DATARAM SINGHversusSTATE OF UTTAR PRADESH & ANR.

882            SUPREME COURT REPORTS                         [2018] 1 S.C.R.


A                              DATARAM SINGH

                                         v.

                    STATE OF UTTAR PRADESH & ANR.

B                       (Criminal Appeal No. 227 of 2018)

                              FEBRUARY 06, 2018

             [MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]

C           Bail:
             FIR against appellant (accused) u/ss. 419, 420, 406 and 506
      IPC and complaint u/s. 138 of Negotiable Instruments Act – During
      investigation, appellant not arrested – While rejecting his petition
      for quashing the FIR, High Court granted two months time to appear
D     before trial judge – Once again High Court granted him further
      two months time to appear before trial Judge – Thereafter, on
      appellant’s appearing before trial judge, taken into judicial custody
      – Bail applications rejected by trial court as well as High Court –
      On appeal, held: An important facet of criminal jurisprudence is
      that grant of bail is the general rule and putting the person in jail is
E
      an exception – Grant or denial of bail is entirely the discretion of
      the judge – Exercise of such discretion though unfettered, must be
      exercised judicially in a humane manner and compassionately – If
      the Investigating Officer does not find it necessary to arrest an
      accused person during investigation, a strong case should be made
F     out for placing that person in judicial custody – Conduct/
      participation of accused in the investigation; fact as to whether
      accused is first-time offender; nature of offences; general conduct
      of accused; indigent status of accused are to be taken into
      consideration while granting bail – In the present case, accused
      was not arrested during the investigation – Facts indicate that there
G
      was no apprehension that the accused would abscond or hamper
      with trial – Courts below were required to judiciously exercise
      discretion and grant bail to the accused – Code of Criminal
      Procedure, 1973 – s. 436 Explanation; s.436 A – Penal Code, 1860
      – ss.419, 420, 406 and 506 – Negotiable Instruments Act, 1881 –
H     s.138.
                                         882
  DATARAM SINGH v. STATE OF UTTAR PRADESH & ANR.                         883


      Allowing the appeal, the Court                                     A
       HELD : 1. An important facet of criminal jurisprudence is
that the grant of bail is the general rule and putting a person in
jail or in a prison or in a correction home (whichever expression
one may wish to use) is an exception. Unfortunately, some of
these basic principles appear to have been lost sight of with the        B
result that more and more persons are being incarcerated and
for longer periods. This does not do any good to criminal
jurisprudence or to the society. [Para 2] [885-F-G]
       2. The grant or denial of bail is entirely the discretion of
the judge considering a case but even so, the exercise of judicial       C
discretion has been circumscribed by a large number of decisions
rendered by this Court and by every High Court in the country.
Yet, occasionally there is a necessity to introspect whether denying
bail to an accused person is the right thing to do on the facts and
in the circumstances of a case. While so introspecting, among
the factors that need to be considered is whether the accused            D
was arrested during investigations when that person perhaps has
the best opportunity to tamper with the evidence or influence
witnesses. If the investigating officer does not find it necessary
to arrest an accused person during investigations, a strong case
should be made out for placing that person in judicial custody           E
after a charge sheet is filed. Similarly, it is important to ascertain
whether the accused was participating in the investigations to
the satisfaction of the investigating officer and was not absconding
or not appearing when required by the investigating officer. Surely,
if an accused is not hiding from the investigating officer or is
hiding due to some genuine and expressed fear of being                   F
victimised, it would be a factor that a judge would need to consider
in an appropriate case. It is also necessary for the judge to
consider whether the accused is a first-time offender or has been
accused of other offences and if so, the nature of such offences
and his or her general conduct. The poverty or the deemed                G
indigent status of an accused is also an extremely important factor
and even Parliament has taken notice of it by incorporating an
Explanation to Section 436 Cr.P.C. An equally soft approach to
incarceration has been taken by Parliament by inserting Section
436A in Cr.P.C. [Paras 3-4] [885-H; 886-A-E]
                                                                         H
884            SUPREME COURT REPORTS                       [2018] 1 S.C.R.


