Himachal Pradesh High Court
Mohinder Pal vs State Of Himachal Pradesh on 23 November, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.2582 of 2023 .
Reserved on: 08.11.2023 Date of Decision: 23.11.2023.
Mohinder Pal ...Petitioner
of
Versus
State of Himachal Pradesh
rt ...Respondent
Coram
Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr. Raman Jamalta, Legal Aid Counsel.
For the Respondent : Mr R.P. Singh, Deputy Advocate General with SI Rajinder Singh, Police Station Sadar, Dharamshala, District Kangra, H.P. Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested for the commission of offences punishable under Sections 302, 452 & 342 read with Section 34 IPC vide FIR No. 42 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 23/11/2023 20:33:04 :::CIS 2of 2012, dated 23.2.2012, at Police Station Palampur. The petitioner is innocent and he was falsely implicated at the .
instance of the brother-in-law of the deceased. The petitioner filed a bail application before the learned Additional Sessions Judge-III, Kangra at Dharamshala, which was dismissed on 3.8.2021. The petitioner is behind bars for almost five years and of there is every likelihood of delay in the conclusion of the trial.
The petitioner would abide by all the terms and conditions, rt which may be imposed by this Court. The petitioner is a law-
abiding citizen and he has no criminal history. Hence, this petition.
2. The petition is opposed by filing a status report, asserting that Om Prakash and his wife visited the house of Rattan Chand, the informant, on 15.2.2012. Brahmi Devi wife of Om Prakash told the informant that Deepu and Bhota used to quarrel with Om Prakash. Laxmi, niece of the informant told him on 23.2.2012 at about 7/7.15 AM, that somebody had locked Om Prakash in the room and killed him. The informant went to the spot along with other persons and found the dead body of Om Prakash. He found on inquiry that on 21.2.2012, at around 3-4 PM, Bhota and Deepu had given beatings to Om Prakash ::: Downloaded on - 23/11/2023 20:33:04 :::CIS 3 after bolting the door. Hari Singh was informed about the incident over telephone. Beli Ram also informed the Police about .
the incident on 23.2.2012. The Police recorded the FIR and conducted the investigation. The accused/petitioner-Bhota absconded after the incident and he was declared a proclaimed offender by the learned Magistrate on 5.6.2012. He was arrested of on 30.8.2018. Deepak Kumar, the other accused, was convicted by the learned Additional Additional Judge-III on 2.4.2014. The rt challan has been prepared against the petitioner which is pending in the Court of learned Additional Sessions Judge-II, Dharamshala and now the same has been fixed for proper orders on 20.11.2023. Therefore, it was prayed that the present petition be dismissed.
3. I have heard Mr. Raman Jamalta, learned Legal Aid Counsel for the petitioner and Mr. R.P. Singh, Deputy Advocate General for the respondent-State.
4. Mr. Raman Jamalta, learned Legal Aid Counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. The trial against the petitioner is not proceeding. The petitioner was arrested in the year 2018 and the ::: Downloaded on - 23/11/2023 20:33:04 :::CIS 4 trial has not concluded even after the lapse of five years.
Therefore, he prayed that the present petition be allowed and .
the petitioner be released on bail.
5. Mr. R.P. Singh, learned Deputy Advocate General for the respondent-State submitted that the petitioner is involved in the commission of heinous offence. He had absconded earlier of and in case of grant of bail, he would abscond again. Therefore, rt he prayed that the present petition be dismissed.
6. I have given considerable thought to the rival submissions at the bar and have gone through the record carefully.
7. The Hon'ble Supreme Court had discussed the parameters for granting the bail in Bhagwan Singh v. Dilip Kumar, 2023 SCC OnLine SC 1059 as under:-
12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;
(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail ::: Downloaded on - 23/11/2023 20:33:04 :::CIS 5 a conviction and the nature of evidence in support of the accusations;
(b) reasonable apprehensions of the witnesses .
being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.
(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be of always a prima facie satisfaction of the Court in support of the charge.
(d) Frivility of prosecution should always be considered and it is only the element of rt genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.
13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts have been explained in the following words:
"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to ::: Downloaded on - 23/11/2023 20:33:04 :::CIS 6 consider among other circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the severity .
of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in of support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] and Puran v. Rambilas rt [(2001) 6 SCC 338: 2001 SCC (Cri) 1124].)"
8. A similar view was taken in State of Haryana vs Dharamraj 2023 SCC Online 1085, wherein it was observed:
7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the relevant principles were restated thus:
'9. ... 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:::: Downloaded on - 23/11/2023 20:33:04 :::CIS 7
(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;
of
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
rt (vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.'
