 to 22, which provide for punishment for offences under the Act. In Madan Lal v. State of H.P. [Madan Lal v. State of H.P., (2003) 7 SCC

¶71

¶72

465: 2003 SCC (Cri) 1664 ] this Court held that: (SCC p. 472, paras 19-23 & 26)

¶73

“ 19 . Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record are that all the accused persons were travelling in a vehicle and as noted by the trial court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.

¶74

20 . Section 20( b ) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to offences for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession.

¶75

21 . It is highlighted that unless the possession was coupled with the requisite mental element i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.

¶76

22 . The expression “possession” is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja [Supt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja, (1979) 4 SCC 274: 1979 SCC (Cri) 1038 ] to work out a completely logical and precise definition of “possession” uniform[ly] applicable to all situations in the context of all statutes.

¶77

23 . The word “conscious” means awareness about a particular fact. It is a state of mind which is deliberate or intended.

¶78

¶79

***

¶80

26 . Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.”

¶81

26. What amounts to “conscious possession” was also considered in Dharampal Singh v. State of Punjab [Dharampal Singh v. State of Punjab, (2010) 9 SCC 608 : (2010) 3 SCC (Cri) 1431 ], where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in the case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. In Mohan Lal v. State of Rajasthan [Mohan Lal v. State of Rajasthan, (2015) 6 SCC 222: (2015) 3 SCC (Cri) 881] , this Court also observed that the term “possession” could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on this knowledge.

¶82

Therefore, the petitioner cannot claim that he was

¶83

not in possession when he was present in the vehicle and was able to exercise control over the Heroin.

¶84

The petitioner was found in possession of heroin in the earlier case and he has again been found in possession of the

¶85

¶86

heroin. This shows that the possibility of the repetition of the crime cannot be ruled out in case of release on bail.

¶87

It was submitted that the petitioner was found in possession of an intermediate quantity of the heroin. The rigours of Section 37 of the ND&PS Act do not apply to the present case and the petitioner is entitled to bail. This submission cannot be accepted. It was laid down by this Court in Khushi Ram Gupta versus State of Himachal Pradesh Criminal Misc. Petition (MAIN) No. 1303 of 2022 decided on 12-07-2022 that the menace of drug addiction has seriously eroded into the fabric of society. The release of an accused under NDPS Act cases on bail will send a negative signal to the society. It will be detrimental to the interest of society. The bail cannot be granted on the ground that there was no past criminal history.

¶88

Similarly, it was held in Bunty Yadav V/s State of Himachal Pradesh Criminal Miscellaneous Petition (MAIN) No.1868 of 2022 decided on 31-08-2022 that even where the rigours of Section 37 of ND &PS Act do not apply, the bail cannot be claimed as a matter of right. Each case has to be adjudged on its own facts. Karnataka High Court took a similar view in Sri. Thaha

¶89

¶90

Ummer vs Union of India Criminal Petition No.9450/2022 decided on 09-11-2022 and held that merely because Section 37 of the NDPS Act does not apply, a person involved in the commission of an offence punishable under the NDPS Act cannot be released on bail. There is a presumption under Section 35 of the NDPS Act regarding the culpable mental state and the burden is upon the accused to rebut the presumption. Therefore, the petitioner cannot claim to be released on bail because he was found in possession of an intermediate quantity of narcotics.

¶91

A case was registered against the petitioner which is pending trial. This shows that the petitioner has criminal antecedents. It was held in Dataram Singh vs. State of U.P. (2018) 3 SCC 22 that while granting bail, a Judge must 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. In Neeru Yadav vs. State of U.P. (2015) 16 SCC 422 many FIRs were registered against the accused. The bail was granted to him by the High Court. Hon’ble Supreme Court held that keeping in view the criminal history of the accused, he was not entitled to bail. It was observed:

¶92

¶93

“9. On a perusal of the aforesaid list, it is quite vivid that respondent no.2 is a history sheeter and is involved in heinous offences. Having stated the facts and noting the nature of involvement of the accused in the crimes in question, there can be no scintilla of the doubt to name him a “history-sheeter”

¶94

This being the position of law, it is clear as the cloudless sky that the High Court has totally ignored the criminal antecedents of the accused. What has weighed with the High Court is the doctrine of parity. A historysheeter involved in the nature of crimes which we have reproduced hereinabove are not minor offences so that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of the imagination, can be regarded as jejune . Such cases do create thunder and lightning having the effect potentiality of torrential rain in an analytical mind. The law expects the judiciary to be alert while admitting these kinds of accused persons to be at large and, therefore, the emphasis is on the exercise of discretion judiciously and not in a whimsical manner.