A           3. A humane attitude is required to be adopted by a judge,
      while dealing with an application for remanding a suspect or an
      accused person to police custody or judicial custody. There are
      several reasons for this including maintaining the dignity of an
      accused person, howsoever poor that person might be, the
      requirements of Article 21 of the Constitution and the fact that
B
      there is enormous overcrowding in prisons, leading to social and
      other problems. It should not be understood to mean that bail
      should be granted in every case. Also, conditions for the grant of
      bail ought not to be so strict as to be incapable of compliance,
      thereby making the grant of bail illusory. [Paras 3 and 7] [886-A-
C     B; 887-C]

            Re-Inhuman Conditions in 1382 Prisons (2017) 10 SCC
            658 – referred to.

D           4. In the present case, during the entire period of
      investigations which appear to have been spread over seven
      months, the appellant was not arrested by the investigating officer.
      Even when the appellant apprehended that he might be arrested
      after the charge-sheet was filed against him, he was not arrested
      for a considerable period of time. When he approached the High
E
      Court for quashing the FIR lodged against him, he was granted
      two months time to appear before the trial judge. All these facts
      are an indication that there was no apprehension that the appellant
      would abscond or would hamper the trial in any manner. That
      being the case, the trial judge, as well as the High Court ought to
F     have judiciously exercised discretion and granted bail to the
      appellant. It is nobody’s case that the appellant is a shady character
      and there is nothing on record to indicate that the appellant had
      earlier been involved in any unacceptable activity, let alone any
      alleged illegal activity. [Para 17] [889-C-E]
G
            Nikesh Tarachand Shah v. Union of India (2017) 13
            SCALE 609 ; Gurbaksh Singh Sibbia v. State of Punjab
            (1980) 2 SCC 565 : [1980] 3 SCR 383 ; Nagendra v.
            King-Emperor AIR 1924 Cal 476 ; Emperor v.
            Hutchinson AIR 1931 All 356 – referred to.
H
  DATARAM SINGH v. STATE OF UTTAR PRADESH & ANR.                                  885


                           Case Law Reference                                     A
(2017) 10 SCC 658                   referred to.               Para 5
(2017) 13 SCALE 609                 referred to.               Para 6
[1980] 3 SCR 383                    referred to.               Para 6
AIR 1924 Cal 476                    referred to.               Para 6             B
AIR 1931 All 356                    referred to.               Para 6


      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 227 of 2018.                                                                  C
       From the Judgment and Order dated 21.09.2017 of the High Court
of Judicature at Allahabad in Criminal Misc. Bail Application No. 18235
of 2017.
     Dharnidhar Jha, Sr. Adv, Rajnish Kumar Jha, Raman Kumar Singh,
Mahendra Kumar, Advs for the Appellant.                                           D

     Ms. Aishwarya Bhati, AAG, D.P. Chaturvedi, Ravi Panwar,
Anuvrat Sharma, Ms. Alka Sinha, Advs for the Respondents.
       The Judgment of the Court was delivered by
       MADAN B. LOKUR, J. 1. Leave granted.                                       E
       2. A fundamental postulate of criminal jurisprudence is the
presumption of innocence, meaning thereby that a person is believed to
be innocent until found guilty. However, there are instances in our criminal
law where a reverse onus has been placed on an accused with regard to
some specific offences but that is another matter and does not detract            F
from the fundamental postulate in respect of other offences. Yet another
important facet of our criminal jurisprudence is that the grant of bail is
the general rule and putting a person in jail or in a prison or in a correction
home (whichever expression one may wish to use) is an exception.
Unfortunately, some of these basic principles appear to have been lost
                                                                                  G
sight of with the result that more and more persons are being incarcerated
and for longer periods. This does not do any good to our criminal
jurisprudence or to our society.
         3. There is no doubt that the grant or denial of bail is entirely the
discretion of the judge considering a case but even so, the exercise of
                                                                                  H
886                SUPREME COURT REPORTS                         [2018] 1 S.C.R.


