Himachal Pradesh High Court
Crmpm No.1453/202 vs State Of H.P on 6 January, 2021
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CRMPM No.1453, 1454, 1455, 1512, 1712 and 1934 of 2020 Reserved on : 22.12.2020 Date of Decision : January 6, 2021 .
1. CRMPM No.1453/2020 Mohammad Farhan s/o Mohammad Shahid Ansari ....Petitioner Versus State of H.P. ....Respondent.
2. CRMPM No.1454/2020 Mohammad Rehan son of Abdul Hakim ....Petitioner Versus State of H.P. ....Respondent.
3. CRMPM No.1455/2020 Muzammil Hussain ....Petitioner Versus State of H.P. ....Respondent.
4. CRMPM No.1512/2020 Mohammad Faik ....Petitioner Versus State of H.P. ....Respondent.
5. CRMPM No.1712/2020 Mohammad Kaif ....Petitioner
Versus
State of H.P. ....Respondent.
6. CRMPM No.1934/2020
Mohammad Zaheer ....Petitioner
Versus
State of H.P. ....Respondent.
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Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
.
Whether approved for reporting? Yes.
For the Petitioners : Mr. Gautam Sood, Advocate, in CRMPs(M) No.1453,1454,1455 & 1512 of 2020, through Video Conferencing.
Mr. Vipin Pandit, Advocate, in CRMPs(M) No.1712 & 1934 of 2020, through Video Conferencing.
For the respondent- : Mr. Raju Ram Rahi, Deputy Advocate State General, through Video Conferencing.
Vivek Singh Thakur, Judge Petitioners, herein, are in judicial lock-up in case FIR No.7 of 2020 dated 21.1.2020, under Sections 302, 147, 149 of the Indian Penal Code ('IPC' for short), registered in Police Station Parwanoo, District Solan, Himachal Pradesh.
They have approached this Court, under Section 439 of the Code of Criminal Procedure ('Cr.P.C.' for short), seeking regular bail in the matter.
2. In status report, filed on behalf of respondent-
State, statement of complainant Rajan Kumar Singh has been reiterated, on the basis of which FIR was registered against the petitioners.
3. According to status report, on 21.1.2020, an information was received from ESI Hospital, Parwanoo, in Police Station Parwanoo that a person injured in a quarrel has ::: Downloaded on - 06/01/2021 20:16:45 :::HCHP CRMPM No.1453,1454,1455,1512,1712 and 1934 of 2020 ...3...
been brought to the hospital for treatment, whereupon HC Vinod Kumar alongwith others had rushed to the hospital, .
where statement of complainant Rajan Kumar Singh was recorded under Section 154 Cr.P.C., wherein he had stated that on that day, i.e. 20.12.2020, at about 11 p.m., when he was sitting in his vehicle at Sector-6 Parwanoo, near Negi Petrol Pump, he had received a call on his mobile phone from Raju, who was friend of crane owner Pushap Behl, requesting him to accompany Madan Lal in the crane, loaded with a vehicle, upto Delhi. Complainant had agreed for that and had come near the crane whereon vehicle of Delhi bearing registration No.DL-6CM-4200 was loaded an crane driver Madan Lal was standing near the crane and a white coloured taxi and 5-6 young men standing around the taxi, were also there and the taxi driver was demanding fare, which was paid by one of those young men. Thereafter, the taxi driver left the place. Immediately thereafter, the man, who had paid the fare to the taxi driver, had started asking Madan Lal to drop them at Delhi immediately at that time, whereupon complainant had enquired Madan Lal about the status of fuel in the crane and Madan Lal had replied that fuel tank was to be filled. Thereafter, complainant Madan Lal and a young ::: Downloaded on - 06/01/2021 20:16:45 :::HCHP CRMPM No.1453,1454,1455,1512,1712 and 1934 of 2020 ...4...
man of Delhi vehicle boarded the crane and other persons sat in the vehicle loaded on the crane and crane was taken to .