¶95

The law regarding the relevance of the criminal

¶96

history of the accused while considering the bail application was considered by this Court exhaustively in Prem Singh vs. State of H.P. 2020 (1) Shim. L.C. 476 , wherein it was observed:

¶97

“9. In Ravinder Singh @ Ravi Pavar v. State of Gujarat, (2013) 12 SCC 446 , SupremeCourt observed,

¶98

"24. In para 5 of the rejoinder affidavit, the State has highlighted that A-2 is a "habitual offender" and there are 22 cases pending against him in various police stations. It is also mentioned in the counter affidavit that during the period while he was granted temporary bail by the High Court, he indulged in an offence of

¶99

¶100

theft and a case was registered against him vide I-C.R. No. 92 of 2011 under Section 379 of IPC by the Vasad Police Station for which he was arrested on 10.08.2011 and later enlarged on bail. It is also brought to our notice that respondent A-2, while on regular bail, was arrested on 13.09.2012 in Vadodara city in connection with Javaharnagar Police Station crime registered vide I-C.R. No. 94 of 2012 under Sections 407, 408 and 120B and later on he was released on bail.

¶101

Taking note of all these aspects, his antecedents, the gravity and nature of the offence, loss of human lives, the impact on the social fabric of the society, and his continuous involvement in criminal activities while on bail, we are satisfied that respondent (A-2) does not deserve to continue to remain on bail."

¶102

In State of Maharashtra v. Pappu @ Suresh Budharmal Kalani, (2014) 11 SCC 244 , the Supreme Court holds,

¶103

"14. It is not in dispute that in spite of being acquitted in some of the cases, still there are 15 cases in which a trial is pending against the respondent, out of which two cases are under Sections 302 read with 120B, IPC. In the present case also, initially along with charges under Sections 302/120B, IPC offences punishable under TADA were also charged against the respondent but later on, the TADA charges were withdrawn. Though we are not inclined to go into the matter in detail at present to interfere in the order passed by the High Court, taking into consideration the peculiar facts and circumstances of the case, we are inclined to interfere and cancel the bail granted by the High Court."

¶104

¶105

In Chandrakeshwar Prasad @ Chandu Babu v. State of Bihar, (2016) 9 SCC 443 , the Supreme Court holds,

¶106

"13. On a careful perusal of the records of the case and considering all the aspects of the matter in question and having regard to the proved charges in the concerned cases, and the charges pending adjudication against the respondent-accused and further balancing the considerations of individual liberty and societal interest as well as the prescriptions and the perception of law regarding bail, it appears to us that the High Court has erred in granting bail to the respondent accused without taking into consideration the overall facts otherwise having a bearing on the exercise of its discretion on the issue.

¶107

Judged on the entire conspectus of the attendant facts and circumstances and considering the stage of the present case before the trial court where the charge sheet has already been submitted, together with pending proceedings against the respondent-accused as on date, and his recorded antecedents in the various decisions of this Court, we are thus unable to sustain the impugned order of the High Court granting bail to him."

¶108

In Neeru Yadav v. State of U.P., (2016) 15 SCC 422 , the Supreme Court, rejected the bail granted by the High Court, by holding as follows,

¶109

"9. On a perusal of the aforesaid list, it is quite vivid that respondent No. 2 is a history-sheeter and is involved in heinous offences. Having stated the facts and noting the nature of involvement of the accused in the crimes in question, there can be no scintilla of doubt to name him a "history-sheeter". The question, therefore, arises whether in these

¶110

¶111

circumstances, should the High Court have enlarged him on bail on the foundation of parity.