A     judicial discretion has been circumscribed by a large number of decisions
      rendered by this Court and by every High Court in the country. Yet,
      occasionally there is a necessity to introspect whether denying bail to an
      accused person is the right thing to do on the facts and in the
      circumstances of a case.
B             4. While so introspecting, among the factors that need to be
      considered is whether the accused was arrested during investigations
      when that person perhaps has the best opportunity to tamper with the
      evidence or influence witnesses. If the investigating officer does not
      find it necessary to arrest an accused person during investigations, a
      strong case should be made out for placing that person in judicial custody
C     after a charge sheet is filed. Similarly, it is important to ascertain whether
      the accused was participating in the investigations to the satisfaction of
      the investigating officer and was not absconding or not appearing when
      required by the investigating officer. Surely, if an accused is not hiding
      from the investigating officer or is hiding due to some genuine and
D     expressed fear of being victimised, it would be a factor that a judge
      would need to consider in an appropriate case. It is also necessary for
      the judge to consider whether the accused is a first-time offender or has
      been accused of other offences and if so, the nature of such offences
      and his or her general conduct. The poverty or the deemed indigent
      status of an accused is also an extremely important factor and even
E     Parliament has taken notice of it by incorporating an Explanation to Section
      436 of the Code of Criminal Procedure, 1973. An equally soft approach
      to incarceration has been taken by Parliament by inserting Section 436A
      in the Code of Criminal Procedure, 1973.
            5. To put it shortly, a humane attitude is required to be adopted by
F     a judge, while dealing with an application for remanding a suspect or an
      accused person to police custody or judicial custody. There are several
      reasons for this including maintaining the dignity of an accused person,
      howsoever poor that person might be, the requirements of Article 21 of
      the Constitution and the fact that there is enormous overcrowding in
G     prisons, leading to social and other problems as noticed by this Court in
      In Re-Inhuman Conditions in 1382 Prisons.1
            6. The historical background of the provision for bail has been
      elaborately and lucidly explained in a recent decision delivered in
      1
          (2017) 10 SCC 658
H
    DATARAM SINGH v. STATE OF UTTAR PRADESH & ANR.                             887
                [MADAN B. LOKUR, J.]

NikeshTarachand Shah v. Union of India2 going back to the days of              A
the Magna Carta. In that decision, reference was made to Gurbaksh
Singh Sibbia v. State of Punjab3 in which it is observed that it was held
way back in Nagendra v. King-Emperor4 that bail is not to be withheld
as a punishment. Reference was also made to Emperor v. Hutchinson5
wherein it was observed that grant of bail is the rule and refusal is the
                                                                               B
exception. The provision for bail is therefore age-old and the liberal
interpretation to the provision for bail is almost a century old, going back
to colonial days.
        7. However, we should not be understood to mean that bail should
be granted in every case. The grant or refusal of bail is entirely within
the discretion of the judge hearing the matter and though that discretion      C
is unfettered, it must be exercised judiciously and in a humane manner
and compassionately. Also, conditions for the grant of bail ought not to
be so strict as to be incapable of compliance, thereby making the grant
of bail illusory.
       8. We have been constrained to make these observations in the           D
present appeal, in which the grant of bail has not been opposed by the
State, but there is vehement opposition from the complainant.
       9. On 13th January, 2016 the complainant lodged a First Information
Report (FIR) No.16 of 2016 at Police Station Sahjanawa, Gorakhpur,Uttar
Pradesh, alleging that the appellant had cheated him of an amount              E
exceeding Rs.37 lakhs and had therefore committed an offence
punishable under Sections 419, 420, 406 and 506 of the Indian Penal
Code. It was also alleged that the appellant had issued a cheque for
Rs. 18 lakhs in favour of the complainant (returning a part of the amount
of Rs. 37 lakhs) but had stopped payment of that cheque in violation of        F
Section 138 of the Negotiable Instruments Act, 1881.
      10. Thereafter the complainant filed Complaint Case No. 206 of
2016 on or about 21st January, 2016 alleging the commission of an offence
by the appellant under Section 138 of the Negotiable Instruments Act,
1881.Cognizance was taken and summons issued to the appellant by the           G
concerned Magistrate in the complaint case.

2
  2017 (13) SCALE 609
3
  (1980) 2 SCC 565
4
  AIR 1924 Cal 476
5
  AIR 1931 All 356
                                                                               H
888             SUPREME COURT REPORTS                            [2018] 1 S.C.R.


