Himachal Pradesh High Court
Joga Singh @ Mulakh Raj vs State Of Himachal Pradesh on 25 June, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMP(M) No. 493 of 2018
Decided on June 25, 2018
_________________________________________________________________
.
Joga Singh @ Mulakh Raj ... Petitioner
Versus
State of Himachal Pradesh Respondent
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Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 yes.
For the petitioner : Mr. Vivek Singh Attri, Advocate.
For the respondent : Mr. S.C. Sharma and Mr. Dinesh
Thakur, Addl. AG's with Mr. Amit
Kumar, DAG.
ASI Mohammed Sitar, IO, Police
Station, Una, District Una,
r Himachal Pradesh.
_________________________________________________________________
Sandeep Sharma, Judge (oral):
By way of instant petition filed under Section 439 CrPC, prayer has been made on behalf of the bail petitioner for grant of regular bail in respect of FIR No. 523/2002 dated 16.9.2002 under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, registered at Police Station, Una, District Una, Himachal Pradesh.
2. Sequel to orders dated 24.4.2018, 8.5.2018, 14.5.2018 and 11.6.2018, ASI Mohammed Sitar, Police Station, Una, District Una, Himachal Pradesh has come present with the record. Mr. Dinesh Thakur, learned Additional Advocate General has also placed on record status report, prepared on the basis of 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 26/06/2018 23:00:52 :::HCHP 2investigation carried out by the investigating agency. Record perused and returned.
3. Vide previous order dated 11.6.2018, this Court had .
summoned record of the Sessions Case No. 1 of 2008 titled State versus Pushpa Devi and others, which has also been received.
Careful perusal of record/status report reveals that on 15.9.2002, police apprehended bail petitioner alongwith other co-accused and recovered 7 bags of poppy husk. Since bail petitioner fled from the spot, police arrested other accused persons and after completing codal formalities commenced investigation. Co-accused namely Smt. Pushpa Devi and Usha Devi were found to be in possession of 20 kg of poppy husk each, whereas, accused No.3, Gajraj was found to be in possession of two bag containing 10 kg each of poppy husk. Present bail petitioner was alleged to have possessed bag containing 13 kg of poppy husk. BAIL PETITIONER was arrested by police on 21.1.2003, whereafter, he was enlarged on bail by the court below. After completion of investigation, police presented Challan in the competent Court of law, however, the fact remains that the bail petitioner after having obtained bail from the trial Court, failed to put in appearance during trial and as such he came to be declared as proclaimed offender vide order dated 30.11.2007. Co-accused as referred to herein above subsequently came to be acquitted of the charges framed against ::: Downloaded on - 26/06/2018 23:00:52 :::HCHP 3 them. Present bail petitioner was arrested on 26.12.2017 and since then, he is behind the bars.
4. Mr. Vivek Singh Attri, learned counsel representing the bail .
petitioner argued that since no notice whatsoever was ever served upon the bail petitioner after passing of order dated 23.1.2003 when he was ordered to be enlarged on bail, there was no occasion for the bail petitioner to remain present during trial. He further contended that bail petitioner, who is a poor rustic villagers having no knowledge of law, remained under impression that he is not required to remain present in the Court during trial.
5. Mr. Dinesh Thakur, learned Additional Advocate General, while refuting aforesaid submissions having been made by Mr. Vivek Singh Attri, learned counsel representing the bail petitioner contended that bail petitioner is a clever person, who after having obtained bail from the trial Court, never presented himself for investigation or thereafter during trial, as such, he does not deserve to be shown any leniency, rather he needs to be dealt with severely. Mr. Thakur, contended that it is a matter of fact that bail petitioner was declared proclaimed offender and he absconded during trial for almost fourteen years, as such, his enlargement on bail at this stage, may further hamper trial, which is almost complete. Mr. Thakur also disputed the factum with regard to non-issuance of notice by trial Court to procure presence of bail petitioner during trial.
::: Downloaded on - 26/06/2018 23:00:52 :::HCHP 46. I have heard the learned counsel for the parties and gone through the record carefully.
7. This Court solely with a view to ascertain the correctness of .
the submission having been made by the learned counsel representing the bail petitioner that after passing of order dated 23.1.2003, no notice was ever served upon the bail petitioner, summoned record of the court below. Having perused record of Sessions Case No. 1 of 2008, titled State vs. Pushpa Devi and others, there appears to be force in the arguments of Mr. Vivek Singh Attri, Advocate, that though after passing of order dated 23.1.2003, notices/non-bailable warrants were issued against bail petitioner but those remained unexecuted and finally on 30.11.2017, bail petitioner was declared proclaimed offender. Mr. Dinesh Thakur, learned Additional Advocate General, with a view to refute aforesaid contention made by Mr. Vivek Singh Attri, also invited attention of this Court to the report given by the process serving agency to demonstrate that bail petitioner was served through his wife. However, this Court having carefully perused report given on summons finds that wife of bail petitioner had informed the process server that her husband has gone to Jammu.
8. Section 64 CrPC provides as under:
"64. Service when persons summoned cannot be found. Where the person summoned cannot, by the exercise of due diligence, be found, the summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him, and the ::: Downloaded on - 26/06/2018 23:00:52 :::HCHP 5 person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate. Explanation.- A servant is not a member of the family within .
the meaning of this section."
9. Section 64 provides that where despite due diligence, the person summoned is not served with the notice, the summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him, and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt thereof on the back of the other duplicate. It is further clarified in the aforesaid Section that servant is not a member of the family.
10. Mr. Dinesh Thakur, learned Additional Advocate General was unable to dispute the factum with regard to acquittal of other accused in the trial, which was admittedly initiated on the basis of same FIR, wherein bail petitioner has also been named as one of accused. Mr. Thakur was also unable to refute the argument raised by Mr. Vivek Singh Attri, that none of prosecution witnesses, especially complainant and independent witnesses have supported the case of prosecution, rather, they have resiled from their statements.
11. Though aforesaid aspects of the matter are to be considered and decided by the trial court on the basis of material available on record but this Court taking note of the fact that bail petitioner ::: Downloaded on - 26/06/2018 23:00:52 :::HCHP 6 was not served with notice/non-bailable warrants, sees no reason to let bail petitioner incarcerate in jail for indefinite period during trial, especially when he is behind the bars for almost seven .
months. Guilt, if any, of the bail petitioner is yet to be proved in accordance with law as such, it may not be interest of justice to curtail his freedom for indefinite period.
12. 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.
3. 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 ::: Downloaded on - 26/06/2018 23:00:52 :::HCHP 7 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.
4. 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.
5. 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 ::: Downloaded on - 26/06/2018 23:00:52 :::HCHP 8 and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons."
13. 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.
14. 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.::: Downloaded on - 26/06/2018 23:00:52 :::HCHP 9
15. In view of above, bail petitioner has carved out a case for grant of bail and as such, present petition is allowed. Petitioner is ordered to be released on bail subject to furnishing bail bonds in .
the sum of Rs.50,000/- (Rs. Fifty Thousand) with one local surety in the like amount, to the satisfaction of the trial Court, 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 her.
16. 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.
17. 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.
Copy dasti.
(Sandeep Sharma) Judge June 25, 2018 (vikrant) ::: Downloaded on - 26/06/2018 23:00:52 :::HCHP