¶112

In Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 , it has been clearly laid down that the grant of bail though involves the exercise of the discretionary power of the Court, such exercise of discretion has to be made in a judicious manner and not as a matter of course. The heinous nature of crimes warrants more caution as there is a greater chance of rejection of bail though, however, dependent on the factual matrix of the matter. In the said case, reference was made to Prahlad Singh Bhati v. NCT of Delhi, (2001) 4 SCC 280 , and thereafter the court proceeded to state the following principles:-

¶113

"(a) While granting bail the court has to keep in mind not only the nature of the accusations but the severity of the punishment if the accusation entails a conviction and the nature of evidence in support of the accusations.

¶114

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.

¶115

(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.

¶116

(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be

¶117

¶118

considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."

¶119

It is a well-settled principle of law that while dealing with an application for a grant of bail, it is the duty of the Court to take into consideration certain factors and they basically are, (i) the nature of the accusation and the severity of punishment in cases of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witnesses for the apprehension of threat to the complainant, and (iii) Prima facie satisfaction of the court in support of the charge. [See Chaman Lal v. State of U.P., (2004) 7 SCC 525 ]

¶120

In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 , while dealing with the court's role to interfere with the power of the High Court to grant bail to the accused, the Court observed that it is to be seen that the High Court has exercised this discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a catena of judgments on that point. The Court proceeded to enumerate the factors: -

¶121

"9. ... among other circumstances, the factors [which are] to be borne in mind while considering an application for bail are:

¶122

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

¶123

(ii) nature and gravity of the accusation;

¶124

¶125

(iii) severity of the punishment in the event of conviction;

¶126

(iv) the danger of the accused absconding or fleeing, if released on bail;

¶127

(v) character, behaviour, means, position and standing of the accused;

¶128

(vi) likelihood of the offence being repeated;

¶129

(vii) reasonable apprehension of the witnesses being influenced; and

¶130

(viii) danger, of course, of justice being thwarted by grant of bail."

¶131

We will be failing in our duty if we do not take note of the concept of liberty and its curtailment by law. It is an established fact that a crime though committed against an individual, in all cases does not retain an individual character. It, on occasion and in certain offences, accentuates and causes harm to society. The victim may be an individual, but in the ultimate eventuate, it is the society, which is the victim. A crime, as is understood, creates a dent in the law and order situation. In a civilised society, a crime disturbs orderliness. It affects the peaceful life of society. An individual can enjoy his liberty which is definitely of paramount value but he cannot be a law unto himself. He cannot cause harm to others. He cannot be a nuisance to the collective. He cannot be a terror to society; and that is why Edmund Burke, the great English thinker, almost two centuries and a decade back eloquently spoke thus: -

¶132

"Men are qualified for civil liberty, in exact proportion to their disposition to put moral

¶133

¶134

chains upon their own appetites; in proportion as their love to justice is above their rapacity; in proportion as their soundness and sobriety of understanding is above their vanity and presumption; in proportion, as they are more disposed to listen to the counsel of the wise and good, in preference to the flattery of knaves. Society cannot exist unless a controlling power upon will and appetite be placed somewhere and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things that men of intemperate minds cannot be free. Their passions forge their fetters [ Alfred Howard, The Beauties of Burke (T. Davison, London) 109 ]."

¶135

In Krishna @ Kiran Versus State of H.P. Cr. MP (Main)

¶136

no. 2212 of 2019, decided on 06.01.2020 , this Court found that the petitioner was earlier involved in the possession of Ganja and was not held entitled to bail. Similarly, in the State of Bihar Versus Rajballav Prasad (2017) 2 SCC 178, the Hon'ble Supreme Court held that when the petitioner was involved in the commission of similar offences, it was a relevant consideration. The fact that the criminal antecedents of the accused are relevant was also laid down in Arnav Manoranjan Goswami Versus State of Maharashtra AIR 2021 SC 1 wherein it was held:

¶137

“57. While considering an application for the grant of bail under Article 226 in a suitable case, the High Court must