Negi Petrol Pump and fuelled for `2000/- paid by the occupants of Delhi vehicle and then they started towards TTR to proceed to Delhi, but suddenly it started raining heavily and upon this complainant Rajan Kumar Singh had parked the crane at a distance of 35-40 metres from the Petrol Pump on the right side of the road. On asking by young man, sitting in the crane, for reason to stop, Madan Lal had told that neither the wipers nor one of the head lights of the crane were working and there was some defect in the crane. It was further told by the deceased that he will take them to Delhi next morning but the young men did not accept that and had started scuffling and arguing with deceased Madan Lal in the crane itself, whereupon Madan Lal had telephonically informed owner of crane Pushap Behl that there was a defect in the crane and that the occupants of the car had been forcing him to move for Delhi and arguing and beating him, whereupon the crane owner had asked Madan Lal to lock the crane and to sleep in any other vehicle with further assurance that he had been coming on the spot, whereupon complainant Rajan Kumar Singh and Madan Lal got down from the crane ::: Downloaded on - 06/01/2021 20:16:45 :::HCHP CRMPM No.1453,1454,1455,1512,1712 and 1934 of 2020 ...5...
and the persons from the Delhi Vehicle had also deboarded the crane and car and started beating Madan Lal by saying .
that in case he did not move for Delhi at once then they would throw him from the road in gorge, whereas Madan Lal had asked them to talk with owner of the crane who was coming there. Upon this, petitioners picked up Madan Lal and threw him in the gorge and had tried to overpower complainant also narrated the incident by saying that he was also to be thrown in the gorge, whereupon complainant ran towards the Petrol Pump and had to persons deputed there and simultaneously he had also informed crane owner Pushap Behl about the incident. Thereafter, crane owner had arrived at the Petrol Pump in his own vehicle, accompanied by Tanuj Behl and Pankaj Kumar, and complainant had also joined him and when they reached on the spot, petitioners had already left the place. Thereafter, complainant Rajan Kumar Singh, Tarun Behl, Pankaj Kumar and crane owner Pushap behl had gone to the gorge in search of Madan Lal where Madan Lal was found lying injured, from where Madan Lal was taken to ESI Hospital, Parwanoo, whereupon information was sent to Police Station Parwanoo, which led to recording of statement of complainant Rajan Kumar Singh, under Section 154 Cr.P.C, ::: Downloaded on - 06/01/2021 20:16:45 :::HCHP CRMPM No.1453,1454,1455,1512,1712 and 1934 of 2020 ...6...
on the basis of which FIR No.7 of 2020, dated 21.1.2020, under Sections 307, 147 & 149 IPC was registered.
.
4. Injured Madan Lal (now deceased) was referred for treatment from ESI Hospital Parwanoo to PGI Chandigarh, where he was declared brought dead and after his death case under Section 307 IPC was converted into Section 302 IPC.
5. Petitioners were arrested by the police party on 23.1.2020 from Delhi and on 25.1.2020, they were identified by complainant Rajan Kumar Singh in Identification Parade conducted in District Jail Solan, in presence of Executive Magistrate/Tehsildar.
6. It is case of prosecution that one of the petitioners had also called the police, threatening to kill deceased Madan Lal by throwing him in the gorge on his refusal to take them to Delhi immediately at that time. Conversation of that call was recorded by the police. CD thereof has also been played in the Court by the Police Officer present at the time of producing the record.
7. According to Status Report, voice samples of Mohammad Faik, Mohammad Farhan and Muzammil Hussain have been kept safe.
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8. During investigation, DVDs of CCTV footage have also been taken in possession by the police wherein it is .
visible that at about 10.05 pm crane loaded with a car had arrived at Petrol Pump for filling fuel and in that footage petitioners, complainant and deceased are also visible and further that in the CCTV footage, at 11 pm, complainant Rajan Kumar Singh can be seen running towards and inside the Petrol Pump.
9. Learned counsel for the petitioner submit that deceased Madan Lal was highly intoxicated as in report received from Forensic Science Laboratory (FSL) quantity of ethyl alcohol in his blood was found to be 130.78 mg% and petitioners had not thrown him in the gorge but he himself, under influence of liquor, had fallen in the gorge and, thus, petitioners are not responsible for the injuries received by Madan Lal and/or his death. It is also submitted that there is no past inimical history of the petitioners and one of them is only 19 years old and, therefore, considering the entire facts and circumstances, petitioners deserve to be enlarged on bail.
