Himachal Pradesh High Court
Decided On: 25.10.2024 vs State Of Himachal Pradesh on 25 October, 2024
2024:HHC:10316 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MP (M) No.2306 of 2024 Decided on: 25.10.2024 __________________________________________________________ Shiv Kumar Bisht .....Petitioner Versus State of Himachal Pradesh ......Respondent Coram Hon'ble Mr. Justice Ranjan Sharma, Judge 1 Whether approved for reporting? For the petitioner: Mr. Ashok Sharma, Senior Advocate with Mr. Sagar Chhabra, Advocate. For the respondent: Mr. B.N. Sharma, Additional Advocate General.
Mr. Naresh Sharma, SDPO, Rampur Bushehr, District Shimla [H.P.], present in person, with records.
Mr. Chaman Negi, Advocate, for the complainant.
Ranjan Sharma, Judge [Oral] Bail petitioner, Shiv Kumar Bisht, has come up before this Court, in petition under Section 483 of Bharatiya Nagarik Suraksha Sanhita [hereinafter referred to as 'BNSS'] for grant of regular bail, originating from FIR No.107 of 2024, dated 13.10.2024, registered at Police Station, Rampur 1 Whether reporters of Local Papers may be allowed to see the judgment?
-2- 2024:HHC:10316 Bushehr, District Shimla [H.P.], under Sections
329 and 351 (2) of Bharatiya Nyaya Sanhita [hereinafter referred to as 'BNS'] and 3(1) (f) of Scheduled Castes and Scheduled Tribes [Prevention of Atrocities] Act, 1989 [hereinafter referred to as 'SC&ST Act'].
FACTUAL MATRIX:
2. Case set up by Mr. Ashok Sharma, Learned Senior Counsel, assisted by Mr. Sagar Chhabra, Learned Counsel, is that FIR allegedly registered against the bail petitioner on 13.10.2024, is just an abuse of law. It has been further averred that on 30.03.2024, bail petitioner and his brother had filed an application before Naib-Tehsildar, Sub-Tehsil Taklech, Tehsil Rampur Bushehr, District Shimla [H.P.], seeking correction in column of possession of land situated in Kuhal Patiana, Sub-Tehsil Taklech, District Shimla [H.P.], so as to avoid any dispute between them and their father's sister [bua] and other relatives to whom, father had given a portion of land from his large chunk of lands.
-3- 2024:HHC:10316 2(i). It is averred that FIR was registered with
ulterior motive, just and to put pressure on the bail petitioner and his brother to vacate the said land. It is averred that the Complainant, has filed FIR, by giving a different angle to the entire aspect.
2(ii). Bail petitioner has furnished the undertakings that he shall abide by all the terms and conditions, which may be imposed by this Court. It is averred that the bail petitioner is a law abiding citizen and can never think of violating the law in any maner.
In this background, the prayer for bail, has been made by way of the instant petition. [ PROCEEDINGS BEFORE THIS COURT:
3. Upon listing of instant application on 18.10.2024, bail petitioner, Shiv Kumar Bisht, surrendered before this Court and was enlarged on interim bail, on 18.10.2024.
3(i). Upon issuance of notice, the State Authorities have furnished the Status Report dated 25.10.2024, on Instructions of Sub-Divisional Police Officer, Rampur Bushehr, District Shimla [H.P.], which
-4- 2024:HHC:10316 is taken on record. Copy of the Status Report was furnished to Learned Senior Counsel for the petitioner and Mr. Chaman Negi, Learned Counsel, for the complainant.
At this stage and with consent of parties, the instant petition is taken up for disposal today.
STAND OF STATE AUTHORITIES:
4(i). Perusal of the Status Report dated 25.10.2024, states that FIR No.107 of 2024, dated 13.10.2024, was registered at instance of Complainant
-Jagat Singh Negi, son of late Shri Vinay Singh Negi, R/o VPO Kamru, Tehsil Sangla, District Kinnaur [HP].
Status Report indicates that complainant is owner in possession of land comprising Khasra No.2120, situated at Chak Kuhal Patiana, Sub-Tehsil Taklech, District Shimla [H.P.], but the complainant ordinarily resides at Village Kamru, Tehsil Sangla, District Kinnaur [HP] and he visits the alleged site in i.e. Kuhal Patiana, occasionally. It is averred that complainant, Jagat Singh, visited his land at Kuhal Patiana in Taklech [District Shimla] on 13.08.2024 and found
-5- 2024:HHC:10316 that about 5-6 Bighas of his land has been encroached by bail petitioner, Shiv Kumar Bisht and his brother- co-accused Vijay Singh Bisht by cultivating apple trees and by constructing a kacha dhara on said land. 4(ii). Status Report further indicates that after registration of FIR, the police swung into action, During investigation, the police summoned the complainant, Jagat Singh, on 21.10.2024 and his land was inspected in presence of witnesses. Even photography and videography on the spot was also undertaken and map was prepared. Even the statements of complainant and other witnesses were recorded under Section 180 of BNSS. Status Report further indicates that on 22.10.2024, the complainant, Jagat Singh, is alleged to have produced documents to assert his claim.
