Himachal Pradesh High Court
Nikhil vs State Of Himachal Pradesh on 25 July, 2018
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) No. 500 of 2018 Decided on: 25.07.2018 ______________________________________________________________ .
Nikhil ....Petitioner Versus State of Himachal Pradesh ...Respondent _ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting? Yes.
______________________________________________________________ For the petitioner : Mr. R.K. Bawa, Senior Advocate r with Mr. Jeevesh Sharma, Advocate.
For the Respondent : Mr. Ashwani Sharma and Mr. P.K. Bhatti, Additional Advocate Generals.
For the complainant : Mr. Anand Sharma and Mr. Karan Sharma, Advocates.
ASI Rattan Singh, Police Post Subathu, Police Station Dharampur, District Solan, H.P. present alongwith the records.
Chander Bhusan Barowalia, Judge The present bail application, under Section 439 of the Code of Criminal Procedure, is maintained by the petitioner for releasing him on bail, in case F.I.R. No. 68 of 2016, dated 27.06.2016, under Sections 302, 307, 147, 148 and 149 of the Indian Penal Code and Section 25-54-59 of the ::: Downloaded on - 27/07/2018 23:00:57 :::HCHP 2 Arms Act, registered at Police Station Dharampur, District Solan, H.P. .
2. As per the petitioner, he was not at all involved in the offence and he, being innocent, has been falsely implicated in the present case. The petitioner has further averred that on 26.06.2016, he alongwith his family members came to Dharamshala and Shimla. At about 4:30-5:00 p.m., while en-route back to their homes, when they stopped at Urban Dhaba at Sanawara for taking refreshment, they had an altercation with the service boy and nephew of the deceased qua the quality of the food and suddenly, the deceased, with an intention to kill, fired a gun shot upon them and he also sustained injury in the said occurrence. As per the petitioner, he is young man, having newly wedded wife and as he is in judicial custody for last more than one year and nine months, he may be released on bail.
3. Police report stands filed. As per the prosecution, on 26.06.2016 complainant Taran Jeet Kaur, got her statement recorded with the Police, under Section 154 Cr.P.C. in PGI Chandigarh, wherein she has stated that her husband, Paramjeet Singh (deceased) was running a leased dhaba at Lower Sanawara, Solan and nephew of her husband, Hansdeep Singh was also looking after the work in the dhaba.
On 26.06.2016, around 5:00 p.m., a group of 10-15 people ::: Downloaded on - 27/07/2018 23:00:57 :::HCHP 3 stopped at their dhaba and ordered bread toast, maggie etc., however an altercation over the quality of food, took place .
between the complainant party and the people of the group.
During the said altercation a boy from the group fired shots from the pistol and husband of the complainant received bullet shot injuries. Thereafter, the aforesaid group ran away in a tempo traveler. The husband of the complainant was declared dead at CHC, Dharampur and Hansdeep Singh, who also sustained gun shot injuires on his chest, was referred to PGI, Chandigarh. The complainant in her complaint alleged that the people of the aforesaid group murdered her husband and appropriate action be taken against them. Accordingly, an FIR, under the aforesaid Sections was registered against the accused persons and on 27.06.2016, at 6:15 p.m. they were arrested from Parwanoo.
4. As per the prosecution, there is sufficient evidence qua involvement of the accused persons in the occurrence and it has been prayed that as the nature of the crime is heinous, the present bail application be dismissed.