It is further submitted that earlier case was registered under Section 307 IPC but it has been converted into Section 302 IPC lateron by fabrication of accusation for committing murder of ::: Downloaded on - 06/01/2021 20:16:45 :::HCHP CRMPM No.1453,1454,1455,1512,1712 and 1934 of 2020 ...8...
Madan Lal and that the petitioners are suffering incarceration since last about one year for the false accusation. Learned .
counsel have further submitted that even if, for argument sake, it is presumed, but not admitted, that deceased Madan Lal was thrown by the petitioners in the gorge, then also petitioners were not having intention to kill and, therefore, ingredient for charging the petitioners under Section 302 IPC is missing.
10. Learned counsel for the petitioners further submit that prosecution is completely silent about intoxication of deceased which, in fact, is real cause of his death, as he had fallen down himself being highly intoxicated.
11. Mr. Gautam Sood, learned counsel for petitioner Mohammad Farhan (CRMPM No.1453/2020) has taken an additional ground for enlargement of said petitioner on bail, for medical reasons. He has further submitted that the said petitioner is still under treatment and has undergone MRI test and, therefore, for treatment, he deserves to be enlarged on bail.
12. Learned counsel for the petitioners, relying upon judgment of the Supreme Court in The State of Rajasthan v.
Balchand, reported in AIR 1977 SC 2447, have canvassed that ::: Downloaded on - 06/01/2021 20:16:45 :::HCHP CRMPM No.1453,1454,1455,1512,1712 and 1934 of 2020 ...9...
the basic rule is bail but not jail, except where there are circumstances suggestive of fleeing from justice or thwarting .
the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the Court.
13. Learned counsel for the petitioners have referred to Gudikanti Narasimhulu & others v. Public Prosecutor, High Court of Andhra Pradesh, reported in (1978) 1 SCC 240, wherein it is observed that the significance and sweep of Article 21 of the Constitution of India make the deprivation of liberty a matter of grave concern and permissible only when the law authorizing it is reasonable and even-handed and geared to the goals of community good and State necessity spelt out in Article 19, Court must deal with contrary factors to answer the test of reasonableness, subject to the need for securing the presence of the bail applicant, and that public justice is central to whole scheme of bail law and where fleeing justice must be forbidden, there punitive harshness should also be minimized.
14. Learned counsel for the petitioners have also relied upon Sanjay Chandra . Central Bureau of Investigation, reported in (2012) 1 SCC 40, wherein in a case it has been ::: Downloaded on - 06/01/2021 20:16:45 :::HCHP CRMPM No.1453,1454,1455,1512,1712 and 1934 of 2020 ...10...
observed that where there is delay in trial, bail should be granted to the accused and right to bail is not to be denied .
merely because sentiments of community are against the accused as primary purposes of bail in criminal cases are to relieve the accused of imprisonment to relieve the State of burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that accused will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.
Further that when the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution of India is violated.
15. Relying upon pronouncement of the Supreme Court in Dataram Singh v. State of Uttar Pradesh & another, (2018) 3 SCC 22, it has been canvassed that a fundamental postulate of criminal jurisprudence is the presumption of innocence, unless a reverse onus has been placed on the accused with regard to some specific offences and the grant of bail is a general rule and putting a person in jail or in a prison or in correction home is an exception.
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16. Reliance has also been placed on State of Orissa v.
Mahimananda Mishra, (2018) 10 SCC 516; and P. Chidambaram .
v. Central Bureau of Investigation, AIR 2019 SC 5272.
17. Learned Deputy Advocate General, in response to the plea of the petitioners, has submitted that the plea of the petitioners that the case has been fabricated to implicate the petitioners is wrong as evident from the call recording of conversation between one of the accused and Police Control Room wherein petitioners had threatened to kill deceased Madan Lal by throwing him in gorge and CCTV footage of Petrol Pump is also substantiating the prosecution story and, therefore, plea taken on behalf of the petitioners that they have been falsely implicated in the case is not of worth. It has further been submitted that initially FIR was registered under Section 307 IPC as victim was alive at that time and it was rightly converted into Section 302 IPC after his death. He has also submitted that so far as intention to kill or knowledge of death by throwing the deceased in the gorge is concerned, the same is very much apparent in the talks of petitioners with Police Control room wherein they have expressed their intention to kill the deceased by throwing him.