4(iii). Police Authorities have stated that on 24.10.2024, the police has forwarded a letter, to SDM, Rampur Bushehr, District Shimla [H.P.], seeking demarcation of land comprising in Khasra No.2120, which is alleged to have been encroached upon by the
-6- 2024:HHC:10316 bail petitioner, Shiv Kumar Bisht and his brother, co- accused, Vijay Singh Bisht. It is stated in Status Report that the application seeking demarcation has been forwarded by SDM concerned to Naib-Tehsildar Taklech, Tehsil Rampur Bushehr, District Shimla [H.P.], for necessary action.
In the backdrop of factual narration in Status Report, the State Authorities have admitted that the bail petitioner and his brother joined investigation on 19.10.2024 and they were duly interrogated. However, it is further stated that investigation is under way. Based on these averments, the Learned State Counsel, on Instructions of Sub- Divisional Police Officer, Rampur Bushehr, states that the bail is not being opposed, as the matter involving accusation, appears to a civil dispute inter-se the complainant and the bail petitioner and his brother-co- accused.
5. Heard Mr. Ashok Sharma, Learned Senior Counsel, assisted by Mr. Sagar Chhabra, Advocate for the bail petitioner; and Mr. B.N. Sharma, Learned
-7- 2024:HHC:10316 Additional Advocate General, for respondent-State; and Mr. Chaman Negi, Learned Counsel, for complainant.
6. Notably, the claim of the suspect-accused for pre-arrest or post-arrest bail-regular bail is to be examined/tested within the parameters prescribed of the Code of Criminal Procedure and also the broad para-meters mandated by the Hon'ble Supreme Court regulating grant of bail in Gurbaksh Singh Sibbia versus State of Punjab (1980) 2 SCC 565, Ram Govind Upadhyay versus Sudarshan Singh (2002) 3 SCC 598; Kalyan Chandra Sarkar versus Rajesh Ranjan, (2004) 7 SCC 528; Prasanta Kumar Sarkar versus Ashish Chatterjee, (2010) 14 SCC 496; reiterated in P. Chidambaram versus Directorate of Enforcement, (2019) 9 SCC 24, mandating that the bail {anticipatory or regular} is to be granted where the case is frivolous or groundless and no prima-facie or reasonable grounds exists which lead to believe or point out towards accusation; and these parameters for regular bail have been reiterated
-8- 2024:HHC:10316 in Sushila Aggarwal versus State- NCT Delhi, (2020) 5 SCC 01.
6(i). While dealing with the claim for bail, the three judges bench of Hon'ble Supreme Court, after reiterating broad parameters has held in Deepak Yadav versus State of Uttar Pradesh, (2022) 8 SCC 559, in Para-25 that the nature of the crime has a huge relevancy, while considering claim for bail. 6(ii). In Ansar Ahmad versus State of Uttar Pradesh, 2023 SCC Online SC 974, the Hon'ble Supreme Court had expanded the horizon of broad parameters which are to be taken into account, for considering the claim for regular bail or anticipatory bail as under:
"11. Mr. R. Basant, the learned Senior Counsel appearing for one of the private respondents that the Court while granting bail is not required to give detailed reasons touching the merits or de-merits of the prosecution case as any such observation made by the Court in a bail matter can unwittingly cause prejudice to the prosecution or the accused at a later stage. The settled proposition of law, in our considered
-9- 2024:HHC:10316 opinion, is that the order granting bail should reflect the judicial application of mind taking into consideration the well-known parameters including:
(i) The nature of the accusation weighing in the gravity and severity of the offence;
(ii) The severity of punishment;
(iii) The position or status of the accused, i.e. whether the accused can exercise influence on the victim and the witnesses or not;
(iv) Likelihood of accused to approach or try to approach the victims/ witnesses;
(v) Likelihood of accused absconding from proceedings;
(vi) Possibility of accused tampering with evidence;
(vii) Obstructing or attempting to
obstruct the due course of
justice;
(viii) Possibility of repetition of offence if left out on bail;
(ix) The prima facie satisfaction of the court in support of the charge including frivolity of the charge;
(x) The different and distinct facts of each case and nature of substantive and corroborative evidence.
