Jagdish vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner, invoking Section 439 of the Code of Criminal Procedure, has approached this Court for grant of bail in case FIR No.27 of 2017, dated 7.2.2017, registered under Sections 452, 307, 504, 201 of the Indian Penal Code and Section 25 of the Arms Act, in Police Station Theog, District Shimla, Himachal Pradesh.

Status Report stands filed. Record was also made available.

Prosecution case, in brief, is that on 7.2.2017 complainant Bala Nand submitted a complaint under Section 154 Cr.PC in Police Station Theog, stating that his younger daughter, after solemnizing her marriage according to her liking two weeks ago, came to parental house along with his son-in-law and after having snacks, they went to his brother’s house situated at some distance. At about 4 pm, when his son-in-law, Vipin (brother of his son-in-law) and his daughters Reeta and Meenakshi were coming back and reached near his house, petitioner having gun in his hand, asked Reeta from behind in loud voice to stop with threat to kill her. Whereupon, his daughters, son-in-law and his wife rushed inside the house and when his daughter Reeta was closing the door, petitioner opened fire causing injury in the head of complainant, in back and waist of Reeta and neck and chest of his wife Savitri, and also injuring Reeta seriously. On hearing sound of gunshot, complainant’s brother Matha Ram, Prakash and Pradhan Susheela Devi came on the spot but by that time petitioner Jagdish Chand fled from spot, after pelting stones on roof of house of complainant with threat that he will kill them all one-by-one. Injured were taken to hospital for treatment.

On the basis of aforesaid complaint, FIR was registered and investigation started.

Petitioner Jagdish Chand was searched in the village and other places, but he was not traceable anywhere despite inquiring his villagers and other relatives. Family of petitioner had also expressed ignorance about whereabouts of petitioner Jagdish Chand.

As petitioner was not traceable, proceedings under Section 82 of the Code of Criminal Procedure (for short ‘Cr.P.C.’) were initiated against him and he was declared as proclaimed offender and challan was prepared under Section 299 Cr.P.C., and submitted in the Court of Additional Chief Judicial Magistrate, Theog, District Shimla, Himachal Pradesh, on 29.5.2019.

During pendency of aforesaid proceedings, petitioner filed an application under Section 438 Cr.P.C., bearing Cr.MP(M) No.2099 of 2021, seeking anticipatory bail, which was dismissed on 30.10.2021.

Petitioner also filed a petition CRMMO No.615 of 2021, under Section 482 Cr.P.C., seeking interim protection against arrest, being a proclaimed offender, with liberty to join criminal proceedings in the trial Court in accordance with law.

The said petition was dismissed by this Court on 4.5.2022.

Petitioner surrendered before the Additional Chief Judicial Magistrate, Theog, District Shimla, Himachal Pradesh, on 13.5.2022, and was remanded to police custody from 13. 5.2022 to 15.5.2022 and, thereafter, was sent to judicial custody and till date petitioner is in judicial custody.

It is contended on behalf of petitioner that he is fatherless child and is only son of his mother and is sole bread earner in his family, serving as Sales Executive in Delhi since 16. 8.2016 in a firm namely Apurvaroy and Associates situated in E-13A, UGF, Back Side, Bengali Colony, Mahavir Enclave South West Delhi and he was serving in the firm since a date prior to the date of incident and thereafter also, and he was not aware about registration of aforesaid FIR and that he is a law abiding citizen but he has never been asked to join the investigation nor has been interrogated. He was never summoned by police nor has he received any notice by any means of communication. Further that, petitioner is having good credentials and has no antecedents of commission of any other offence.

It is further case of the petitioner that the moment registration of FIR and pendency of proceedings came in the knowledge of the petitioner, he immediately approached the Court seeking protection against his arrest being proclaimed offender with permission to join criminal proceedings in the trial Court, in accordance with law.

Learned Additional Advocate General has submitted that petitioner is an accused under Section 307 IPC wherein victims have received gunshot injuries and thus hurt has been caused to victims by an act of the petitioner committed with intention to kill and, therefore, he may be sentenced to imprisonment for life also and, thus, he is not entitled for bail under Section 439 Cr.PC and his conduct dis-entitles him from seeking bail and, therefore, prayer for dismissal of the petition has been made.

Proceedings under Section 82 Cr.P.C., declaring the petitioner proclaimed offender, are stated to have been withdrawn by the Magistrate for surrender and appearance of the petitioner in the Court. Thereafter, case of the petitioner has been committed to the Sessions Court, Shimla, on 22. 6.2022, by the Additional Chief Judicial Magistrate, Theog.

It has been submitted that petitioner is permanent resident of the area and he is ready to furnish bail bonds to the satisfaction of the Court and abide by any condition that may be imposed by the Court at the time of enlarging him on bail to assure his presence during trial.

It has further been submitted that petitioner is the only bread earner of the family is not involved in any other criminal case either prior to incident or after the incident and, therefore, he deserves to be enlarged on bail as ‘bail is rule and jail is exception’ in case of undertrial accused persons.

Without commenting upon merits of rival contentions of the parties, considering the material placed before me and also parameters and factors necessary to be considered at the time of adjudication of bail application, I am of the opinion that, at this stage, petitioner may be enlarged on bail.

Accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail, at this stage, subject to his furnishing personal bond in the sum of `1,00,000/- with one surety in the like amount to the satisfaction of the trial Court, and upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to assure presence of petitioner/accused at the time of trial:

(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required, as per law;

(ii) that the petitioner shall 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/her from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;

(v) that the petitioner shall not misuse his liberty in any manner;

(vi) that the petitioner shall not jump over the bail;

(vii) that the petitioner shall keep on informing about the change in address, landline number and/or mobile number, if any, for his availability to Police and/or during trial;

(viii) the petitioner shall not leave India without permission of the Court.

It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice. It shall be open for the trial Court to impose any other condition, as deemed necessary, upon the petitioner, independent of prayer of prosecution.

In case the petitioner violates any conditions imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.

Learned trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.

Observations made in this petition hereinbefore shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.

The parties are permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order, however, passing of order may be verified from the High Court website or otherwise.

Petition stands disposed of in the aforesaid terms.