¶138

¶139

consider the settled factors, which emerge from the precedents of this Court. These factors can be summarized as follows:

¶140

(i) The nature of the alleged offence, the nature of the accusation and the severity of the punishment in the case of a conviction;

¶141

(ii) Whether there exists a reasonable apprehension of the accused tampering with the witnesses or being a threat to the complainant or the witnesses;

¶142

(iii) The possibility of securing the presence of the accused at the trial or the likelihood of the accused fleeing from justice;

¶143

(iv) The antecedents of and circumstances which are peculiar to the accused;

¶144

(v) Whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR; and

¶145

(vi) The significant interests of the public or the State and other similar considerations.

¶146

These principles have evolved over a period of time and emanate from the following (among other) decisions: Prahlad Singh Bhati vs. NCT, Delhi, (2001) 4 SCC 280; Ram Govind Upadhyay vs. Sudarshan Singh, (2002) 3 SCC 598; State of UP vs. Amarmani Tripathi, (2005) 8 SCC 21; Prasanta Kumar Sarkar vs. Ashis Chatterjee, (2010) 14 SCC 496; Sanjay Chandra vs. CBI, (2012) 1 SCC 40; and P. Chidambaram vs. Central Bureau of Investigation[Criminal Appeal No. 1605 of 2019 decided on 22 October 2019 ].

¶147

It was held in State of Maharashtra v. Sitaram Popat

¶148

Vetal, (2004) 7 SCC 521: 2004 SCC (Cri) 1971: 2004 SCC OnLine SC

¶149

932 that antecedents of the petitioner cannot be ignored while

¶150

considering his bail application. It was held at page 524:

¶151

¶152

“9. The High Court has lightly brushed aside the factum of recovery of the weapons and identification at the test identification parade. Its conclusion that political rivalry has a double-edged effect was based on surmises without any material before it to show that a false case had been foisted because of political rivalry. Further, the antecedents of the present respondents though noticed were also lightly brushed aside on the ground that they were not of the recent past. Even though criminal antecedents are always not determinative of the question whether bail is to be granted, yet their relevance cannot be totally ignored. It was submitted that the accused Sitaram Vetal is not appearing in court on the date fixed. If that is really so, it is open to the trial court to take such action as is available to be taken in law.”

¶153

A similar view was taken in Ramesh Bhavan Rathod v.

¶154

Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230: (2021) 2 SCC

¶155

(Cri) 722: 2021 SCC OnLine SC 335 , wherein it was held at page

¶156

250:-

¶157

“36. There is another aspect of this batch of cases which it is necessary to note. In the order of the High Court dated 22-10-2020 [ SiddhrajsinhBhagubha Vaghela v. State of Gujarat, 2020 SCC OnLine Guj 2985 ] granting bail to Sidhdhrajsinh (A-13), there was a reference to the submission of the Public Prosecutor to the criminal antecedents of A-13 bearing on previous FIRs registered against him in 2017 and 2019. This aspect bearing on the criminal antecedents of A-13 has not been considered in the reasons which have been adduced by the Single Judge. In Ash Mohammad v. Shiv Raj Singh [Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC 446: (2012) 3 SCC (Cri) 1172] , this Court has held that criminal antecedents of the accused must be weighed for the purpose of granting bail. That apart, it is important to note that the ground on which A-13 was granted bail is that in the subsequent

¶158

¶159

statement dated 3-6-2020, the overt act which was attributed in the FIR was found to be missing. Having said this, the learned Judge observed that the order shall not be treated as a precedent to claim bail on the basis of parity in any other case.

¶160

xxx

¶161

However, having said that, in the case at hand, it is manifestly incorrect on the part of the High Court to have granted bail to Respondent 2/accused without taking into consideration the relevant facts and circumstances and appropriate evidence which proved that Respondent 2/accused has been charged with a serious offence.

¶162

Grant of bail to Respondent 2/accused only on the basis of parity shows that the impugned order passed by the High Court suffers from the vice of non-application of mind rendering it unsustainable. The High Court has not taken into consideration the criminal history of Respondent 2/accused, the nature of the crime, material evidence available, involvement of Respondent 2/accused in the said crime and recovery of weapon from his possession.”