12. We hasten to add that there can be several other relevant factors which, depending upon the peculiar facts and circumstances of a case, would be
- 10 - 2024:HHC:10316 required to be kept in mind while granting or refusing bail to an accused.
It may be difficult to illustrate all such circumstances, for there cannot be any straight jacket formula for exercising the discretionary jurisdiction vested in a Court under Sections 438 and 439 respectively of the Cr.PC, as the case may be."
6(iii). In normal parlance, the principle of law is that bail is a rule and jail is an exception. However, this Court is conscious of the fact that the power under Section 483 BNSS is an extraordinary power and the same has to be exercised sparingly. It is trite law that while considering the prayer for bail {pre-arrest bail or regular bail], prima-facie opinion is to be gathered or whether any other reasonable grounds exist pointing towards the accusation or whether the accusation is frivolous with ulterior motive of either injuring or humiliating a person or whether a person has falsely been roped in needs to be tested, in the background of self-imposed restrains or the broad parameters mandated by law as referred to above.
- 11 - 2024:HHC:10316 6(iv). This Court is also conscious of the fact
that as per mandate of law, in Criminal Appeal No.3840 of 2023, titled as Saumya Churasia versus Directorate of Enforcement, decided on 14.12.2023, while considering the prayer for bail, though a Court is not required to weigh the evidence collected by the Investigating Agency meticulously, nonetheless, the Court should keep in mind, nature of accusation, nature of evidence collected in support thereof, severity of punishment prescribed for alleged offences, character of accused, circumstances which are peculiar to accused, reasonable possibility of securing presence of accused during trial, reasonable apprehension of witnesses being tampered with and large societal interests are to be kept in mind.
In this background, while testing the claim for bail, the Court is required to form a prima-facie opinion in the context of broad-parameters, referred to above, but without delving into the evidence on merits, as it may tend to prejudice the rights of accused as well as prosecution.
- 12 - 2024:HHC:10316 ANALYSIS OF CLAIM IN INSTANT CASE:
7. In the entirety of facts and circumstances including statutory provisions and the mandate of law, this Court is of the considered view, the instant bail petition is allowed and the bail petitioner, Shiv Kumar Bisht, is entitled to be enlarged on bail, by making the interim bail orders dated 18.10.2024, absolute, for the following reasons:-
8(i). Prima facie accusation is not made out against the bail petitioner, at this stage. 8(ii). The material on record, including Status Report do not point out any reasonable grounds to believe, the accusation against the bail petitioner, at this stage.
8(iii). The Status Report, as furnished to this Court, indicates that an inter-se civil dispute alleging encroachment on land, situated in Chak Kuhal Patiana, Sub-Tehsil Taklech, Tehsil Rampur Bushehr, District Shimla [H.P.], exists between the complainant- Jagat Singh and the bail petitioner [Shiv Kumar Bisht and his brother-co-accused Vijay Singh Bisht, for
- 13 - 2024:HHC:10316 which, the State Authorities-Police started investigation, whereby, an application was made to SDM-cum-Collector, Rampur Bushehr for ordering demarcation, and this request was further sent to Naib-Tehsildar, Taklech for further action, which is pending before the said authority. Status Report narrates that prior to this, police along with complainant visited the spot, which was videographed in presence of witnesses.
Even the accusation against the bail petitioner under Sections 329 and 351 (2) of BNS and 3 (1) (f) of SC&ST Act, as to whether the bail petitioner and his brother has wrongly occupied or cultivated the land of the complainant-Jagat Singh, is a matter to be tested, examined and proved on the basis of demarcation and other parameters in accordance with the Land Revenue Act or by asserting any other right/ interests inter-se in any manner permissible in law.
Unless and until, the aforesaid facts are ascertained and proved in appropriate proceedings, this Court is of the considered view, that the prima facie accusation
- 14 - 2024:HHC:10316 is not borne out, which, at this stage, appears to be of a civil dispute inter-se the parties. 8(iv). Claim for bail has force, for the reason, that no prima facie accusation or reasonable grounds exist against the bail petitioner. The object of bail is neither punitive nor preventative. Once the material on record, as contained in the Status Report, does not suggest towards accusation, therefore, in these circumstances, the bail becomes a right. Denial of bail will certainly deprive and curtail the liberty of bail petitioner, at this stage. Moreover, bail cannot be sought to be denied so as to make an accused to taste imprisonment as a lesson, so as to give precedence to punitively by ignoring his liberty under Article 21 of the Constitution of India, when in facts of instant case, neither any prima facie accusation nor reasonable grounds exist against the bail petitioner, at this stage.
