Himachal Pradesh High Court
Ramesh Dhawan vs State Of Himachal Pradesh on 26 June, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 2729 of 2022
Date of Decision: June 26, 2023
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Ramesh Dhawan .........Petitioner
Versus
State of Himachal Pradesh .......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the petitioner: Mr. Ajay Kochhar, Senior Advocate with Mr. Vivek
Sharma and Mr. Anubhav Chopra, Advocates.
For the Respondent: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C. Verma,
Additional Advocates General with Mr. Rahul Thakur and
Mr. Ravi Chauhan, Deputy Advocates General.
ASI Dalip Singh, Police Station Baddi.
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Sandeep Sharma, J. (Oral)
By way of instant petition filed under S. 439 CrPC, prayer has been made by the petitioner Ramesh Dhawan, for grant of regular bail in case FIR No. 110, dated 7.5.2018 under S.302 and 34 IPC registered at Police Station Baddi, District Solan, Himachal Pradesh.
2. Respondent has filed status report and ASI Dalip Singh has come present with record/status report. Record perused and returned.
3. Close scrutiny of status report/record, made available to this court reveals that person namely Jagmohan, complainant (hereunder, complainant') got his ::: Downloaded on - 27/06/2023 20:34:53 :::CIS 2 statement recorded under S. 154 CrPC, alleging therein that on 6.2.2018, at 5.pm when he had gone to Omex Colony, he saw deceased Harjinder Pal getting .
construction of room done in his field. Above named complainant further alleged that at 6.00 pm, above named Harjinder Pal went to his shop i.e. Kanishk Gases and thereafter at 8. Pm, bail petitioner Ramesh Dhawan, who runs City Cable came on spot with his son co-accused Vinay Dhawan and 4-5 other persons.
Complainant alleged that firstly said accused hurled abuses at deceased Harjinder Pal and then gave merciless beatings with swords, daggers, knives etc. Complainant also alleged that when deceased fell on ground on account of injuries suffered in the incident, present bail petitioner Ramesh Dhawan, alongwith other accused ran over Harjinder Pal with his vehicle bearing registration No. HP-12H-
0389 (XUV). He further alleged that he alongwith other persons, present on spot tried to stop Ramesh and others but the accused Ramesh Dhawan succeeded in fleeing from the spot. On the basis of aforesaid complaint made by complainant named above, formal FIR as detailed herein above, came to be lodged against Ramesh Dhawan and Vinay Dhawan, who otherwise stands enlarged on bail vide order dated 5.7.2019 passed in CrMP(M) No. 1089 of 2019.
4. As per status report, present bail petitioner, who ran over vehicle over Harjinder Pal absconded but subsequently was arrested at sales tax toll barrier baddi whereas, Vinay Dhawan was arrested on the same day. Since investigation in the case is complete and nothing remains to be recovered from bail petitioner ::: Downloaded on - 27/06/2023 20:34:53 :::CIS 3 coupled with the fact that he is behind bars for more than five years, prayer has been made for grant of bail on account of inordinate delay in conclusion of trial.
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5. While fairly acknowledging the factum with regard to filing of Challan in competent court of law Mr. Rajan Kahol, learned Additional Advocate General states that keeping in view gravity of offence alleged to have been committed by the bail petitioner, he does not deserve leniency and his prayer for bail deserves outright rejection. While making this court peruse record of investigation, Mr. Kahol submits that present bail petitioner alongwith his son, Vinay not only gave merciless beatings to the deceased but also ran over his vehicle on the alleged date of incident, as such, he does not deserve any leniency. He states that since seven prosecution witnesses stand examined out of 43, prayer made on behalf of the petitioner for enlargement on bail on the ground of delay is not sustainable in the eye of law. He states that scientific evidence adduced on record clearly proves involvement of the bail petitioner in the offence punishable under S.302 IPC.. He states that since statements of material prosecution witnesses are yet to be recorded, it may not be in the interests of justice to enlarge bail petitioner on bail, who in that event may not only flee from justice but may indulge in such activities again.
6. Having heard learned counsel for the parties and perused material available on record this court finds that initially complainant while getting his statement recorded under Se. 154 CrPC, stated that deceased Harjinder Pal was given ::: Downloaded on - 27/06/2023 20:34:53 :::CIS 4 beatings with swords, daggers and knives by the bail petitioner and others but such plea of him was never corroborated by other witnesses associated by Investigating .
Agency. Since police arrived at a conclusion in preliminary enquiry that presence of co-accused Vinay Dhawan is doubtful on the spot, on the date of alleged incident, it filed an application under S.169 CrPC for discharge of co-accused Vinay Dhawan, but before such application could be decided by learned court below, complainant alongwith other person Ajmer Singh approached the police with the intention to get his supplementary statement recorded on 15.5.2018, and gave statement to the police, wherein he changed his earlier version. He stated to the police that at the time of alleged incident, swords, knives and daggers were not used by bail petitioner Ramesh Dhawan and others but maintained that on the date of alleged incident, co-accused Vinay Dhawan was present on the spot alongwith his father.
Another person namely Raghuvir also supported the afore version of complainant.
7. Taking note of the aforesaid supplementary statement of complainant and Raghuvir, police withdrew application under S. 169 CrPC as result of which, case still continues against Vinay Dhawan, co-accused.
8. Interestingly, complainant, while deposing before learned trial Court, introduced a new story by stating that on the date of alleged incident, some altercation took place inter present bail petitioner and deceased and while deceased was standing on the ramp, present bail petitioner ran over him with his vehicle, as a result of which deceased suffered multiple injuries.