A            11. Much later, on or about 15th August, 2016, the investigating
      officer filed a charge sheet against the appellant being Case Crime No.
      18 of 2017. It is not clear why the Case Crime was registered so late (it
      may be a typo), but be that as it may, it appears that during the
      investigations the appellant was not arrested.
B            12. Fearing arrest after the charge sheet was filed against him,
      the appellant moved the Allahabad High Court for quashing the FIR
      lodged against him. The record of the case reveals that on 7th February,
      2017 the High Court declined to quash the FIR, but granted two months
      time to the appellant to appear before the trial judge. Presumably, it was
      directed that during this period, the appellant should not be arrested. On
C     11th April, 2017 the appellant approached the Allahabad High Court once
      again, this time for a further period of two weeks to enable him to appear
      before the trial judge. Time as prayed for, appears to have been granted
      and eventually on 24th April, 2017 the appellant appeared before the trial
      judge and was taken into judicial custody. The appellant has been in
D     judicial custody ever since.
              13. A bail application moved by the appellant was rejected by the
      trial judge on 27th April, 2017 and another application for bail was rejected
      by the Allahabad High Court on 21st September, 2017 (impugned before
      us).
E            14. On 23rd January, 2018 when the appeal was listed before us,
      the complainant was represented by learned counsel even though he
      was not a party to the proceedings. However, on the oral request of
      learned counsel for the appellant the complainant was impleaded as a
      party respondent. Notice was then issued to the State of Uttar Pradesh,
F     while notice was accepted by learned counsel for the complainant on his
      behalf. A request was made for filing a reply to the petition for special
      leave to appeal and two days time was granted for this purpose since
      the appellant was in judicial custody for a considerable period.
             15. Even though the State of Uttar Pradesh has been served in
G     the appeal, no one has put in appearance on its behalf. As far as the
      complainant is concerned, no reply was filed by the time the matter was
      taken up for consideration on 29th January, 2018. Accordingly, the matter
      was adjourned to 2nd February, 2018 by which date also no reply was
      filed by the complainant. As mentioned above, no one has put in
      appearance on behalf of the State of Uttar Pradesh to oppose the grant
H     of bail to the appellant.
  DATARAM SINGH v. STATE OF UTTAR PRADESH & ANR.                                889
              [MADAN B. LOKUR, J.]

       16. Learned counsel for the complainant vehemently contended             A
that the appellant had duped him of a considerable amount of money and
that looking to the seriousness of the allegations against him, this was
not a case in which the appellant ought to be granted bail by this Court.
Learned counsel supported the view taken by the trial judge as well as
by the Allahabad High Court. He argued that given the conduct of the
                                                                                B
appellant in not only cheating the complainant and depriving him of a
considerable sum of money but thereafter issuing a cheque for which
payment was stopped made it an appropriate case for dismissal.
        17. In our opinion, it is not necessary to go into the correctness or
otherwise of the allegations made against the appellant. This is a matter
that will, of course, be dealt with by the trial judge. However, what is        C
important, as far as we are concerned, is that during the entire period of
investigations which appear to have been spread over seven months, the
appellant was not arrested by the investigating officer. Even when the
appellant apprehended that he might be arrested after the charge sheet
was filed against him, he was not arrested for a considerable period of         D
time. When he approached the Allahabad High Court for quashing the
FIR lodged against him, he was granted two months time to appear
before the trial judge. All these facts are an indication that there was no
apprehension that the appellant would abscond or would hamper the
trial in any manner. That being the case, the trial judge, as well as the
High Court ought to have judiciously exercised discretion and granted           E
bail to the appellant. It is nobody’s case that the appellant is a shady
character and there is nothing on record to indicate that the appellant
had earlier been involved in any unacceptable activity, let alone any alleged
illegal activity.
      18. In our view, taking all these and other factors into consideration,   F
it would be appropriate if the appellant is granted bail on conditions that
may be reasonably fixed by the trial judge. We order accordingly.
       19. We should not be understood to have expressed any opinion
on the allegations made against the appellant, both in the charge sheet as
well as in the complaint case filed against him.                                G
      20. The appeal is allowed.


Kalpana K. Tripathy                                           Appeal allowed.
                                                                                H