Detention Is Not Supposed To Be Punitive/Preventive And Seriousness of Allegations Are Not Only Considerations For Declining Bail: Delhi HC
While batting most strongly in favour of ensuring strictly that the legal rights of the accused are protected and are not violated with impunity, the Delhi High Court in a most learned, laudable, logical, landmark and latest judgment titled Parvez Ahmed Sheikh v. State (Govt of NCT of Delhi) in Bail Appln. 707/2023 that was pronounced as recently as on October 9, 2023 has in the fitness of things while taking the right step in the right direction granted bail to a man who was arrested and charged with human trafficking, rape and sexual assault after being nearly five years in custody. It was made crystal clear by the Delhi High Court that detention is not supposed to be punitive/preventive and seriousness of allegations are not the only considerations for declining bail. It must be noted here that the Delhi High Court held so most elegantly, eloquently and effectively while it was considering a petition that had been filed by Parvez Ahmed Sheikh who is the petitioner and who sought regular bail in an FIR that was finally registered against him under many Sections of the Indian Penal Code, 1860 comprising of 33A/363/372/373/376/377/368/174-A/109/34 and so also under Sections 3/4/6 of the Immoral Traffic Prevention Act, 1956 and so also Section 23/26 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
At the very outset, this remarkable, robust, rational and recent judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Vikas Mahajan of the Delhi High Court sets the ball in motion by first and foremost putting forth in para 1 that, “The present petition has been filed by the petitioner under Section 439 Cr.P.C. seeking regular bail in FIR No. 05/2012 under Section 366A/363/372/373/376/377/368/174-A/109/34 Indian Penal Code, 1860 and under Sections 3/4/6 of Immoral Traffic Prevention Act, 1956 and Section 23/26 of Juvenile Justice (Care and Protection of Children) Act, 2000 registered at P.S. Kamla Market.”
As we see, the Bench then discloses in para 2 succinctly stating that, “Vide order dated 03.03.2023, notice was issued in the bail application of the petitioner and the State was directed to file a Status Report. The State has filed Status Reports dated 17.04.2023 and 08.07.2023, which are on record.”
To put things in perspective, the Bench envisages in para 3 that, “The case of the prosecution as borne from the status reports is that information was received by the police that some minor girls were being kept forcibly at GB Road and were also being compelled for prostitution. On this information, a raiding team was constituted and raid was conducted whereby 10 girls namely CC, SM, RR, RB, LSP, KN, RN,JD, SK and CGK were rescued.”
Further, the Bench then enunciates in para 4 that, “Thereafter, on the statement recorded under Section 161 Cr.P.C. of the rescued girl CC R/o Hyderabad, Andhra Pradesh, the aforesaid FIR came to be registered. In her statement under Section 161 Cr.P.C., the victim deposed that after her parents passed away, she went to Pune in search of a job and remained there for around two years. During this period, she met with one unknown boy who lured her to Delhi on the pretext of a job and sold her to one lady namely, Rani for Rs. 30,000/-. Thereafter, the victim CC was forced to establish sexual relations under threat by Rani and Reshma. She further alleged that the present petitioner who was living at the brothel, used to facilitate the accused Rani and Reshma for compelling the petitioner to establish sexual relations against her will. She further alleged that the petitioner used to beat the victim and did not allow the petitioner to leave from the brothel. She also alleged that a person ‘PAPA’ was the owner of the brothel and would visit the brothel and would also frighten and threaten the victim.”
As it turned out, the Bench then enunciates in para 6 that, “Thereafter, search of the petitioner was made by the IO but since the petitioner was absconding, he was declared Proclaimed offender. Thereafter, the petitioner was arrested by Crime Branch, Kotwali, Delhi vide DD No.-4, Dated 23.12.2018 under Section 41- 1(C) Cr.P.C. and on 14.01.2019, he was formally arrested in the present case before the Hon’ble Court.”
Needless to say, the Bench states in para 19 that, “I have heard the learned senior counsel for the petitioner as well as the learned APP for the State and perused the material on record.”