¶163

Similar is the judgment passed in Sunil Kumar v. State

¶164

of Bihar, (2022) 3 SCC 245: (2022) 1 SCC (Cri) 603: 2022 SCC OnLine

¶165

SC 88 , wherein it was observed at page 252: -

¶166

“16. Even the High Court has also not at all considered the criminal antecedents of Respondent 2-accused. Though it was pointed out on behalf of the informant that the accused is involved in two cases and that the appellant (informant) was restrained from proceeding further in earlier cases pending against the accused, the High Court has simply brushed aside the same and has not considered the same at all. The High Court has noted the submission on behalf of the accused that one other accused — Shashi Bhushan Bhagat has been released on

¶167

¶168

bail. However, the High Court has not at all considered whether the case of Shashi Bhushan Bhagat is similar to that of Respondent 2-accused Ramawatar Bhagat or not. It appears that the High Court has passed the order mechanically and in a most perfunctory manner.”

¶169

This position was reiterated in Manoj Kumar Khokhar

¶170

v. State of Rajasthan, (2022) 3 SCC 501: 2022 SCC OnLine SC 30 at

¶171

page 513 , wherein it was observed: -

¶172

“25. Another factor which should guide the court's decision in deciding a bail application is the period of custody. However, as noted in Ash Mohammad v. Shiv Raj Singh [Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC 446: (2012) 3 SCC (Cri) 1172] , the period of custody has to be weighed simultaneously with the totality of the circumstances and the criminal antecedents of the accused, if any. Further, the circumstances which may justify the grant of bail are to be considered in the larger context of the societal concern involved in releasing an accused, in juxtaposition to the individual liberty of the accused seeking bail.”

¶173

Similar is the judgment in Brijmani Devi v. Pappu

¶174

Kumar, (2022) 4 SCC 497: (2022) 2 SCC (Cri) 170: 2021 SCC OnLine

¶175

SC 1280 , wherein, it was observed at page 505:-

¶176

“21. In GudikantiNarasimhulu [GudikantiNarasimhulu v. Public Prosecutor, A.P. High Court, (1978) 1 SCC 240: 1978 SCC (Cri) 115] , Krishna Iyer, J., while elaborating on the content and meaning of Article 21 of the Constitution of India, has also elaborated the factors that have to be considered while granting bail which are extracted as under : (SCC p. 244, paras 7-9)

¶177

“ 7 . It is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also

¶178

¶179

is pertinent. The punishment to which the party may be liable if convicted or conviction is confirmed also bears upon the issue.

¶180

Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. [Patrick Devlin: The Criminal Prosecution in England, (London) 1960, p. 75 — Mod. Law Rev. ibid., p. 54]

¶181

Thus the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record — particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.”

¶182

22. Prahlad Singh Bhati v. State (NCT of Delhi) [Prahlad Singh Bhati v. State (NCT of Delhi), (2001) 4 SCC 280: 2001 SCC (Cri) 674] is a case wherein this Court proceeded to state the following principles which are to be considered while granting bail:

¶183

“ 4 . … ( a ) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

¶184

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there

¶185

¶186

being a threat for the complainant should also weigh with the court in the matter of grant of bail.

¶187

¶188

(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.” ( Ram Govind Upadhyay case [Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598: 2002 SCC (Cri) 688 ], SCC p. 602, para 4)

¶189

23. This Court in Ram Govind Upadhyay v. Sudarshan Singh [Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598: 2002 SCC (Cri) 688] , speaking through Banerjee, J., observed as under: (SCC p. 602, para 3)

¶190

“ 3 . Grant of bail though being a discretionary order — but, however, calls for the exercise of such discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always to be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail — the more heinous is the crime, the greater is the chance

¶191

¶192

of rejection of the bail, though, however, dependent on the factual matrix of the matter.”

