Himachal Pradesh High Court
Nikhil Malik vs State Of Himachal Pradesh on 19 August, 2019
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MPs(M) No. 1363 & 1364 of 2019 Decided on: 19th August, 2019
1. Cr.MP(M) No. 1363 of 2019:
.
Nikhil Malik ....Petitioner
Versus
State of Himachal Pradesh ...Respondent
2. Cr.MP(M) No. 1364 of 2019:
Rahul Malik ....Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1 Yes.
For the petitioners: Mr. N.S. Chandel, Sr. Advocate, with r Mr. Vinod Gupta, Advocate.
For the respondent/State: M/s. Shiv Pal Manhans and P.K. Bhatti, Additional Advocates General with Mr. Raju Ram Rahi, Deputy Advocate General.
ASI Ramesh Chand, Police Station, Dharampur, District Solan, H.P. For the complainant: Mr. Anand Shamra, Sr. Advocate, with Mr. Karan Sharma, Advocate.
______________________________________________________________________ Chander Bhusan Barowalia, Judge. (oral).
The present bail applications have been maintained by the petitioners under Section 439 of the Code of Criminal Procedure seeking their release in case FIR No. 68 of 2016, dated 27.06.2016, under Section 302, 307, 147, 148, 149 IPC and Section 25 of the Arms Act, registered at Police Station Dharampur, District Solan, H.P. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 29/09/2019 02:15:55 :::HCHP 2
2. The facts giving rise for registration of the above case against the petitioners, amongst others, can tersely be encapsulated as under:
.
On 26.06.2016 Smt. Taran Jeet Kaur (complainant) got her statement recorded under Section 154 Cr.P.C. The complainant stated that she alongwith her husband, Shri Param Jeet Singh (deceased) used to run a restaurant (dhaba) at Sanawara and the said dhaba was being looked after by her, her husband and nephew Hansdeep (injured). On 26.06.2016, when she was washing clothes, around 05:00 p.m., 10/15 persons of a tourist group were in the dhaba and they were being attended by Naresh Kumar (attendant). There arose a dispute qua the freshness of the meals and scuffle ensued. One of the persons from the tourist group went to the vehicle, brought a pistol and fired on her husband (Shri Param Jeet Singh). Shri Hansdeep was also hit with gun shot on his chest. Thereafter, all the persons fled away from the spot in their vehicle, having registration number of Uttar Pradesh. The husband of the petitioner and Shri Hansdeep were rushed to the CHC, Dharampur. The husband of the petitioner was declared dead and Shri Hansdeep was referred to PGI, Chandigarh. On the basis of the statement of the complainant, police registered a case and the investigation ensued. Postmortem examination on the corpse of the deceased was conducted. Police prepared the spot map and clicked photographs of the spot. CCTV footage was obtained and police ::: Downloaded on - 29/09/2019 02:15:55 :::HCHP 3 recovered empty cartridges, sword like weapon, having blood, pieces of carton etc. During the course of investigation, it was unearthed that the petitioners alongwith other accused persons fled away from the .
spot in vehicle, having registration No. UP14FT-3871. The petitioners was arrested on 27.06.2016 and they were medically examined. Police collected the scientific evidence for analysis. Other accused persons were also arrested. Scientific samples collected from the spot were chemically examined in Forensic Science Laboratory, Junga. CCTV footage was also examined, which shows the presence of the petitioners and other accused persons on the spot.
r During the course of investigation, it was unearthed that the petitioners alongwith other accused persons were on tour to Dharamshala and Shimla and while returning they stopped in the dhaba of the deceased. The petitioners and other accused persons were not satisfied with the food quality, so a quarrel started and petitioner Rahul Malik fired on the deceased. As per the prosecution, challan stands presented in the Court and now the prosecution witnesses are being examined. Lastly, it is prayed that the bail applications of the petitioners be dismissed, as the petitioners were involved in a serious offence and in case they are enlarged on bail, they may tamper with the prosecution evidence and may also flee from justice. The prosecution objected the petition on the ground that there exists prima facie case against the petitioners and other accused persons and there is reasonable ground that the petitioners, alongwith ::: Downloaded on - 29/09/2019 02:15:55 :::HCHP 4 other accused persons, committed the murder of the deceased, the offence of which the petitioners are accused of is grave and there is possibility that the petitioners, in case enlarged on bail, may abscond.