While citing the most recent and relevant case law, the Bench then propounds aptly in para 24 holding that, “It is trite that the detailed and elaborate appreciation of evidence cannot be undertaken at the stage of considering bail application. However, for the limited purpose of seeing whether there exists a prima facie case in favour of the accused warranting grant of bail, the evidence can be looked into for indicating reasons therefor. Reference may be had to the observations of the Supreme Court in Lt. Col. Praasad Shrikant Purohit v. State of Maharastra, (2018) 11 SCC 458, which read as under:-
“29. 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:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge.””
Be it noted, the Bench notes in para 25 that, “In view of the settled law, this Court cannot shut it eyes to the improvements, inconsistencies or contradictions in the testimonies of the material witnesses viz., PW-5, PW-6 and PW-8 which may have the potential of making dent into the case of the prosecution to an extent. However, the evidentiary value of the testimonies will be seen by the learned Trial Court at an appropriate stage.”
It cannot be glossed over that the Bench expounds in para 26 that, “The offences under Section 6 of Immoral Traffic Prevention Act, 1956 and Section 376 of the Indian Penal Code, 1860 are punishable with maximum punishment of life imprisonment. Whereas, the remaining offences under the Indian Penal Code, 1860 are punishable with imprisonment which may extend to 10 years. However, it is yet to be established whether the petitioner is guilty under Section 6 of the Immoral Traffic Prevention Act, 1956 and under Section 376 of the Indian Penal Code, 1860 in light of the evidence that may come on record during trial. For now, it cannot be ignored that at the pre-conviction stage there is a presumption of innocence.”
It would be worthwhile to note that the Bench notes in para 27 that, “Further, while it is the case of the prosecution that the petitioner is the main accused in the matter and is also the owner of the brothel, but notably no documentary evidence in the form of any sale deed, lease deed or any other document have not been relied upon by the prosecution in support of the aforesaid contention.”
No doubt, the Bench then observes in para 28 that, “Undisputedly, all available victims have already been examined and only formal witnesses are to be examined, therefore, there is no question of any apprehension that the petitioner may influence the witnesses if enlarged on bail.”
It would be germane to note that the Bench then notes in para 29 that, “It is also not disputed by the prosecution that the antecedents of the petitioner are clean, rather it is mentioned in the status report that there is no case pending against the present petitioner.”
As things stands, the Bench then specifies in para 30 that, “The nominal roll dated 20.04.2023 reveals that as on 19.04.2023, the petitioner has spent 4 years 3 months and 26 days in custody. Therefore, it can be safely presumed that the petitioner has spent approximately 4 years and 10 months in custody till date.”
Most significantly, most forthrightly and so also most commendably, the Bench then mandates in para 31 that, “The object of keeping a person in custody is to ensure his availability to face the trial and to receive the sentence that may be awarded to him. Detention is not supposed to be punitive or preventive. The seriousness of allegations or the availability of material in support thereof are not the only considerations for declining bail. Delay in the commencement and conclusion of the trial is a factor to be taken into account and the accused cannot be kept in custody for an indefinite period if the trial is not likely to be concluded within a reasonable time. [Vinod Bhandari v. State of Madhya Pradesh, (2015) 11 SCC 502].”
On a pragmatic note, the Bench hastens to add in para 32 stating that, “At this stage, it cannot be overlooked that the petitioner has been incarcerated for approx. 4 years and 10 months and the prosecution has cited as many as 39 witnesses, of which 13 are yet to be examined, which would inevitably lead to a protracted trial. In the given circumstances, no useful purpose will be served in keeping the petitioner behind bars.”
Quite rightly, the Bench then observes in para 33 that, “In so far as the apprehension expressed by the learned APP as regards the petitioner being a flight risk, the same can be dispelled by putting stringent conditions.”
All told, we thus see so very ostensibly that the Delhi High Court has so brilliantly laid all persisting doubts to rest by emphatically holding in this noteworthy judgment that detention is not supposed to be punitive/preventive and seriousness of allegations are not the only considerations for declining bail. The petitioner was thus granted bail pending trial subject to his furnishing a personal bond in the sum of Rs. 50,000/- with two sureties of like amount, subject to the satisfaction of the Trial Court/Duty Magistrate/CMM with stringent conditions attached as laid down so very commendably by the Court in this leading case! Very rightly so!
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