PRESUMPTION OF INNOCENCE-CLAIM FOR BAIL:
8(v). Implicating the petitioner on the basis of mere suspicion or conjectures when, the accusation
- 15 - 2024:HHC:10316 is yet to be examined, considered and proved during the trial cannot be permitted, for the reason that till the accusation is proved, the petitioner-accused is to be treated as innocent in the eyes of law. Denial of bail can neither be punitive nor preventative as per mandate of law, of the Hon'ble Supreme Court of India in Guddan alias Roop Narayan Versus State of Rajasthan, 2023 SCC OnLine SC 1242, in following terms:-
"11. In the case of Sanjay Chandra V. Central Bureau of Investigation, (2012) 1 SCC 40, while hearing a bail Application in a case of an alleged economic offence, this court held that the object of bail is neither punitive nor preventative. It was observed as under: "21. In bail applications, generally, it has been laid down from the earliest times that 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 is 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.
23. 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
- 16 - 2024:HHC:10316 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 purpose of giving him a taste of imprisonment as a lesson.
25. The provisions of CrPC confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trial or in appeal against convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, is a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognised, then it may lead to chaotic situation and would jeopardise the personal liberty of an individual.
27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."
12. Further, in the case of Sandeep Jain v. National Capital Territory of Delhi, (2000) 2 SCC 66, this Court, while hearing a bail application held that conditions for grant of bail cannot become so onerous that their existence itself is tantamount to refusal of bail. This Court held as under:
" We are unable to appreciate even the first order passed by the Metropolitan Magistrate imposing the onerous condition that an accused at the FIR stage should pay a huge sum of Rs. 2 lakhs to be set at liberty. If he had paid it is a different matter. But the fact that he was not able to pay that amount and in default thereof he is to languish in jail for more than 10 months now, is sufficient indication that he
- 17 - 2024:HHC:10316 was unable to make up the amount. Can he be detained in custody endlessly for his inability to pay the amount in the range of Rs.2 lakhs? If the cheques issued by his surety were dishonoured, the Court could perhaps have taken it as a ground to suggest to the payee of the cheques to resort to the legal remedies provided by law.
Similarly if the Court was dissatisfied with the conduct of the surety as for his failure to raise funds for honouring the cheques issued by him, the Court could have directed the appellant to substitute him with another surety. But to keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is not only hard but improper. It must be remembered that the Court has not even come to the conclusion that the allegations made in the FIR are true. That can be decided only when the trial concludes, if the case is charge-sheeted by the police."
REFORMATIVE INTENT AND CLAIM FOR BAIL:
8(vi). While dealing with claim for bail, the humanist and reformative intent and the personal liberty, being sacrosanct, under Article 21 of the Constitution of India, needs to be balanced and given due weightage as per the mandate of Hon'ble Supreme Court, in Criminal Appeal No.2787 of 2024, titled as Javed Gulam Nabi Shaikh Versus State of Maharashtra and Another, in following terms:-
"18 Criminals are not born out but made. The human potential in everyone is
- 18 - 2024:HHC:10316 good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents, juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations."
ADHERANCE TO PRINCIPLE:- BAIL IS RULE:
8(vii). Depriving the petitioner the concession of bail shall negate the principle that 'bail is a rule and jail is an exception', as outlined by the Hon'ble Supreme Court, in Manish Sisodia vs Directorate of Enforcement, SLP (Criminal) No.8781 of 2024, decided on 09.08.2024, as under :-
"49. We find that, on account of a long period of incarceration running for around 17 months and the trial even not having been commenced, the appellant has been deprived of his right to speedy trial.
50. As observed by this Court, the right to speedy trial and the right to liberty are sacrosanct rights. On denial of these rights, the trial court as well as the High Court ought to have given due weightage to this factor.
52. The Court also reproduced the observations made in Gudikanti Narasimhulu (supra), which read thus: "10. In the aforesaid context, we may
- 19 - 2024:HHC:10316 remind the trial courts and the High Courts of what came to be observed by this Court in Gudikanti Narasimhulu v. Public Prosecutor, High Court reported in (1978) 1 SCC
240. We quote:
" What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said [R v. Rose, (1898) 18 Cox]:
" I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial"
53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well- settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non- grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that "bail is rule and jail is exception".
55. As observed by this Court in the case of Gudikanti Narasimhulu (supra), the objective to keep a person in judicial custody pending trial or disposal of an appeal is to secure the attendance of the prisoner at trial.