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18. This Court in State of Sandeep v. State of Himachal Pradesh, reported in 2019(1) Shim.LC 263, has enumerated .
the principles evolved in various pronouncements of the Supreme Court (Para-13) and the factors to be kept in mind at the time of consideration of bail applications (Para-14), which are as under:
Principles (Para-13)
1. Grant of bail is general rule and putting a person in jail or in a prison or in correction home during trial is an exception and presumption of innocence, i.e. person is believed to be innocent until found guilty is fundamental postulate of criminal jurisprudence.
But, these principles are not applicable in cases where there is reverse onus and/or statutory presumption with regard to commission of offence. Such cases are to be dealt with differently keeping in view statutory presumption and reverse onus provided under the relevant statute. (See Dataram Singh versus State of Uttar Pradesh and another, (2018) 3 SCC 22, para 1)
2. While making a general statement of law that the accused is innocent, till proved guilty, the statutory provisions of relevant Act, like Section 29 of the POCSO Act, have to be taken into consideration which provides for presumption as to commission of any offence under Sections 3, 5, 7 and 9 of the Act.
(See State of Bihar versus Rajballav Prasad alias Rajballav Prasad Yadav alias Rajballabh Yadav, (2017) 2 SCC 178, para 22)
3. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the Court. The Court has only to opine as to whether there is prima facie case against the accused. The Court must not undertake meticulous examination of the evidence collected by the police and comment upon the same. Such assessment of ::: Downloaded on - 06/01/2021 20:16:45 :::HCHP CRMPM No.1453,1454,1455,1512,1712 and 1934 of 2020 ...13...
evidence and premature comments are likely to deprive the accused of a fair trial. (See Kanwar Singh Meena versus State of Rajasthan and .
another, (2012) 12 SCC 180)
4. A bail application is not to be entertained on the basis of certain observations made in a different context. There has to be application of mind and appreciation of the factual score and understanding of the pronouncements in the field. (See Virupakshappa Gouda and another versus State of Karnataka and another, (2017) 5 SCC 406, para 14)
5. It has also to be kept in mind that for the purpose of granting bail, the legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt. (See Virupakshappa Gouda and another versus State of Karnataka and another, (2017) 5 SCC 406, para 16; CBI versus Vijay Sai Reddy, (2013) 7 SCC 452)
6. The Courts are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bedrock of the constitutional right and accentuated further on human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world.
People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilised society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be paralysed and immobilised. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. [The] society by its ::: Downloaded on - 06/01/2021 20:16:45 :::HCHP CRMPM No.1453,1454,1455,1512,1712 and 1934 of 2020 ...14...
collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to .
the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability from its members, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, when an individual behaves in a disharmonious manner ushering in the disorderly things which the society disapproves, the legal consequences are bound to follow. At that stage, the court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or caprice. It has to be guided by the established parameters of law. (See Neeru Yadav versus State of U.P., (2014) 6 SCC 508, para 16; Rakesh Ranjan Yadav versus CBI, (2007) 1 SCC 70, para 16; Masroor versus State of U.P., (2009) 14 SCC 286, para 15; Ash Mohammad versus Shiv Raj Singh alias Lalla Babu and another, (2012) 9 SCC 446, paras 10 & 25; Chandrakeshwar Prasad alias Chandu Babu versus State of Bihar and another, (2016) 9 SCC 443 paras 10, 11)
7. Detailed examination of evidence and elaborate documentation of merits of the case are to be avoided. (See Puran versus Rambilas and another, (2001) 6 SCC 338, para 8; Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC 528: (SCC pp. 535-36, para 11); Vinod Bhandari versus State of Madhya Pradesh, (2016) 15 SCC 389, para 13; Lt. Col.
Prasad Shrikant Purohit versus State of Maharashtra, (2018) 11 SCC 458, para 2.) Consideration of details of the evidence is not a relevant consideration. While it is necessary to consider the prima facie case, an exhaustive exploration of the merits of the case should be avoided by refraining from considering the merits of material/evidence collected by the prosecution. (See Anil Kumar Yadav versus State (NCT of Delhi) and another, (2018) 12 SCC 129, para 15; and Criminal Appeal No. 1175 of 2018, titled The State ::: Downloaded on - 06/01/2021 20:16:45 :::HCHP CRMPM No.1453,1454,1455,1512,1712 and 1934 of 2020 ...15...
of Orissa versus Mahimananda Mishra, decided on 18th September, 2018) .