¶193

24. In Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC (Cri) 1977] , this Court observed in para 11 as under : (SCC pp. 535-36)

¶194

“ 11 . The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly, where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

¶195

( a ) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

¶196

( b ) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

¶197

( c ) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598: 2002 SCC (Cri) 688] and Puran v. Rambilas [Puran v. Rambilas, (2001) 6 SCC 338: 2001 SCC (Cri) 1124] ”

¶198

25. Gobarbhai Naranbhai Singala v. State of Gujarat [Gobarbhai Naranbhai Singala v. State of Gujarat, (2008) 3 SCC 775 : (2008) 2 SCC (Cri) 743] , is a case which concerns

¶199

¶200

the cancellation of bail by this Court in a petition filed under Article 136 of the Constitution of India. In the said case reliance was placed on Panchanan Mishra v. Digambar Mishra [Panchanan Mishra v. Digambar Mishra, (2005) 3 SCC 143: 2005 SCC (Cri) 660] wherein in para 13 it was observed as under: (Panchanan Mishra case [Panchanan Mishra v. Digambar Mishra, (2005) 3 SCC 143: 2005 SCC (Cri) 660] , SCC pp. 147-48)

¶201

“ 13 . … The object underlying the cancellation of bail is to protect a fair trial and secure justice being done to society by preventing the accused who is set at liberty by the bail order from tampering with the evidence in the heinous crime … It hardly requires to be stated that once a person is released on bail in serious criminal cases where the punishment is quite stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tampering with the prosecution witnesses, threatening the family members of the deceased victim and also create problems of law and order situation.”

¶202

26. Further on referring to the State of U.P. v. Amarmani Tripathi [State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21: 2005 SCC (Cri) 1960 (2)] , this Court in Gobarbhai Naranbhai Singala case [Gobarbhai Naranbhai Singala v. State of Gujarat, (2008) 3 SCC 775 : (2008) 2 SCC (Cri) 743] noted the facts of the case therein to the effect that the respondent therein had been named in ten other criminal cases in the last 25 years or so, out of which five cases were under Section 307 IPC for attempt to murder and another under Section 302 IPC for committing murder. That in most of the cases he was acquitted for want of sufficient evidence. Without saying anything further this Court noted that the High Court in the said case completely ignored the general principle for grant of bail in a heinous crime of commission of murder in which the sentence if convicted, is death or life imprisonment.

¶203

¶204

28. This Court in Ash Mohammad v. Shiv Raj Singh [Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC 446: (2012) 3 SCC (Cri) 1172] , observed that though the period of custody is a relevant factor, the same has to be weighed simultaneously with the totality of the circumstances and the criminal antecedents. That these are to be weighed in the scale of collective cry and desire and that societal concern has to be kept in view in juxtaposition to individual liberty, was underlined.

¶205

29. In Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2016) 15 SCC 422: (2016) 4 SCC (Cri) 647] , after referring to a catena of judgments of this Court on the consideration of factors for grant of bail observed through Dipak Misra, J. (as His Lordship then was) in paras 15 and 18 as under: (SCC pp. 429-30)

¶206

“ 15 . This being the position of law, it is clear as a cloudless sky that the High Court has totally ignored the criminal antecedents of the accused. What has weighed with the High Court is the doctrine of parity. A history-sheeter involved in the nature of crimes which we have reproduced hereinabove are not minor offences so that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune. Such cases do create thunder and lightning having the effect potentiality of torrential rain in an analytical mind. The law expects the judiciary to be alert while admitting these kinds of accused persons to be at large and, therefore, the emphasis is on the exercise of discretion judiciously and not in a whimsical manner.

¶207

¶208

18 . Before parting with the case, we may repeat with profit that it is not an appeal for cancellation of bail as the cancellation is not sought because of supervening circumstances. The annulment of the

¶209

¶210

order passed by the High Court is sought as many relevant factors have not been taken into consideration which includes the criminal antecedents of the accused and that makes the order a deviant one. Therefore, the inevitable result is the lancination of the impugned order [ Budhpal v. State of U.P., 2014 SCC OnLine All 14815 ].”

