Gagandeep vs State Of Himachal Pradesh

Sushil Kukreja, J

The present petition has been filed by the petitioner under Section 439 of the Code of Criminal Procedure (for short “Cr. P.C.”), seeking bail in case FIR No. 204/2022, dated 12.09.2022, registered at Police Station Haroli, District Una, H.P., under Sections 302, 382, 323, 212, 201, 120-B & 34 of the Indian Penal Code (for short “IPC”), read with Section 25 of the Arms Act and Sections 181, 192 and 196 of the Motor Vehicles Act (for short “MV Act”).

The brief facts of the case, as per the status report filed by the respondent-State are that on 12.09.2022, at about 6.45 p.m., complainant Keshav Sharma was present in the shop of his uncle Ravinder Kumar alias Sethi at Dulehar, who told him that he had to go to Laluwal market. Thereafter, his uncle took his motorcycle and, in the meantime 4-5 persons on two motorcycles came there and started abusing his uncle. Though his uncle told them to stop, but they did not stop and went towards village Bolewal and Ravinder Kumar also went on his motorcycle behind them. On having suspicion that those persons might indulge in quarrel with his uncle, the complainant also went towards village Bolewal and when he reached near the gate of Government Primary School, Dulehar, he saw that his uncle and the said motorcycle riders were present there and the said motorcycle riders were touching the feet of his uncle and they appeared to be under the influence of intoxication. The uncle of complainant took out his mobile phone and said that he would call the police and get those persons medically examined. In the meantime, one of them, took out a pistol and fired on the chest of Ravinder Kumar and they also started giving beatings to the complainant and ran away from the spot. The people from the market gathered on the spot and took the complainant and Ravinder Kumar to CHC, Dulehar, from where, Ravinder Kumar was referred to Regional Hospital, where the complainant came to know that his uncle had died. Thereafter, the police recorded the statement of complainant under Section 154 Cr.P.C., on the basis of which, FIR in question came to be registered.

The instant bail application has been filed on behalf of the petitioner on the grounds that he is innocent and has been falsely implicated in this case. Learned counsel for the petitioner has contended that the petitioner was not present with the accused persons at the time of alleged incident. He further contended that the petitioner is only 20 years of age and in case he is not enlarged on bail, his entire career will be ruined, as such, no fruitful purpose will be served by keeping him behind the bars for an unlimited period, as the trial may take sufficiently long time to conclude, so he be released on bail.

Conversely, the learned Additional Advocate General has opposed the bail application on the ground that the petitioner is involved in a serious offence and keeping in view the gravity of the offence, he is not entitled to be released on bail. He further contended that if the petitioner is enlarged on bail, he will try to influence the witnesses and may also tamper with the prosecution evidence and may flee from justice, as he is a resident of Punjab.

I have given my considered thought to the rival contentions raised and also gone through the police file as well as the status report filed by the prosecution. The perusal of the record reveals that the investigation in the case is complete and the charge-sheet has also been filed before the trial Court and the petitioner is presently lodged in the judicial custody since his arrest.

In Sanjay Chandra Vs. Central Bureau of Investigation, (2012) 1 Supreme Court Cases 49, it has been held that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail and that every man is deemed to be innocent until duly tried and duly found guilty. Relevant portion of the aforesaid judgment reads as under:-

“21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.

Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.”

In Manoranjana Sinh alias Gupta Vs. CBI, (2017) 5 SCC 218, the Hon’ble Apex Court reiterated the decision rendered in Sanjay Chandra’s case (supra) by holding as under:-

“16. This Court in Sanjay Chandra Vs. Central Bureau of Investigation (2012) 1 SCC 40, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive nor preventive. This Court sounded a caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and that grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted.”

Similar reiteration of law can be found in Dataram Singh Vs. State of Uttar Pradesh & Another, (2018) 3 SCC 22, wherein it has been held that a person is believed to be innocent until found guilty and the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home is an exception. Relevant portion of the aforesaid judgment reads as under:-

“1. 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 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 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.

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To put it shortly, 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 there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons.”

In the case in hand, the complicity, if any, of the petitioner is yet to be established, as the record reveals that only allegation against the bail petitioner is that one day prior to the incident, he went alongwith accused Jasbir Singh, Rishupal alias Mani, Abhishek alias Shaktimaan and Kulvir alias Mithu on his motorcycle to Tahliwal and Dulehar and he was involved in the conspiracy to kill the deceased. At this stage, there is no material on record to suggest that the bail petitioner has accompanied the accused persons on 12. 09.2022, i.e. on the date of incident, as such, there is no reason to let the petitioner incarcerate in jail for an indefinite period during trial, especially when he is behind the bars since 17.09.2022 and the trial is not likely to be concluded in near future. There is also nothing on record to suggest that the petitioner will tamper with the prosecution evidence and that he will abscond and flee from justice, if enlarged on bail. Moreover, co-accused Harbans Singh, Raj Rani, Kulwant Singh and Sukhdev Singh have already been released on bail by the learned trial Court, as such, the petitioner also deserves to be released on bail on the ground of parity.

Considering the overall facts and circumstances of the case, this Court finds that the present is a fit case where judicial discretion to admit the petitioner on bail is required to be exercised in his favour. Accordingly, the bail application is allowed and it is ordered that the petitioner, who has been arrested by the police, in case FIR No. 204/2022, dated 12.09.2022, registered at Police Station Haroli, District Una, H.P., under Section 302, 382, 323, 212, 201, 120B & 34 of IPC, Section 25-54-59 of the Arms Act and Sections 181, 192 and 196 of the MV Act, shall be forthwith released on bail, subject to his furnishing personal bond to the tune of Rs. 1,00,000/- (Rupees one lakh) with one local surety of District Una, H.P. in the like amount to the satisfaction of learned trial Court. The bail order is, however, subject to the following conditions:-

(i) that the petitioner will appear before the Court and the Investigating Officer whenever required ;

(ii) that he will not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing any facts to the Court or the police;

(iii) that he will not tamper with the prosecution evidence nor he will try to win over the prosecution witnesses or terrorise them in any manner;

(iv) that he will not deliberately and intentionally act in a manner which may tend to delay the investigation or the trial of the case.

(v) that he will not leave India without prior permission of the Court.

Needless to say that the Investigating agency shall be at liberty to move this Court for cancellation of the bail, if any of the aforesaid conditions is violated by the petitioner.

Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the trial Court will not be influenced by any observations made therein.