8. It is not necessary to go into the correctness or otherwise of the allegations made against the accused as this is a subject matter to be dealt with by the trial Judge. (See Dataram Singh versus State of Uttar Pradesh and another, (2018) 3 SCC 22, para 16)
9. Where prima facie involvement of the accused is apparent, material contradictions in the charge sheet are required to be tested at the time of trial and not at the time of consideration of grant of bail. (See Lt. Col. Prasad Shrikant Purohit versus State of Maharashtra, (2018) 11 SCC 458, para 28)
10. Probability or improbability of the prosecution version has to be judged based on the material available to the court at the time when bail is considered and not on the basis of discrepancies. (See Anil Kumar Yadav versus State (NCT of Delhi) and another, (2018) 12 SCC 129, para 21)
11. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course and reasons for grant of bail in cases involving serious offences should be given. (See Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC 528: (SCC pp. 535-36, para 11); Dipak Shubhashchandra Mehta versus Central Bureau of Investigation and another, (2012) 4 SCC 134, para 32; Vinod Bhandari versus State of Madhya Pradesh, (2016) 15 SCC 389, para13; Lt. Col. Prasad Shrikant Purohit versus State of Maharashtra, (2018) 11 SCC 458, para 29)
12. At the time of assigning reasons in order to grant/refuse bail, there should not be discussion of merits and demerits of the evidence. (See State of Bihar versus Rajballav Prasad alias Rajballav Prasad Yadav alias Rajballabh Yadav, (2017) 2 SCC 178, para 15)
13. Giving reasons is different from discussing evidence/merits and demerits. (See Puran versus ::: Downloaded on - 06/01/2021 20:16:45 :::HCHP CRMPM No.1453,1454,1455,1512,1712 and 1934 of 2020 ...16...
Rambilas and another, (2001) 6 SCC 338, para 8; State of Bihar versus Rajballav Prasad alias Rajballav Prasad Yadav alias Rajballabh Yadav, .
(2017) 2 SCC 178, para 15)
14. Under Section 439 CrPC, the Sessions Court and the High Court has concurrent jurisdiction to grant bail. Therefore, an application filed before the High Court under Section 439 CPC, after rejection of an application filed before Sessions Court under the said Section, is definitely a successive application and is not a revision or appeal against rejection of bail application by the Sessions Court.
15. An accused has a right to make successive applications for grant of bail, the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications. (See Lt. Col. Prasad Shrikant Purohit versus State of Maharashtra, (2018) 11 SCC 458, para 30)
16. The period of incarceration by itself would not entitle the accused to be enlarged on bail. (See Anil Kumar Yadav versus State (NCT of Delhi) and another, (2018) 12 SCC 129, para 24; Gobarbhai Naranbhai Singala versus State of Gujarat (2008) 3 SCC 775, para 22 and Ram Govind Upadhyay versus Sudarshan Singh, (2002) 3 SCC 598, para 9)
17. Filing of charge sheet establishes that after due investigation the investigating agency, having found materials, has placed the charge-sheet for trial of the accused persons. (See Virupakshappa Gouda and another versus State of Karnataka and another, (2017) 5 SCC 406, para 12) Factors (Para-14)
1. Satisfaction of the Court in support of the charge as to whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
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2. Nature and gravity of the accusation/ charge;
.
3. Seriousness of the offence/crime and severity of the punishment in the event of conviction;
4. Nature and character of supportive evidence;
5. Character, conduct, behaviour, means, position and standing of the accused;
6. The Courts must evaluate the entire available material against the accused very carefully;
circumstances which are peculiar to the accused and the Court must also clearly comprehend the exact role of the accused in the case;
7. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
8. Position and status of accused with reference to the victim and witnesses to assess the impact that release of accused may make on the prosecution witnesses and reasonable apprehension of the witnesses being influenced or tampered with or apprehension of threat to the complainant/ witnesses and possibility of obstructing the course of justice;
9. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
10. Likelihood and possibility of the accused's likelihood to repeat similar or the other offences;
11. A reasonable possibility of the presence of the accused not being secured at the trial and danger of the accused absconding or fleeing from justice;
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12. Impact of grant of bail on the society and danger, of course, of justice being thwarted by grant of bail affecting the larger interest of the public or the .