¶211

30. In Anil Kumar Yadav v. State (NCT of Delhi) [Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129: (2018) 3 SCC (Cri) 425] , this Court has spelt out some of the significant considerations which must be placed in the balance in deciding whether to grant bail: (SCC p. 138, para 17)

¶212

“ 17 . While granting bail, the relevant considerations are ( i ) the nature of seriousness of the offence; ( ii ) the character of the evidence and circumstances which are peculiar to the accused; and ( iii ) the likelihood of the accused fleeing from justice; ( iv ) the impact that his release may make on the prosecution witnesses, its impact on the society; and ( v ) likelihood of his tampering. No doubt, this list is not exhaustive. There are no hard-and-fast rules regarding grant or refusal of bail, each case has to be considered on its own merits. The matter always calls for judicious exercise of discretion by the Court.”

¶213

It was observed in Jaibunisha v. Meharban, (2022) 5

¶214

SCC 465: 2022 SCC OnLine SC 58 that the period of custody has to

¶215

be weighed with criminal antecedent. It was observed at page

¶216

478: -

¶217

“21.6. Another factor which should guide the court's decision in deciding a bail application is the period of custody. However, as noted in Ash Mohammad v. Shiv Raj Singh [Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC 446:

¶218

¶219

(2012) 3 SCC (Cri) 1172] , the period of custody has to be weighed simultaneously with the totality of the circumstances and the criminal antecedents of the accused, if any. Further, the circumstances which may justify the grant of bail are to be considered in the larger context of the societal concern involved in releasing an accused, in juxtaposition to individual liberty of the accused seeking bail.”

¶220

It was held in Bharwad Santoshbhai Sondabhai v. State

¶221

of Gujarat, 2023 SCC OnLine SC 1092 that bail cannot be granted to a person having criminal antecedents. It was observed:

¶222

“12. For the reasons noted above, we are of the firm opinion that respondent No. 2 was not entitled to any relief in the instant case. Respondent No. 2 had remained in custody for barely six months (23rd September 2021 to 18th February 2022) before he was released on bail in respect of a serious offence under Section 302 of the IPC. His antecedents also indicate his propensity towards committing crime. Accordingly, the impugned order dated 18th February 2022, is quashed and set aside and respondent No. 2 is directed to surrender forthwith before the trial Court.”

¶223

Therefore, it is apparent from the judgment of this

¶224

Court and the judgments of the Hon’ble Supreme Court that criminal antecedents of the petitioner are important factors that cannot be ignored while deciding the bail petition.

¶225

It was submitted that the other accused has been released on bail and the petitioner is entitled to bail on the principle of parity. This cannot be accepted. The parity can be

¶226

¶227

claimed when the circumstances are similar and not when the circumstances are different. It was laid down by the Hon’ble Supreme Court in Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana , (2021) 6 SCC 230 : (2021) 2 SCC (Cri) 722: 2021 SCC OnLine SC 335 that while determining the parity the role of the accused has to be considered. It was observed at page 246

¶228

“Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident, and the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law.”

¶229

This position was reiterated in Tarun Kumar v. Enforcement Directorate, AIR 2024 SC 169: 2023 SCC OnLine SC 1486 wherein it was observed:

¶230

“18. The submission of learned Counsel Mr. Luthra to grant bail to the appellant on the ground that the other co-accused who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration.”

¶231

¶232

Keeping in view the criminal antecedents and the fact

¶233

that the petitioner was found involved in the commission of a similar offence earlier, the petitioner does not deserve the concession of bail.

¶234

Consequently, the present petition fails and the same is dismissed.

¶235

The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.

¶236

( Rakesh Kainthla) Judge

¶237

10^th July, 2024 (Chander)

Mukesh Sharma v. State of Hp.

Case brief

What is this about?

What did the court decide?

Mukesh Sharma v. State of Hp.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Monika Jaswal Vs Harsh Kathait

Dinesh Chauhan Vs State of Hp and Ors.

Ravi Kant Vs Umesh Kumar Gupta

State Vs Ashok Kumar

Bidhi Chand Vs State of Hp and Others

Mohan Kumar Vs State of Hp and Others