Himachal Pradesh High Court
Vijay Kumar vs State Of Himachal Pradesh on 8 February, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No. 1796 of 2018
Decided on February 8, 2019
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Vijay Kumar ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
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Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
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For the petitioner Mr. N.K. Thakur, Senior Advocate
with Mr. Divya Raj Singh,
Advocate.
For the respondent Mr. Dinesh Thakur and Mr.
r Ashwani Sharma, Additional
Advocates General.
HC Harjeet Singh No. 89, Police
Station, Amb, District Una,
Himachal Pradesh.
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Sandeep Sharma, J. (Oral)
Bail petitioner namely Vijay Kumar, who is behind the bars since 14.9.2018, has approached this court in the instant proceedings filed under S.439 CrPC, for grant of regular bail in FIR No. 202 of 2018, dated 14.9.2018, under Ss. 279, 337, 338 and 304AA IPC and Ss. 181 and 187 of the Motor Vehicles Act, registered at Police Station, Amb, District Una, Himachal Pradesh.
2. Sequel to order dated 8.1.2019, HC Harjeet Singh No. 89 has come present with the record. Mr. Dinesh Thakur, 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 08/02/2019 22:01:03 :::HCHP 2learned Additional Advocate General has also placed on record status report, prepared on the basis of investigation carried .
out by the investigating agency. Record perused and returned.
3. Close scrutiny of the record/status report reveals that on 14.9.2018, complainant, Kewal Krishan Paul, got his statement recorded under S.154 CrPC, alleging therein that on 14.9.2018, when he was on his way to Amb, District Una, Himachal Pradesh, for attending a court case, a Truck bearing registration No. HR-55M-1662, being driven by the present bail petitioner, hit a motor-cycle bearing registration No. HP-
19D-6399, as a consequence of which, two persons riding the motor-cycle, referred to herein above, suffered grievous injuries. Complainant further stated that one person namely Shiv Kumar succumbed to his injuries on the spot, whereas, another injured, Gaurav suffered multiple injuries.
Complainant further alleged that the bail petitioner did not stop at the spot and he was subsequently apprehended by the local people at a place known as Bhanjal. On the basis of aforesaid complaint, FIR detailed herein above, came to be lodged against the bail petitioner under Ss.279, 337, 338 and 304AA IPC and Ss. 181 and 187 of the Motor Vehicles Act at Police Station, Amb, District Una, Himachal Pradesh, and since then, the bail petitioner is behind the bars. After ::: Downloaded on - 08/02/2019 22:01:03 :::HCHP 3 apprehending the bail petitioner, who at the relevant time was driving the offending vehicle, bearing registration No. HR-55M-
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1662, police took him to Civil Hospital, Amb, for medical examination. The Medical Officer, found smell of alcohol in the breath of the bail petitioner and as such, measured the quantity of the alcohol by way of Alco-Sensor test. As per aforesaid test, 91.8 mg alcohol was found in the breath of the bail petitioner at the time of alleged incident. On the basis of aforesaid report given by the Medical Officer, Civil Hospital, Amb, Police deleted S.304A and incorporated S.304AA IPC.
4. Prior to approaching this court, the bail petitioner approached the learned Sessions Judge, Una, District Una, Himachal Pradesh, by way of filing Bail Application No. 409/2018, for grant of regular bail, however, the fact remains that the same was dismissed by the said court, vide judgment dated 21.11.2018, copy whereof is placed on record. Perusal of aforesaid judgment reveals that bail application filed by the bail petitioner came to be rejected on two grounds, firstly, the breath analysis test and secondly, the non-production of the driving licence. Subsequently, the bail petitioner approached this court for grant of bail. On 8.1.2019, it was informed by the law officers representing the State that the petitioner as well as owner of the truck have failed to produce the driving ::: Downloaded on - 08/02/2019 22:01:03 :::HCHP 4 licence, as such, bail petitioner does not deserve to be enlarged on bail. Accordingly, Coordinate Bench of this court adjourned .
the matter for today.
5. Mr. N.K. Thakur, learned Senior Advocate, duly assisted by Mr. Divya Raj Singh, Advocate, while referring to the fresh status report filed by the investigating agency contended that as per latest report of the blood sample sent by RFSL Dharamshala, no alcohol could be detected and as such, no case, much less case under S.304AA IPC is made out against the bail petitioner. Mr. Thakur, further contended that though the copy of driving licence, which was issued in favour of the bail petitioner in the year 2010, has been already made available to the Police, but petitioner is still ready and willing to hand over the original driving licence to the Investigating Officer during the course of proceedings before this court. Mr. N.K. Thakur, learned Senior Advocate, has made available original driving licence bearing No. HR0520106608600, issued in the name of Vijay Kumar (bail petitioner),by the Registering and Licensing Authority, Karnal, Haryana on 18.1.2010, valid upto 17.1.2025, to the Investigating Officer. Needless to say that the investigating agency shall verify the same from the records of the issuing authority. Mr. Thakur, learned Senior Advocate further contended that the Challan stands filed in ::: Downloaded on - 08/02/2019 22:01:03 :::HCHP 5 the competent Court of law and as such, no fruitful purpose shall be served by keeping the bail petitioner behind the bars .
for an indefinite period. He further contended that the there is nothing on record to suggest that the bail petitioner has been found involved in such offence earlier and, as such, he being first offender, deserves to be enlarged on bail.
