Nitesh Alias Nitin vs State Of Haryana

Sandeep Moudgil, J

Relief sought

The jurisdiction of this Court has been invoked under Section 483 of the BharatiyaNagrarik Suraksha Sanhita, 2023, praying for the grant of Regular Bail to the petitioner during pendency of the trial in the case FIR No. 400 dated 05.07.2024, registered at P.S Krishna Gate, Thanesar, Kurukshetra for the offence punishable under Sections 109, 111(3,5), 308(4),351(2),249, 3(5), 61(2) of the BNS and Section 27,29 of the Arms act.

Prosecution story setup in the present case as per the version in the FIR as under:-

‘Copy of the complaint is as under: "To, SHO Police Station Krishana Gate, Thanesar. It is submitted that 1, Jai Parkash son of Kishori Lal, am a resident of House No. 841/2, Azad Nagar, Thanesar. I have studied up to tenth class. My mobile number is 9416412562. On 04.07.2024 at about 11.31 AM, whatsapp voice call came on my above said mobile number from mobile No. 4447919609004 and I did not receive the phone call. Thereafter on 05.07.2024 at about 12.18 A.M, again a voice recording came on my mobile No. 94164-12562 from above said mobile demanding ransom of Rs. 50 lacs and threatening to kill me if I did not give the said amount. Thereafter I slept and in the morning, after waking up, I came out of the house at 6.30 A.M and saw that light fitted on the gate of our house was lying broken. Then I woke up my son Ashwani and after opening the gate, I came out and saw that four empties of cartridges were lying at different places near our gate on the concrete blocks. A fire shot mark was also found on the dickey of car No. HR07T-8500 mark RITZ of white color standing inside the gate. 1 dialed number 112 and informed the police immediately. Thereafter we checked the CCTV cameras installed at the house of our neighbor Vikas Gupta son of Suresh Kumar resident of Azad Nagar Thanesar. In the CCTV camera footage, we saw that at night time, two youths on motor cycle stop in front of our house and are seen firing in air opposite our house. Two unknown motor cyclists youths fired in air in front of our house and demanded ransom of Rs. 50 lacs by sending voice call message and in the event of not giving the said amount, have issued threats to kill. Legal action be initiated against both those unknown persons. Sd/- Jai Parkash.’

Contentions

On behalf of the petitioner

Learned counsel for the petitioner contends that the petitioner has been falsely implicated in the present case and it is a case of no injury. He further submits that nothing has been recovered from the present petitioner and no overt act has been attributed to him. It has further been contended that the petitioner was not one of the two individuals who fired the gunshots, but was allegedly assisting them from a distance. He further asserts that the co-accused namely Dinesh has already been granted the concession of regular bail by this Court vide order dated 07.04.2025 (Annexure P-2) passed in CRM-M-17826-2025. It has been contended on behalf of the petitioner that he is a man of clean antecedents as he is not involved in any other case.

On behalf of the State

On the other hand, learned State counsel has produced the custody certificate of the petitioner today in Court, which is taken on record. He seeks dismissal of the instant petition on the ground that the petitioner was seen standing at the place of occurrence and allegedly assisting the co-accused persons in the alleged crime.

Analysis

Be that as it may, considering the custody period i.e. 09 months and 19 days for which the petitioner has suffered incarceration and the facts that admittedly the case of the prosecution is that the petitioner was not one of the two individuals who fired the gunshots, but was allegedly assisting them from a distance; co-accused namely Dinesh has already been granted the concession of regular bail by this Court vide order dated 07.04.2025 (Annexure P-2) passed in CRM-M-17826-2025; no overt act has been attributed to the present petitioner; nothing has been recovered from the present petitioner; the petitioner is not a habitual offender as he is not involved in any other case, as is evident from custody certificate in addition to the fact that investigation is complete, challan stands presented to Court on 07.10.2024, charges have been framed on 25.02.2025 and out of total 18 prosecution witnesses only one witness has been examined so far, which is suffice for this Court to infer that the conclusion of trial will take long time for which the petitioner cannot be detained behind the bars for an indefinite period.

Reliance can be placed upon the judgment of the Apex Court rendered in “Dataram versus State of Uttar Pradesh and another”, 2018(2) R.C.R. (Criminal) 131, wherein it has been held that the grant of bail is a general rule and putting persons in jail or in prison or in correction home is an exception. Relevant paras of the said judgment is 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, 2017(4) RCR (Criminal) 416: 2017(5) Recent Apex Judgments (R.A.J.) 408 : (2017) 10 SCC 658 6. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tara chand Shah v. Union of India, 2017 (13) SCALE 609 going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 in which it is observed that it was held way back in Nagendra v. King-Emperor, AIR 1924 Calcutta 476 that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson, AIR 1931 Allahabad 356 wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.

However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.”

Therefore, to elucidate further, this Court is conscious of the basic and fundamental principle of law that right to speedy trial is a part of reasonable, fair and just procedure enshrined under Article 21 of the Constitution of India. This constitutional right cannot be denied to the accused as is the mandate of the Apex court in “Hussainara Khatoon and ors (IV) v. Home Secretary, State of Bihar, Patna”, (1980) 1 SCC 98.

Besides this, reference can be drawn upon that pre-conviction period of the under-trials should be as short as possible keeping in view the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

RELIEF:

In view of the discussions made hereinabove, the petitioner is hereby directed to be released on regular bail on him furnishing bail and surety bonds to the satisfaction of the trial Court/Duty Magistrate, concerned.

In the afore-said terms, the present petition is hereby allowed. However, it is made clear that anything stated hereinabove shall

not be construed as an expression of opinion on the merits of the case.