.
Simultaneously, the prosecution is objecting the bail applications on the premises that in case the petitioners are enlarged on bail, they may try to influence the witnesses and there is possible danger of justice being thwarted by granting bail to the petitioners.
3. I have heard the learned Senior Counsel for the petitioners, learned Deputy Advocate General for the State, learned Senior Counsel for the complainant and gone through the record, including the police report, carefully.
4. The learned Senior Counsel for the petitioners has argued that now three prosecution witnesses have examined and their depositions clearly show that the crime is not attributable to the present petitioners. He has further argued that the petitioners are innocent and they have been falsely implicated in the present case. He has specifically referred to the statements of the examined prosecution witnesses and other documents. He has argued that the petitioners are not liable to the crime, as portrayed by the prosecution and by keeping them behind the bars for an unlimited period no purpose will be served. He has further argued that one of the petitioners sustained a bullet injury in his stomach and the bullet was fired by the deceased and for medical treatment the petitioner remained admitted in PGI, ::: Downloaded on - 29/09/2019 02:15:55 :::HCHP 5 Chandigarh. The learned Senior Counsel for the petitioners has referred to Section 300 IPC and argued that no case is made out against the petitioners, as has been projected by the prosecution. He .
has taken his arguments a step ahead by arguing that there is no allegation against petitioner Rahul Malik and not even a single iota of evidence has come in the investigation against him, which even remotely connects him with the alleged offence.
5. Conversely, learned Deputy Advocate General has argued that as the petitioners are residents of Uttar Pradesh, there is possibility that in case they are enlarged on bail, they may flee from justice. He has further argued that there is ample material against the petitioners and it has come in the investigation that the petitioners alongwith other accused persons were first aggressors. He has argued that a person lost his life in the occurrence and the material, which has come on record, including the CCTV footage, clearly show that he was killed by one of the petitioners herein. He has further argued that bail applications are being filed in succession, but there is no change in the circumstances, so keeping in view the heinousness of the crime and the manner in which the same was done by the petitioners, alongwith other accused persons, the bail applications may be dismissed.
6. Learned Senior Counsel for the complainant and argued that in the present case the prosecution witnesses are being examined and till now only three witnesses have been examined. He has further ::: Downloaded on - 29/09/2019 02:15:55 :::HCHP 6 argued that at this stage it is untimely and premature to conclude from the statements of examined prosecution witnesses that the petitioners are innocent and no crime is attributable against them. He has argued .
that the learned Trial Court is yet to examine all the remaining prosecution witnesses. CCTV footage of two CCTV cameras is revealing, trustworthy and truthful evidence and now the same is only to be corroborated by the ocular evidence. He has further argued that in case the petitioners are enlarged on bail, they may tamper with the prosecution evidence by threatening or influencing the witnesses, who are yet to be examined.
r He has further argued that as there is no change in the circumstances, so the present bail applications are not maintainable and the same may be dismissed. The learned Senior Counsel, in order to draw lateral support to his arguments, has placed reliance on the following judicial pronouncements:
"1. Kalyanchandra Sarkar vs. Rajesh Ranajan @ Pappu, 2004(1) Apex Court Judgment 380 (SC);
2. Anil Kumar Tulsiyani vs. State of U.P. & Another, 2006(2) Apex Court Judge 280 (SC);
3. Chandrakesjwar Prasad vs. State of Bihar, 2016(9) SC 443; &
4. Iqbal & Another vs. State of Uttar Pradesh, 2017(6) MDSC 17."
7. In rebuttal, the learned Senior counsel for the petitioners has argued that the conduct of the deceased is clear from the fact that he had kept a sword and a revolver in his restaurant. He has further ::: Downloaded on - 29/09/2019 02:15:55 :::HCHP 7 argued that by keeping a sword and a revolver, it is clear that the deceased was a quarrelsome person. As per the learned Senior Counsel, two days prior to the incident the deceased fired a gun shot .