56. As observed by this Court in the case of Gudikanti Narasimhulu (supra), the objective to keep a person in judicial
- 20 - 2024:HHC:10316 custody pending trial or disposal of an appeal is to secure the attendance of the prisoner at trial.
57. Insofar as the apprehension given by the learned ASG regarding the possibility of tampering the evidence is concerned, it is to be noted that the case largely depends on documentary evidence which is already seized by the prosecution. As such, there is no possibility of tampering with the evidence. Insofar as the concern with regard to influencing the witnesses is concerned, the said concern can be addressed by imposing stringent conditions upon the appellant."
NO APPREHENSION OF FLEEING AWAY:
8(viii). The Status Report filed by the State Authorities does not indicate any likelihood of the bail petitioner, fleeing away from the administration of justice i.e. the Investigation or the Trial. In absence of any such apprehension by the State Authorities the claim for bail, needs to be accepted. Ordered accordingly.
NO APPREHENSION OF TAMPERING WITH EVIDENCE OR WITNESSES:
8(ix). The Status Report filed by the State Authorities does not indicate any likelihood of the bail petitioner tampering with evidence or witnesses. In absence of any such material in the Status Report, the
- 21 - 2024:HHC:10316 claim for bail needs to be accepted. Ordered accordingly.
NO PAST CRIMINAL ANTECEDENTS & AGE FACTOR:
8(x). Bail petitioner has furnished an undertaking that he is a law-abiding citizen and shall not thwart the justice in any manner. Even the State Authorities have not pointed out any adversarial circumstances indicating any past-criminal antecedents of the bail petitioner. Moreover, the bail petitioner is about 66 years of age. There is a relevant consideration for acceding to the prayer for bail, in peculiar facts hereinabove.
NO APPREHENSION OF TAMPERING EVIDENCE OR WITNESSES:
8(xi). State Authorities have not expressed any apprehension of tampering of witnesses or causing inducement, threat or promise to the witnesses or the persons acquainted with the facts of the case. In absence of any such possibility, this Court is of the considered view, that prayer for enlargement of the petitioner on bail carries weight and the same is
- 22 - 2024:HHC:10316 accepted.
NO ADVERSARIAL CIRCUMSTANCES POINTED BY STATE AUTHORITIES DURING INVESTIGATION:
8(xii). State Authorities have not pointed out any adversarial circumstances, against the petitioner, that he has evaded or not joined the investigation or custodial interrogation is required. However, the Status Report asserts that the bail petitioner has participated and cooperated in investigation as and when called. In these circumstances, the claim for bail becomes a right of the present bail petitioner, in facts of this case.
CONCLUSION AND DIRECTIONS:
9. Taking into account the facts and circumstances and the mandate of law and the discussion made hereinabove, the instant petition is allowed and the claim of the bail petitioner [Shiv Kumar Bisht] is accepted; and the orders dated 18.10.2024 passed by this Court granting Interim bail are made absolute, subject to the compliance of conditions already imposed by this Court, in orders
- 23 - 2024:HHC:10316 dated 18.10.2024 in instant case, including the additional conditions imposed here-in-below:-
(i) Petitioner shall neither involve himself nor shall abet the commission of any offence hereinafter. Any involvement or abetting shall entail the withdrawal of concession in terms of this order;
(ii) Petitioner shall disclose his functional E-
Mail ID/WhatsApp number to the Learned Trial Court;
(iii) Petitioner shall not hinder the smooth flow of the investigation and shall join the investigation, as and when called, by the Investigating Agency;
(iv) Petitioner shall not jump over the bail and also shall not leave the country without prior permission of the Court;
(v) Petitioner shall not tamper with the witnesses or the evidence in any manner;
(vi) Petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or the witnesses;
(vii) Petitioner shall abide by all other conditions, as may be imposed by the Learned Trial Court, if any, in view of this order;
(viii) It is clarified that violation of any of the conditions imposed hereinabove, shall entail cancellation of bail automatically; and
(ix) State Authorities are free to move this Court for alteration/modification of this Court, in case of violation of any conditions as in (i) to (viii) supra, in the facts and circumstances so necessitates at any time herein-after.
10. It is clarified that any observations made hereinabove shall not be construed as findings either
- 24 - 2024:HHC:10316 for the purposes of investigation or trial, which shall proceed, in accordance with law, without being prejudiced by the observations.
In aforesaid terms, the petition is allowed and all pending miscellaneous application(s) shall stand disposed of.
(Ranjan Sharma) Judge October 25, 2024 [Bhardwaj]