5. Heard. Learned Senior Counsel appearing on behalf of the petitioner has argued that the petitioner is innocent and he also received injuries in the occurrence, as the complainant party fired upon him, qua which, a cross FIR was also their against them. He has further argued that the ::: Downloaded on - 27/07/2018 23:00:57 :::HCHP 4 other co-accused have already been released on bail and as the petitioner is a young man and is behind the bars for more .
than one year and nine months, no fruitful purpose will be served by keeping him behind the bars for an unlimited period, as such, the present bail application may be allowed and the petitioner may be released on bail. In support of his arguments, learned Senior Counsel has placed reliance upon the judgment rendered by the Hon'ble Supreme Court in Prasanta Kumar Sarkar vs. Ashis Chatterjee and another, (2010) 14 SCC 496. The relevant extract of the judgment is as under:
"9. We are of the opinion that the impugned order is clearly unsustainable. It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:
(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 - 27/07/2018 23:00:57 :::HCHP 5
Learned Senior Counsel also placed reliance upon .
the judgment rendered by the Hon'ble Supreme Court in Manoranjana Sinh alias Gupta vs. Central Bureau of Investigation (2017) 5 SCC 218. The relevant extract of the judgment is as under:
"16. 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 they 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 undertrial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted.::: Downloaded on - 27/07/2018 23:00:57 :::HCHP 6
Learned Senior Counsel further placed reliance upon the judgment rendered by the Hon'ble Supreme Court in .
Dataram Singh vs. State of Uttar Pradesh and another, (2018) SCC 22. The relevant extract of the judgment is as under:
"2. 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.
3. 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 investigation 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 of 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 436-A in the Code of Criminal Procedure, 1973"::: Downloaded on - 27/07/2018 23:00:57 :::HCHP 7
6. On the other hand, learned Additional Advocate .
General has argued that there is a direct evidence against the petitioner and if he is released on bail, he will flee from justice and also tamper with the prosecution evidence, as such, the present bail application be dismissed.
7. Mr. Anand Sharma, Advocate, for the complainant has argued that the petitioner is involved in a serious offence and the husband of the complainant has been killed by him and in case, he is released on bail, he may tamper with the prosecution evidence and advance threatenings to the prosecution witnesses. Learned counsel for the complainant, In support of his arguments placed reliance upon the judgment rendered by the Hon'ble Supreme Court in Saint Asha Ram vs. State of Rajasthan, 2017 STPL 3185 SC.
8. This Court after perusing the record carefully, finds that as per prosecution story, the petitioner is directly involved in this case. The judgment cited by the learned Senior Counsel in Prasanta Kumar Sarkar vs. Ashis Chatterjee and another's case is not applicable to the facts of the present case as in the present case taking into consideration the nature and gravity of the accusation, severity of the punishment in the event of conviction and danger of the accused absconding or fleeing, if petitioner ::: Downloaded on - 27/07/2018 23:00:57 :::HCHP 8 released on bail, no case is made out for grant of bail.
Similarly, the judgment cited by the learned Senior Counsel .
for the petitioner in Manoranjana Sinh alias Gupta vs. Central Bureau of Investigation's case is also not applicable to the facts of the present case, as at this stage, balance lies in favour of rejecting the bail because the petitioner is in a position to tamper with the prosecution evidence and there is every likelihood that he will flee from justice. As far as Dataram Singh vs. State of Uttar Pradesh and another's case is concerned, the facts of the present case are totally different, as in this case the petitioner was arrested at the time of investigation and when there are every chances of his to tamper with the prosecution evidence, it cannot be said that he will not tamper with the prosecution evidence when trial is going on. On the other hand, the judgment cited by the learned counsel for the complainant is fully applicable to the facts of the present case, as in case the petitioner is released on bail, be may advance threatens to the prosecution witnesses.
9. Accordingly, after taking into consideration the nature and gravity of the accusation, severity of the punishment in the event of conviction and danger of the accused absconding or fleeing, if he is released on bail and his likelihood to tamper with the prosecution evidence, this Court ::: Downloaded on - 27/07/2018 23:00:57 :::HCHP 9 finds that there is no ground to exercise judicial discretion in favour of the petitioner at this moment, thus the present .
petition is dismissed, being devoid of any merits.
Copy dasti.
(Chander Bhusan Barowalia)
July 25, 2018 Judge
(raman)
r to
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