from his revolver on some other customer. He has argued that in case PW-3 has been won over by the accused persons, then the prosecution could have declared him hostile, but the prosecution did not do so. He has further argued that when the circumstances do not suggest that the petitioner and other accused persons committed heinous crime, then this Court is not precluded from granting bail to the petitioners.
He has argued that each day spent in detention is change in the circumstances and since the Trial is not concluded within six months, then it is a fresh ground to approach the learned Trial Court seeking bail, but he has moved the bail applications before this Court. Lastly, the learned Senior Counsel prayed that the bail applications of the petitioners may be allowed and the petitioners be enlarged on bail.
8. Section 439 Cr.P.C. gives an unfettered discretion to the High Courts or Court of Sessions to admit an accused on bail, but that discretion must be exercised judicially. The Court can always refuse bail on any of the grounds, be it possibility of tampering with the prosecution evidence by the person seeking bail, gravity and seriousness of the offence or otherwise.
9. Admittedly, the petitioners have moved bail applications in succession when the same are being dismissed. It is settled law that ::: Downloaded on - 29/09/2019 02:15:55 :::HCHP 8 the person seeking bail has to clearly demonstrate change in the circumstances, in case his earlier bail application was dismissed. In the case in hand, the learned Senior Counsel for the petitioners has .
tried to sketch out the ground for grant of bail mainly on the premise that now there is change in the circumstances. The change, as per the learned Senior Counsel is that now the learned Trial Court has recorded the testimonies of three prosecution witnesses and their testimonies create a doubt qua the veracity of the prosecution case. Be that as it may, this Court does not see any change in the circumstances and mere examination of some of the prosecution witnesses cannot be said to be a ground for change in circumstances and ultimately for grant of bail. In a catena of cases, the Hon'ble Supreme Court, as also different High Courts, culled out the principles for grant of bail.
10. In the case in hand, this Court cannot shut its eyes to gravity and seriousness of the crime, the manner in which the alleged crime was perpetrated, the fact that there is possibility that in case the petitioners are enlarged on bail, they may tamper with the prosecution evidence, as most of the prosecution witnesses are yet to be examined. This Court also finds that presently the trial is at crucial stage and there is strong possibility that in case the petitioners are enlarged on bail, they may tamper with the prosecution evidence and ::: Downloaded on - 29/09/2019 02:15:55 :::HCHP 9 they will be in a position to influence and threaten the prosecution witnesses.
11. This Court has also meticulously examined the judgments, .
as cited by the learned Senior Counsel for the complainant. As these judgments mainly deal with the settled broader principles qua grant of bail, they are not discussed in depth, however, these judgments are fully applicable to the facts of the present case.
12. The harmoniously reading of the settled law, as discussed above, viz-a-viz facts of the present case and also the material, which has come on record and without discussing the same at this stage, this Court finds that the present are not the fit cases where the judicial discretion to admit the petitioners on bail is required to be exercised in their favour. The petitions, which lack merits, deserve dismissal and are accordingly dismissed.
13. The views expressed hereinabove, are only confined to the present petitions and shall not be construed as an opinion expressed on the merits of the main case, which shall be adjudged on its own merits.
14. In view of the disposal of the main petitions, pending miscellaneous application(s), if any, shall also stand(s) disposed of.
(Chander Bhusan Barowalia)
19th August, 2019 Judge
(virender)
::: Downloaded on - 29/09/2019 02:15:55 :::HCHP
10
.
::: Downloaded on - 29/09/2019 02:15:55 :::HCHP