Jagdeep Khan @ Jagga vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner, namely Jagdeep Khan, who is behind bars since 17.1.2019, has approached this Court in the instant proceedings filed under Section 439 of Cr.PC, for grant of regular bail in connection with FIR No. 11/19, dated 7.1.2019, under Sections 392, 307 & 120-B of IPC and Sections 25 - 54- 59 of Arms Act, registered at P.S. Baddi, District Solan, H.P.

In terms of order dated 23.9.2019, SI Mohar Singh, P.S. Baddi, District Solan, H.P., has come present alongwith records. Mr. Sudhir Bhatnagar, learned Additional Advocate General, has also placed on record status report prepared on the basis of investigation carried out by the Investigating Agency. Record perused and returned.

Record/status report made available to this Court reveals that on 7.1.2019, complainant namely Amit Kumar telephonically informed police station Baddi that at a place called Sandoli Gurudwara, two motorcycle riders after having fired at a person riding on motorcycle have fled away towards Nalagarh. Police after having received aforesaid information though made an attempt to record the statement of injured, but since his condition was critical, police recorded statement of above named complainant Amit Kumar under Section 154 Cr.PC, who stated that on 7.1.2019, person carrying a bag on his shoulder was riding on motorcycle bearing registration No. HP12G6402 at a place called Malpur Bridge and then suddenly, he saw that two persons going towards Baddi riding on motorcycle with covered faces were trying to hold the rider of earlier motorcycle. He further alleged that riders of silver coloured motorcycle were seen by him coming back at Chinar Hotel, whereas rider (victim) of motorcycle bearing registration No. HP12G6402 was lying on road. On inquiry, it was revealed to the complainant by the person present on the spot that rider of the silver coloured motorcycle fired and snatched bag containing 7.57 lac rupees. On the basis of aforesaid statement made by the complainant, FIR detailed herein above came to be lodged at PS Baddi. Injured/victim Lal Chand remained admitted at PGI Chandigarh for a considerable time. Though injured stands discharged from the hospital, but injuries suffered by him have been opined to be grave in nature. On the basis of CCTV footage and dump data, police apprehended the accused namely Majar Singh, Sukhbir Singh and Hardeep Singh alias Rimpa. Police allegedly recovered sum of Rs. 3,19,000/- from the above named accused, who during investigation disclosed that they had taken pistol from the co-accused Taj Mohammad for sum of Rs. 1,04,000/- Accused named herein above further disclosed to the police that present bail petitioner Jagdeep Khan had disclosed to them that person namely Lal Chand (victim) usually carries cash and as such, they in connivance with each other robbed him. On the basis of aforesaid statement made by the co-accused Sukhbir Singh, bail petitioner came to be arrested on 17.1.2019 and since then he is behind bars. Co- accused Taj Mohammad stands enlarged on bail vide order dated 28.8.2019, passed by this Court in Cr.MP(M) No. 1562 of 2019, whereas three main accused namely Mejar Singh, Sukhbir Singh and Hardeep Singh alias Rimpa are behind the Bars.

On the last date of hearing, close scrutiny of record/status report revealed that during investigation main accused in the present FIR disclosed that they had earlier robbed one person showed/named by the bail petitioner in the incident took place at Ramshehar, accordingly, this Court directed the Investigating Officer to verify whether in that case present petitioner was named in the FIR and thereafter case, if any, was instituted against him or not. Today, during the proceedings of the case, learned Additional Advocate General, on instructions of Investigating Officer, has fairly stated that as per record of previous investigation, present petitioner was not named in the previous FIR lodged against the main accused Mejar Singh, Sukhbir Singh and Hardeep Singh alias Rimpa.

Learned Additional Advocate General while fairly admitting factum with regard to filing of challan strenuously argued that keeping in view the gravity of offence alleged to have been committed by the bail petitioner, his bail petition deserves outright rejection. He further contended that it has come in the investigation that co-accused Sukhbir Singh Sukha used to work in the shop of present bail petitioner and it is the bail petitioner, who disclosed to the co-accused Sukhbir Singh Sukha with regard to cash usually carried by the victim Lal Chand. Learned Additional Advocate General further contended that investigation reveals that entire conspiracy was hatched in the shop of present bail petitioner, who also got sum of Rs. 60,000/- of his share from the money allegedly robbed by the other co-accused from the victim Lal Chand. Lastly, learned Additional Advocate General, contended that since bail petitioner hails from the State of Punjab, it would be difficult to ensure his presence during trial and as such, his prayer for release on bail at this stage may not accepted.

Having heard learned counsel for the parties and perused material available on record, this Court finds that as per case of the prosecution, during investigation accused Sukhbir Singh disclosed that present bail petitioner, in whose shop, he used to work, told him that victim/injured Lal Chand usually carries money after collecting from local people. As per investigation Sukhbir Singh asked for some money from the present bail petitioner Jagdeep Khan, who while stating that he has no money allegedly disclosed to the co-accused Sukhbir Singh, Major Singh and Hardeep Singh with regard to identity and name of victim-injured Lal Chand. Present bail petitioner whose name admittedly came to be included in the FIR on the basis of the statement of Sukhbir Singh though categorically denied the fact that he had shared information, if any, with the accused, but sum of Rs. 30,000/- came to be recovered from his shop at his behest. But recovery, if any, of amount referred herein above, cannot be a ground at this stage to conclude that bail petitioner conspired with other co-accused for the commission of the alleged offence because it has specifically come in the statement of co-accused Sukhbir Singh that he earlier used to work in the shop of present bail petitioner. No doubt record reveals that sum of Rs. 30,000/- came to be recovered from the shop of Jagdeep Khan, but such recovery admittedly came to be effected from the cash drawer of present bail petitioner, who at the time of the alleged incident was running a work shop. Though it has come in the statement of Sukhbir Singh that present bail petitioner had disclosed them that injured Lal Chand usually carries money but that cannot be a ground to arrive at conclusion that the present bail petitioner asked the co-accused to rob person named/showed by him. Factum with regard to participation, if any, of the bail petitioner in the alleged commission of offence is yet to be established by the Investigating Agency by way of leading cogent and convincing evidence and as such, mere recovery of 30,000/- from the cash drawer of the bail petitioner cannot be a sole ground to conclude his involvement in the alleged offence.

Though aforesaid aspects of the matter are to be considered and decided by the court below on the basis of totality of evidence collected on record by the Investigating Agency, but having noticed aforesaid glaring aspect of the matter, this Court, sees no reason to let the bail petitioner incarcerate in jail for an indefinite period, especially when guilt, if any of him is yet to be proved in accordance with law.

Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., decided on 6.2.2018, has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon'ble Apex Court further held that while considering prayer for grant of bail, 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. Hon'ble Apex Court has further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid judgment are reproduced as under:

"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 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.

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 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.

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 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 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 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.

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.

Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.

The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; held as under:-

" 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. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted 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 India , 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 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 unconvicted person for the propose of giving him a taste of imprisonment as a lesson."

In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218, The Hon'ble Apex Court has held as under:-

" This Court in Sanjay Chandra v. CBI, 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 or 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 to 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 ad 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 the 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."

The Hon'ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496, has laid down the following principles to be kept in mind, while deciding petition for bail:

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

(ii) nature and gravity of the accusation;

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

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

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

(vi) likelihood of the offence being repeated;

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

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

In view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 1,00,000/- with two local sureties in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions:

(a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

(b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

(c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and

(d) He shall not leave the territory of India without the prior permission of the Court.

(e) He shall handover the passport to the investigating agency.

It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.

Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. The petition stands accordingly disposed of.