6. Mr. Dinesh Thakur, learned Additional Advocate General, while fairly admitting the factum with regard to filing of Challan in the competent Court of law, contended that keeping in view the fact that a person has lost his life and the offending vehicle was being driven by the bail petitioner under the influence of liquor, bail petitioner does not deserve to be enlarged on bail. Mr. Thakur, learned Additional Advocate General, while admitting that as per report of RFSL, no alcohol was found in the blood sample of the bail petitioner, contended that the Medical Officer, Civil Hospital, Amb, after having conducted breath analyzer test, found 91.8 mg alcohol in the breath of the bail petitioner, as such, it would be premature at this stage to conclude that the bail petitioner at the time of alleged accident was not under the influence of liquor.
7. Having heard the learned counsel for the parties and perused material available on record, this court finds that though there is ample evidence collected on record by the ::: Downloaded on - 08/02/2019 22:01:03 :::HCHP 6 investigating agency to demonstrate that on the date of alleged incident, vehicle being driven by the bail petitioner hit motor .
cycle bearing registration No. HP-19D-6399, as a consequence of which, persons riding the same suffered grievous injuries and there is also no dispute that one of the injured namely Shiv Kumar, lost his life, but, as has been noticed herein above, RFSL, Dharamshala, in its report, dated 31.1.2019, has categorically concluded that no alcohol could be detected in the blood sample sent to it by the investigating agency.
8. True it is that now there are two contradictory reports given by two different authorities, but, having taken note of the fact that the investigation in the case is complete and nothing is required to be recovered from the bail petitioner, this court sees no reason to keep him behind the bars for an indefinite period during the trial. So far, another objection raised by the investigating agency that the driving licence was not supplied by the bail petitioner, is concerned, it has been already taken note herein above that the original driving licence of the bail petitioner has been handed over to the Investigating Officer in the court itself.
9. Albeit, aforesaid aspects of the matter would be considered and decided by the learned trial Court, in the totality of evidence placed before it by the investigating agency, ::: Downloaded on - 08/02/2019 22:01:03 :::HCHP 7 but, this court sees no reason to curtail the freedom of the bail petitioner, especially for the reasons stated herein above.
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10. Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual can not be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held as under:
"2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception.
Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.
3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion 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 ::: Downloaded on - 08/02/2019 22:01:03 :::HCHP 8 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.
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4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.
5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, ::: Downloaded on - 08/02/2019 22:01:03 :::HCHP 9 howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other .
problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons."
11. By now it is well settled that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon'ble Apex Court that 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. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; has been held as under:-
"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 can be 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. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody ::: Downloaded on - 08/02/2019 22:01:03 :::HCHP 10 pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In India , it would be quite contrary to the concept of personal .
liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment rbefore conviction has a substantial punitive content and it would be improper for any court to 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 propose of giving him a taste of imprisonment as a lesson."
12. Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.
::: Downloaded on - 08/02/2019 22:01:03 :::HCHP 1113. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held as under:
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"This Court in Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40, 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 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 under-trial prisoners for an indefinite ::: Downloaded on - 08/02/2019 22:01:03 :::HCHP 12 period would amount to violation of Article 21 of the Constitution was highlighted."
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14. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down the following principles to be kept in mind, while deciding petition for bail:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if r 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.
15. In view of above, bail petitioner has carved out a case for himself and as such, present petition is allowed. Bail petitioner is ordered to be enlarged on bail, subject to his furnishing bail bonds in the sum of Rs.1,00,000/- (Rs. One Lakh) with one local surety in the like amount, to the satisfaction of the Chief Judicial Magistrate concerned/trial court, besides the following conditions:
(a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;::: Downloaded on - 08/02/2019 22:01:03 :::HCHP 13
(b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(c) He shall not make any inducement, threat or .
promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and
(d) He shall not leave the territory of India without the prior permission of the Court.
(e) He shall surrender passport, if any, held by her.
16. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.
17. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this petition alone.
The petition stands accordingly disposed of.
Copy dasti.
(Sandeep Sharma) Vacation Judge February 8, 2019 (vikrant) ::: Downloaded on - 08/02/2019 22:01:03 :::HCHP