9. It has been specifically mentioned in the status report that the name of the petitioner was mentioned by the wife of the deceased as the person who used to quarrel with the deceased. Further, the name of the petitioner was mentioned by the witnesses. Therefore, prima facie, a case for the commission of offences punishable under Sections 452, 342, 302 read with Section 34 IPC is made out against the petitioner at this stage.
10. It was specifically stated in the status report that the petitioner absconded after the incident and he was apprehended on 30.8.2018. It was laid down by the Hon'ble Supreme Court in State of Orissa Versus Mahimanand Mishra (2018) 10 SCC 516 that ::: Downloaded on - 23/11/2023 20:33:04 :::CIS 8 while considering a bail application, the Court should also look at the possibility of the appearance of the accused to face trial.
.
When the accused had absconded and was arrested after a lookout circular was issued, he was not entitled to bail.
11. It was laid down by the Hon'ble Supreme Court in Talab Haji Hussain Versus Madhukar Purshottam Mondkar AIR of 1958 SC 376 that the primary object of the Criminal Procedure is rt to ensure a fair trial and where the progress of a trial is obstructed by the accused, the Court is justified in taking him into custody. It was observed:-
"[6] Now it is obvious that the primary object of criminal procedure is to ensure a fair trial of accused persons. Every criminal trial begins with the presumption of innocence in favour of the accused, and provisions of the Code are so framed that a criminal trial should begin with and be throughout governed by this essential presumption, but a fair trial has naturally two objects in view; it must be fair to the accused and must also be fair to the prosecution. The test of fairness in a criminal trial must be judged from this dual point of view. It is therefore of the utmost importance that, in a criminal trial, witnesses should be able to give evidence without any inducement or threat either from the prosecution or the defence. A criminal trial must never be so conducted by the prosecution as would lead to the 'conviction of an innocent person; similarly, the progress of a criminal trial must not be obstructed by the accused so as to lead to the acquittal of a really guilty offender. The acquittal of the innocent and the conviction of the guilty are the objects ::: Downloaded on - 23/11/2023 20:33:04 :::CIS 9 of a criminal trial and so there can be no possible doubt that, if any conduct on the part of an accused person is likely to obstruct a fair trial, there is an occasion for the .
exercise of the inherent power of the High Courts to secure the ends of justice. There can be no more important requirement of the ends of justice than the uninterrupted progress of a fair trial; and it is for the continuance of such a fair trial that the inherent powers of the High Courts are sought to be invoked by the prosecution in cases where it is alleged that accused of persons, either by suborning or intimidating witnesses, are obstructing the smooth progress of a fair trial, Similarly, if an accused person who is released on bail jumps bail and attempts to run to a foreign country to rt escape the trial, that again would be a case where the exercise of the inherent power would be justified in order to compel the accused to submit to a fair trial and not to escape its consequences by taking advantage of the fact that he has been released on bail and by absconding to another country. In other words, if the conduct of the accused person subsequent to his release on bail puts in jeopardy the progress of a fair trial itself and if there is no other remedy which can be effectively used against the accused person, in such a case the inherent power of the High Court can be legitimately invoked. In regard to non-
bailable offences, there is no need to invoke such power because S. 497 (5) specifically deals with such cases. The question which we have to decide in this case is whether the exercise of inherent power under S. 561-A against persons accused of bailable offences, who have been released on bail, is contrary to or inconsistent with the provisions of S. 496 of the Code of Criminal Procedure."
12. In the present case, the petitioner has obstructed the fair trial and due to his previous conduct, he will be disentitled from the concession of bail.
::: Downloaded on - 23/11/2023 20:33:04 :::CIS 1013. The submission that the trial is being delayed is not supported by the order sheets. It is not known whether the .
prosecution or the accused is at fault. As per the order passed by learned Additional Sessions Judge-III, Kangra in the bail application of the petitioner, the witnesses at Serial No. 1 to 4, 6, 8, 9, 10, 21 and 22 have been examined and the witnesses at of Serial No. 5, 7 and 8 are yet to be examined. This order clearly shows that the trial is progressing. Hence, the plea that there is rt an inordinate delay in the trial of the case is not acceptable.
Final order:
14. Keeping in view these circumstances, the petitioner is not entitled to bail, hence the present petition fails and the same is dismissed.
15. The observation made herein before shall remain confined to the disposal of the application and will have no bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 23rd November, 2023 (Chander) ::: Downloaded on - 23/11/2023 20:33:04 :::CIS