State;
13. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
14. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
15. Whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
16. Frivolity in prosecution should always be considered and it is only the element of 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 an order of bail;
17. No doubt, this list is not exhaustive. There are no hard and fast rules regarding grant or refusal of bail, each case has to be considered on its own merits. The matter always calls for judicious exercise of discretion by the Court.
(See - Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118; Gurbaksh Singh Sibbia versus State of Punjab, (1980) 2 SCC 565; Prahlad Singh Bhati v. State (NCT of Delhi) (2001) 4 SCC 280; Puran v. Rambilas (2001) 6 SCC 338; Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598; Chaman Lal versus State of U.P. and another, (2004) 7 SCC 525; Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC 528, para 11); Jayendra Saraswathi Swamigal v. State of T.N., (2005) 2 SCC 13, para 16); State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, para ::: Downloaded on - 06/01/2021 20:16:45 :::HCHP CRMPM No.1453,1454,1455,1512,1712 and 1934 of 2020 ...19...
18; Prashanta Kumar Sarkar versus Ashis Chatterjee and another, (2010) 14 SCC 496; Siddharam Satlingappa Mhetre versus State of .
Maharashtra and others, (2011) 1 SCC 694; Prakash Kadam versus Ramprasad Vishwanath Gupta, (2011) 6 SCC 189; Kanwar Singh Meena versus State of Rajasthan and another, (2012) 12 SCC 180; Anil Kumar Yadav versus State (NCT of Delhi) and another, (2018) 12 SCC 129; The State of Orissa versus Mahimananda Mishra, (2019) 10 SCC 516".
19. In Balchand's case, the Apex Court has not only stated that basic rule is bail not jail but has also clarified that the gravity of the offence and heinousness of the crime involved must weigh with Courts at the time of considering the question of bail or jail.
20. In Gudikanti's case, petitioners had been acquitted in the trial Court but their acquittal had been set aside in the High Court and in those circumstances question of granting bail to the petitioners was under consideration of the Court and in that case petitioners had already suffered imprisonment for around a year and at conclusion of trial they had been acquitted and during trial as well as pendency of appeal in the Court they were on bail. Therefore, in the given facts and circumstances of the case this judgment is not applicable in the present case.
21. In Sanjay Chandra's case, the offence involved was an economic offence and it has also been observed therein ::: Downloaded on - 06/01/2021 20:16:45 :::HCHP CRMPM No.1453,1454,1455,1512,1712 and 1934 of 2020 ...20...
that the grant or refusal of bail lies within the discretion of the Court and it is regulated, to a large extent, by the facts and .
circumstances of each particular case. Not only this, the factors and principles, referred by this Court in Sandeep's case supra, have also been reproduced by the Supreme Court, by referring various pronouncements and most of them have also been taken into consideration in Sandeep's case.
22. In Dataram's case also, it has been observed that exercise of judicial discretion of the judge, considering a case for grant or denial of bail, has been circumscribed by a large number of decisions rendered by the Supreme Court and by every High Court in the country. Almost all such decisions have been taken into consideration, as referred supra, which postulates that it is not verdict of the Supreme Court that bail is to be granted in each and every case, irrespective of nature of offence and ignoring heinousness of crime committed by the accused.
23. Pronouncement of Supreme Court in Mahimananda Mishra's case has already been taken into consideration in Sandeep's case and it is apt to record here that in that case order of the High Court, granting bail to the accused, was ::: Downloaded on - 06/01/2021 20:16:45 :::HCHP CRMPM No.1453,1454,1455,1512,1712 and 1934 of 2020 ...21...
reversed and accused therein was ordered to be taken in custody.
.
24. The principles evolved and facts to be taken into consideration at the time of considering bail application, reiterated in Chidambaram's case, on the basis of previous pronouncements of the Supreme Court, have already been taken into consideration in Sandeep's case and therein also, it has been observed that nature and heinousness of offence and the quality of evidence as well as social impact are also relevant factors to be considered at the time of granting or refusing bail.
