Avtar Singh vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Instant petition has been preferred by the petitioner, seeking anticipatory bail under Section 438 of the Code of Criminal Procedure (in short ‘Cr.P.C.), in case FIR No. 147 of 2021, dated 24.5.2021, registered in Police Station, Nalagarh under Sections 147, 148, 149, 341, 323, 307, 302, 120B, 201 IPC and 25, 29B, 30 of the Arms Act.

As per prosecution case, petitioner is main conspirator in present case, wherein one Simran @ Simu has been murdered in sequel to a conspiracy hatched by petitioner and other co-accused. As per prosecution case, occurrence of incident in present case is a result of chains of incidents taking place since 27th March, 2021, as on that date during Panchayat Elections petitioner abused Simran @ Simu and consequently during evening of that day Simran @ Simu and his friends beat present petitioner regarding which a case was registered against Simran @ Simu and others as an FIR No. 93 of 2021, dated 27.3.2021 under Sections 147, 148, 149, 323, 506 IPC in Police Station Nalagath. Thereafter group of Avtar Singh beat Ashraf Ali, God brother of Simran @ Simu at Nanawal to take revenge of beating Avtar Singh consequently a case was registered against Avtar Singh and others as FIR No. 100 of 2021, dated 3.4.2021, under Sections 147, 148, 149, 323 and 326 IPC and Section 25 of the Arms Act, in Police Station, Nalagarh. According to prosecution case, main target of Avrar Singh and his group was Simran @ Simu, therefore, petitioner alongwith his companions conspired to kill Simran @ Simu and in furtherance to that conspiracy, on 22.5.2021, group of petitioner had stopped friends of Simran @ Simu and inquired them about location of Simran @ Simu with their expressed intention to kill him. Petitioner’s group was searching Simran @ Simu at various places wherever his presence was expected and possible and ultimately on 24.5.2021 Simran @ Simu was killed by gunshot, resulting in lodging of FIR in present case. During the same period marriage of sister of present petitioner was scheduled on 23-24.5.2022.

Learned counsel for the petitioner has submitted that in FIR name of petitioner has been mentioned as an accused present on the spot who participated in commission of offence, whereas, it has been concluded by the Investigating Officer that at the relevant point of time, petitioner was not present on the spot, but was involved in hatching a conspiracy to kill Simran @ Simu and, therefore, he has been arrayed as an accused in present case as a conspirator and thus he cannot be considered to have committed the offence under Section 302 IPC. To substantiate absence of the petitioner on spot, learned counsel for the petitioner has referred photograph of screen shot of Video, wherein at 2:57 P.M. on 24.5.2021, petitioner has been claimed to be present in marriage of his sister.

Learned counsel for the petitioner has referred pronouncements of this Court in Mangal Singh Negi Vs. Central Bureau of Investigation, 2021 (2) Shim. LC 860 and Freed Vs. State of Himachal Pradesh, 2020 (3) Shim. LC 1614, to substantiate the claim of petitioner to enlarge him on anticipatory bail.

Learned Additional Advocate General has submitted that during investigation in a case FIR No. 161 of 2021 registered in Police Station Nalagarh, with respect to the same incident, on the basis of communication received by the Police from some villagers, but advancing the cause of and on behalf of petitioner and his group, companions of the petitioner in their statements recorded under Section 161 Cr.P.C. have claimed that on the day of incident in present case petitioner was accompanying them, but had gone to attend the marriage of his sister for a while, as repeated calls were being received by him from his home to come to attend the necessary ceremonies of marriage of his sister, being brother of bride. It has been further stated that as recorded in order dated 17.1.2022 passed by Additional Sessions Judge, while rejecting bail application of the petitioner, house of the petitioner is at a distance of 10-15 Kilometers from the spot of occurrence and it hardly takes 15 minutes to reach there and, therefore, it is claimed that it was not impossible for the petitioner to accompany his companions involved in commission of offence and also to join the marriage function within a short period.

Learned Additional Advocate General has submitted that a single photograph of screen shot of video is not sufficient to arrive at a conclusion that petitioner was not present on the spot or not involved in commission of offence as a main conspirator. According to him entire video film would be relevant for that purpose and in case such evidence is brought on record, it has to be assessed by the Trial Court on conclusion of trial. Learned Additional Advocate General had also submitted that in view of conduct of the petitioner, as he was absconding, since the day of incident he is not entitled for discretionary relief under Section 438 Cr.P.C., particularly, when his custodial interrogation is warranted. It has been further submitted by learned Additional Advocate General that custody of the petitioner was also warranted in another case FIR in which his bail application has been rejected and thus when petitioner approached the Police Station with anticipatory bail in present case he has been arrested in another case and, therefore, interrogation of petitioner in present case is yet pending.

Learned Additional Advocate General has opposed the grant of anticipatory bail to the petitioner with submission that his custodial interrogation is warranted for revelation of certain facts about the conspiracy hatched by the petitioner and his group to kill Simran @ Simu.

Learned counsel for the complainant has submitted that incident took place on 24.5.2021 and petitioner was named therein and most of the accused persons were arrested by the Police, but petitioner fled and was not traceable for a long time and now he has approached the Court after dismissal of his anticipatory bail application by Sessions Court, for which he is not entitled, particularly keeping in view his conduct. 6.

