Kuldeep Singh Alias Monu vs State Of Himachal Pradesh

Sandeep Sharma, J

By way of present petition filed under S.439 CrPC, prayer has been made on behalf of the bail petitioner, who is behind the bars since June, 2018,

for grant of regular bail in FIR No. 157 dated 29.5.2018 under Ss. 302, 457, 380, 120B and 34 IPC registered at Police Station Haroli, District Una,

Himachal Pradesh.

Status report filed in terms of order dated 7.8.2020, reveals that on 29.5.2018, complainant, Smt. Surindera Devi got her statement recorded under

S.154 CrPC alleging therein that on 28.5.2018, she alongwith her family had gone to Jawala Ji temple and on 29.5.2018, at 6 am, Debo Devi informed

her that her brother-in-law, Achhar Singh was lying in a pool of blood in her court yard. Complainant further disclosed that at 12.30 pm, she reached

her village but by that time, Debo Devi had taken Achhar Singh to her house. She also alleged that at the spot of alleged occurrence, two iron rods

were lying and her trunk, wherein she had kept Rs.50,000/- was also stolen. In the aforesaid background, police registered FIR against unknown

persons and commenced investigation. During investigation, Police found involvement of the bail petitioner in the alleged offence alongwith two other

accused namely Sukhvinder Singh and Sharda Devi. Accused Sharda Devi stands already enlarged on bail, whereas, bail petitioner alongwith other

co-accused is behind the bars since June, 2018. Prior to this, bail petitioner had approached court of learned Additional Sessions Judge (II) Una,

Himachal Pradesh by way of filing bail application but same was dismissed on the ground that statements of material prosecution witnesses were yet

to be recorded and in the event of being enlarged on bail, bail petitioner may temper with evidence or dissuade the witnesses from deposing truth to

the Court.

Learned Additional Advocate General, while fairly admitting factum with regard to filing of Challan in the competent Court of law, contends that

since only two prosecution witnesses remain to be examined, prayer having been made on behalf of the bail petitioner for grant of bail, may not be

accepted at this stage. Learned Additional Advocate General further contends that otherwise also, keeping in view the gravity of offence alleged to

have been committed by bail petitioner, he does not deserve any leniency rather the bail petitioner needs to be dealt with severely as such, petition may

be rejected outrightly.

Having heard learned counsel for the parties and perused the status report, this Court finds that the bail petitioner is behind bars since June, 2018

and the statements of material prosecution witnesses stand already recoded. As per own admission of learned Additional Advocate General, only two

prosecution witnesses, who are official witnesses remain to be examined. Though, learned Additional Advocate General made a serious attempt to

persuade this Court to agree with his contention that in the event of petitioner being enlarged on bail, he may temper with prosecution evidence or win

over the witnesses but, as has been taken note herein above, statements of material prosecution witnesses already stand recorded, as such, prayer for

grant of bail made on behalf of the petitioner cannot be rejected on this ground.

Undoubtedly, offence alleged to have been committed by the petitioner is serious in nature but, guilt, if any, of the bail petitioner is yet to be

determined in the totality of the evidence collected on record by the prosecution, as such, it would not be fair to curtail the freedom of the bail

petitioner for an indefinite period during trial. Otherwise also, petitioner would suffer the consequences in case he is held guilty by the court on the

basis of evidence led on record by the investigating agency.

Petitioner is behind the bars for more than two years now and at this juncture, no recovery is to be effected from him. Though, statements of two

prosecution witnesses remain to be recorded but this court also cannot lose sight of the fact that trial courts have yet not started normal functioning on

account of spread of Covid-19 pandemic and there is every likelihood of trial being delayed, as such, there is no justification to let the bail petitioner

incarcerate in jail for an indefinite period during trial. Apprehension expressed by learned Deputy Advocate General that in the event of bail petitioner

being enlarged on bail, he may flee from justice, can be best met by putting him to stringent conditions. Otherwise also Hon'ble Apex Court and this

court have held in catena of judgments, that till the time, guilt of a person is proved, he is deemed to be innocent.

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 held

that freedom of an individual can not be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has further held by the

Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held 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.â€​

By now it is well settled that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the

court while exercising its discretion. It has been repeatedly held by the Hon’ble Apex Court that 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. The Hon’ble Apex Court in Sanjay

Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; has been 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.â€​

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 also, normal rule is of

bail and not jail. Apart from above, 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.

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

“This Court in Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40 a,lso 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.â€​

The Apex Court in Prasanta Kumar Sarkar versus 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 above, bail petitioner has carved out a case for himself. Consequently, present petition is allowed. Bail petitioner is ordered to be

enlarged on bail subject to furnishing bail bonds in the sum of Rs.2,00,000/- with one local surety in the like amount, to the satisfaction of the

Investigating Officer/learned Magistrate available at the station, besides the 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 surrender passport, if any, held by him.

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 petition alone.

The petition stands accordingly disposed of.