25. In response to plea taken in favour of Mohammad Faik, regarding his ailment, information from Superintendent of Model Central Jail, Nahan, based on the information of Medical Officer, Model Central Jail, Nahan, has been placed on record, wherein it is stated that Mohammad Faik is suffering from seizure disorder and is under treatment from Neuro-
Surgery Department of Indira Gandhi Medical College & Hospital, Shimla (IGMC) and on 17.3.2020 he was sent to IGMC for MRI of brain and on 11.8.2020 for follow-up and was not admitted there. MRI report and other treatment record have also been placed on record, which indicate that MRI of ::: Downloaded on - 06/01/2021 20:16:45 :::HCHP CRMPM No.1453,1454,1455,1512,1712 and 1934 of 2020 ...22...
brain of petitioner Mohammad Faik was also conducted in Delhi on 15.12.2014 and now it has been conducted in IGMC .
and nothing has been suggested by the Medical Expert so as to construe that in Jail disease of the petitioner has aggravated and/or there is no treatment available for his disease in the Jail or he is not being provided medial aid/ treatment as required for curing his ailment. Facts and circumstances of the case and material on record before me is not sufficient to consider the case of petitioner Mohammad Faik for his release on bail on medical ground.
26. Learned counsel for the petitioners have submitted that petitioners are ready to furnish local surety and they also undertake to abide by any condition imposed by the Court in case they are enlarged on bail.
27. Without commenting on the merits of the material placed before me, I am of the considered opinion that there is sufficient material on record to construe prima facie involvement of petitioners in commission of offence and it is not a case where ex-facie no case is made out for implicating the petitioners in commission of murder of deceased Madan Lal. Though evidence is to be assessed and evaluated by the trial Court during trial, however, keeping in view the nature ::: Downloaded on - 06/01/2021 20:16:45 :::HCHP CRMPM No.1453,1454,1455,1512,1712 and 1934 of 2020 ...23...
and gravity of the offence and heinousness of the crime and also the manner in which offence has been alleged to have .
been committed, I find that at this stage petitioners, except petitioner Muzammil Hussain son of Akthar Hussain (CRMPM No.1455/2020), are not entitled for bail.
28. Hence, the petitions qua all the petitioners, except Muzammil Hussain son of Akthar Hussain (CRMPM No.1455/2020), are dismissed.
29. So far as petitioner Muzammil Hussain son of Akthar Hussain (CRMPM No.1455/2020) is concerned, he is 19 years old and though has attained majority but is still in his teens and, thus, to avoid adverse impact on his mind and giving him a chance to introspect and reform, I am of the opinion that he may be enlarged on bail at this stage.
30. Accordingly, petitioner Muzammil Hussain son of Akthar Hussain (CRMPM No.1455/2020) is ordered to be released on bail on his furnishing personal bond in the sum of `50,000/- with two sureties each in the like amount, one of which, as undertaken by him, should be a local surety, to the satisfaction of the trial Court, within two weeks from today, and also subject to the following conditions:
(i) That petitioner-Muzammil Hussain son of Akthar Hussain (CRMPM No.1455/2020) shall ::: Downloaded on - 06/01/2021 20:16:45 :::HCHP CRMPM No.1453,1454,1455,1512,1712 and 1934 of 2020 ...24...
make himself available to the police or any other Investigating Agency or Court in the present case as and when required;
.
(ii) that he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;
(iii) that he shall not obstruct the smooth progress of the investigation/trial;
(iv) that he shall not commit the offence similar to
the offence to which he is accused or
r suspected;
(v) that he shall not misuse his liberty in any
manner;
(vi) that he shall not jump over the bail;
(vii) that he shall keep on informing about the change in address, landline number and/or mobile number, if any, for his availability to Police and/or during trial;
(viii) he shall not leave India without permission of the Court.
31. It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice. It shall also be open for the trial Court to impose any other condition, as deemed necessary, upon the petitioner, independent of prayer of prosecution.
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32. In case the petitioner violates any conditions imposed upon him, his bail shall be liable to be cancelled. In .
such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.
33. Learned trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.
34. Observations made in this petition hereinbefore shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.
35. The petitioner is permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order, however, he may verify the order from the High Court website or otherwise.
The petition stands disposed of in the aforesaid terms.
Copy dasti.
( Vivek Singh Thakur )
January 6, 2021(sd) Judge.
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