Section 438 of the Cr.P.C. is a right provided for a person to approach the High Court or the Court of Session, seeking direction to enlarge him on bail, in the event of his arrest, in a case wherein he apprehends his arrest on accusation of having committed a non-bailable offence.

Commenting upon the right provided under Section 438 of the Cr.P.C., the Supreme Court in State of M.P. & another v. Ram Kishna Balothia & another, (1995) 3 SCC 221, has observed that it is essentially a statutory right conferred long after the coming into force of the Constitution, but with clarification that it cannot be considered as an essential ingredient of Article 21 of the Constitution.

Section 438 of the Cr.P.C. in itself provides certain factors, referred supra, for taking into consideration at the time of deciding bail applications under this Section, which are inclusive in nature. Some of other such principles, factors and parameters to be taken into consideration by the Court at the time of adjudicating an application under Section 438 of the Cr.P.C. have been elaborated and explained in pronouncements in cases Gurbaksh Singh Sibbia & others v. State of Punjab, (1980) 2 SCC 565; Pokar Ram v. State of Rajasthan and others, (1985) 2 SCC 597; Savitri Agarwal and others v. State of Maharashtra and another, (2009) 8 SCC 325; Siddharam Satlingappa Mhetre v. State of Maharashtra and others, (2011) 1 SCC 694; Bhadresh Bipinbhai Sheth v. State of Gujarat and another, (2016) 1 SCC 152; Dataram Singh v. State of Uttar Pradesh and another, (2018) 3 SCC 22; P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24 and Sushila Aggarwal & Others v. State (NCT of Delhi) & another, (2020) 5 SCC 1.

There is difference of factors, parameters and points to be considered at the time of adjudicating bail applications under Sections 438, 439 as well as 437 Cr.P.C. Person may be entitled for bail under Sections 437 and 439 Cr.P.C., in a given case, but may not be entitled for anticipatory bail under Section 438 Cr.P.C., for various reasons as discussed in pronouncements referred supra.

Pronouncements in cases Mangal Singh Negi and Freed, relied upon by counsel for petitioner, have been passed in the facts and circumstances of those cases, but applying the parameters and factors propounded in pronouncements of the Supreme Court referred herein before.

As per prosecution case, petitioner is main conspirator, as chain of incidents, referred supra, were started with the conduct of the petitioner and in order to take revenge, petitioner conspired, and with the help of companions, committed the murder of Simran @ Simu on 24.5.2021 and since then he was fleeing from the Investigating Agency, not only in present case but also in another case FIR registered against him in April, 2021.

From the material placed before me, it cannot be said that ex-facie no case is made out at all against the petitioner and accusation has been made with object of injuring or humiliating him by having him so arrested. Though, it has been contended on behalf of petitioner that despite his absence on the spot he has been implicated falsely, but as recorded by learned Additional Sessions Judge in his order, at the same time distance of house of the petitioner, from the spot of occurrence, has not been disputed. It is also a hard fact that after the incident petitioner was not available since May, 2021 till filing of anticipatory bail application before Additional Sessions Judge. No explanation has been given either in the bail application or in the arguments for his non availability or about his place of staying during this period.

On 21.2.2022 petitioner was granted interim bail, pending filing of status report by the State, subject to petitioner to report at Police Station, Nalagarh on 22.2.2022 at 11:00 A.M. and join investigation on each and every date as and when called by the Investigating Agency and next date for hearing was fixed on 28.2.2022. Though petitioner attended the Police Station on 22.2.2022 and supplied copy of order passed by this Court, but did not attend the Police Station for joining investigation thereafter, despite asking by the Police to do so. Further petitioner was again directed to join investigation on 1.3.2022 and the next date was fixed as 7.3.2022. On 7. 3.2022, it has been informed that petitioner has been arrested in another case, wherein also he was wanted as in that case his bail application for anticipatory bail had been rejected.

In this petition or during hearing of the matter on various dates, it was never disclosed by or on behalf of the petitioner that he was wanted by the Police for custody in another case also. Probably for that reason only petitioner was not joining the investigation and was expecting his enlargement on anticipatory bail without joining the investigation. During currency of interim bail, in present case, petitioner has been arrested in another case, whereas as Investigating Officer is warranting his custody for custodial interrogation in present case.

I am of the opinion that petitioner, at this stage, is not entitled for discretionary relief under provisions of Section 438 Cr.P.C. providing anticipatory bail as in given facts and circumstances of present case his custodial interrogation appears to be necessary. Needless to say he has a right to avail remedy under Section 439 Cr.P.C., and benefit thereof if case is made out.

In the light of above discussion, without commenting on merit of material available on record, but taking into consideration parameters and factors propounded by in various pronouncements of the Courts, I find that not only balance of convenience, but balance of justice and larger public interest, in comparison to private interest of the petitioner, is against the prayer made by the petitioner.

Now the petitioner is stated to be in judicial custody in another case FIR, therefore, Investigating Officer is permitted and directed to seek custody of petitioner in present case, without waiting for result of that case or bail application, if any, moved by petitioner, but during pendency of his judicial custody in that case and to complete interrogation and investigation in present case.

With the aforesaid observations, present petition is dismissed.