Sanjeev Kumar vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner namely Sanjeev Kumar, who is behind the bars since 22.2.2021, has approached this Court in the instant proceedings filed under

Section 439 of Cr.PC., for grant of regular bail in case FIR No. 13 of 2021 dated 18.2.2021, under Sections 341, 323, 325, 504 and 506 IPC and

Section 3(2) (va) of SC& ST Act, registered at P.S. Rohru, District Shimla, H.P.

Record/status filed by the respondent-State in terms of order dated 25.2.2021, reveals that on 18.2.2021, complainant namely Teju Ram got his

statement recorded under Section 154 Cr.PC at PS Rohru, alleging therein that for the last one week, he alongwith person namely Vikram had been

doing work of digging and cutting of apple orchard of the bail petitioner-Sanjeev alias Saju, who on 17.2.2021, at 4:30 pm gave him money to bring

liquor and meat. Complainant alleged that he after having purchased liquor and meat from Dhara, reached in the orchard of the petitioner, whereafter

they alongwith petitioner and Vikram consumed the same. Complainant alleged that while going back to their house, they informed the bail petitioner

that from tomorrow, they will be doing work in some other orchard, but bail petitioner gave them beatings and extended threats, as a consequence of

which, they suffered multiple injuries on their persons. On the basis of aforesaid information, police initially lodged FIR under Sections 341, 323, 325,

504 and 506 IPC, but since subsequently, on 22.2.2021, complainant while getting his statement recorded 161 CrPC, alleged that bail petitioner besides

calling him by name also maltreated him on account of his being from Scheduled Caste and as such, in the aforesaid background, police incorporated

provisions of SC& ST Act in the FIR as detailed herein above and took the bail petitioner into custody.

Perusal of status report reveals that police got the complainant medically examined from Civil Hospital Rohru, where medical officer opined all

injuries allegedly suffered by the complainant to be simple in nature, whereas injuries suffered by Vikram i.e. another injured person were opined to be

grievous and as such, case under Section 325 came to be registered against the bail petitioner. Otherwise, perusal of status report reveals that

investigation in the case is complete and nothing remains to be recovered from the bail petitioner and as such, prayer has been made on behalf bail

petitioner to enlarge him on bail during the pendency of the trial.

Mr. Arvind Sharma, learned Additional Advocate General, while fairly acknowledging factum with regard to completion of investigation contends

that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of offence alleged to have been committed by the

bail petitioner, coupled with the fact that one of the victim i.e. Vikram has suffered grievous injuries, application for grant of bail deserves to be

rejected outrightly.

Having heard learned counsel for the parties and perused material available on record, this Court finds that on the date of alleged incident, some

scuffle took place inter-se petitioner and victim-complainant namely Teju Ram and Vikram, as a consequence of which,, they suffered injuries. Injuries

allegedly suffered by the complainant Teju Ram have been opined to be simple in nature. Though complainant has claimed that he as well as Vikram

were given beatings by the bail petitioner for no reasons, but as per own statement, he alongwith person namely Vikram had consumed liquor and

meat brought by them on the askance of the present bail petitioner. Though complainant has claimed that the bail petitioner got infuriated for the

reason that he refused to work in his orchard, but having taken note of the proximity inter-se bail petitioner and the complainant, reason/motive

assigned for the alleged quarrel inter-se bail petitioner and the injured does not appear to be plausible. Similarly, there is no material available on record

suggestive of the fact that on the date of alleged incident, bail petitioner while giving beatings to the complainant also called him by names/caste. Since

investigation in the case is complete and nothing remains to be recovered from the bail petitioner, this Court finds no reason to let the bail petitioner

incarcerate in jail for an indefinite period during trial. No material worth the name has been led on record suggestive of the fact that in the event of bail

petitioner’s being enlarged on bail, he may again cause harm to the victims or flee from justice, rather taking note of the fact that bail petitioner is

a local resident of the area and he is first offender, prayer made on his behalf for grant of bail deserves to be allowed.

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 aspects of the matter coupled with the fact that nothing remains to be recovered

from the bail petitioner, there appears to be no justification to let the bail petitioner incarcerate in jail for an indefinite period during trial. Hon’ble

Apex Court as well as this Court in catena of cases have repeatedly held that one is deemed to be innocent till the time, guilt of his/her is not proved in

accordance with law. In the case at hand, guilt if any of the bail petitioner is yet to be established on record by the Investigating Agency by leading

cogent and convincing evidence and as such, his freedom cannot be curtailed for an indefinite period during trial. Apprehension expressed by the

learned Additional Advocate General that in the event of petitioner’s being enlarged on bail, he may flee from justice, can be best met by putting

the bail petitioner to stringent conditions as has been fairly stated by the learned counsel for the petitioner.

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.â€​

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.â€​

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. 25,000/- each with one local surety in the like amount to the satisfaction of Special Court, Shimla, 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.

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.

Authenticated copy.