::: Downloaded on - 27/06/2023 20:34:53 :::CIS 59. There appears to be merit in the contention learned counsel for the petitioner that complainant, who has been cited as eye-witness has repeatedly changed his .
versions. Initially while recoding statement under S.154 CPC, he disclosed to the police that bail petitioner alongwith his son hurled abuses and gave beatings to the deceased with swords, knives and daggers, but subsequently, while getting his supplementary statement recorded with the police, he deposed that knives, swords and daggers were not used but son of bail petitioner co-accused Vinay Dhawan was present on the spot.
10. Now, in third statement given to the court, he has introduced a new story that firstly altercation took place inter se deceased and present bail petitioner and thereafter on the signal of co-accused Vinay Dhawan, present bail petitioner ran over deceased with his vehicle. He in his statement given to the Court, alleged that after having run over vehicle on one occasion, present bail petitioner again reversed the vehicle and ran over the same over deceased.
11. If the version of witness given to court is perused juxtaposing his initial versions given to police, there are lot of contradictions and inconsistencies. Though case at hand is to be decided by learned trial Court in the totality of evidence led on record by Investigating Agency but keeping aforesaid glaring aspects of the mater coupled with the fact that there is inordinate delay in conclusion of trial, this court sees no reason to let the bail petitioner incarcerate in jail, for an indefinite period during trial.
::: Downloaded on - 27/06/2023 20:34:53 :::CIS 612. Leaving everything aside, this court finds that bail petitioner is behind bars for the more than five years, but till date, prosecution has been able to examine only .
seven witness out of 43. Since, it took about four years for the prosecution to examine seven witnesses, meaning thereby considerable time is likely to be consumed in examination of remaining prosecution witnesses.
13. Record further reveals that prior to filing present petition, petitioner had approached this court by way of CrMP(M) No. 1096 of 2020 decided on 2.11.2020, whereby this court, while permitting bail petitioner to withdraw the petition, directed learned trial Court to conclude trial, within a period of six months but despite such direction, learned trial Court has not been able to conclude the trial expeditiously.
14. Again vide order dated 1.11.2022 passed in CrMP(M) No. 2134 of 2022, this court, was compelled to direct prosecution to render prosper assistance to learned court below to conduct cross-examination of PW Jagmohan Singh, whose statement though was recorded on 16.11.2019, but he was not being cross-
examined.
15. Since there is no control, if any, of accused in progress of trial, rather he is totally dependent upon steps, if any, taken by the prosecution for early conclusion of the trial, incarceration of accused in jail for indefinite period during the trial would definitely amount to pre-trial conviction, which is totally impermissible in law.
::: Downloaded on - 27/06/2023 20:34:53 :::CIS 716. Hon'ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731, has held delay in criminal trial to be in violation of right .
guaranteed to an accused under Article 21 of the Constitution of India. Relevant para of the afore judgment reads as under:-
"11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC
616) Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569).
17. Reliance is placed upon judgment passed by Hon'ble Apex Court in Union of India v. K.A. Najeeb, Criminal Appeal No. 98 of 2021, wherein it has been held as under:
"18. It is thus clear to us that the presence of statutory restrictions like Section 43D (5) of UAPA perse does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial ::: Downloaded on - 27/06/2023 20:34:53 :::CIS 8 part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of .
constitutional right to speedy trial."
18. Reliance is also placed upon judgment passed by Hon'ble Apex Court in Prabhakar Tewari v. State of U.P. and Anr, Criminal Appeal No. 152 of 2020, wherein it has been held as under:
"2. The accused is Malkhan Singh in this appeal. He was named in the FIR by the appellant Prabhakar Tewari as one of the five persons who had intercepted the motorcycle on which the deceased victim was riding, in front of Warisganj Railway Station (Halt) on the highway. All the five accused persons, including Malkhan Singh, as per the F.I.R.
and majority of the witness statements, had fired several rounds upon the deceased victim. The statement of Rahul Tewari recorded on 15th March, 2019, Shubham Tewari recorded on 12 th April, 2019 and Mahipam Mishra recorded on 20th April 2019 giving description of the offending incident has been relied upon by the appellant. It is also submitted that there are other criminal cases pending against him.
Learned counsel for the accused- respondent no.2 has however pointed out the delay in recording the witness statements. The accused has been in custody for about seven months. In this case also, we find no error or impropriety in exercise of discretion by the High Court in granting bail to the accused Malkhan Singh. The reason why we come to this conclusion is broadly the same as in the previous appeal. This appeal is also dismissed and the order of the High Court is affirmed."::: Downloaded on - 27/06/2023 20:34:53 :::CIS 9
19. In the aforesaid judgment, Hon'ble Apex Court has held that while considering the prayer for grant of bail, Courts are expected to appreciate the .
legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.
20. In the instant case, bail petitioner is behind bars for more than 5 years and till date trial has not been completed and there are very bleak chances of conclusion of the same in near future, as such, there appears to be no justification to keep the bail petitioner behind the bars for an indefinite period, during trial, keeping in view the fact that the bail petitioner is a first offender and there is no other case registered against him, apart from the present one.
21. No doubt, in the instant case, petitioner is accused of having indulged in heinous crime having adverse impact upon the society but mere gravity of offence cannot be the sole criteria to reject the bail rather certain other factors are also required to be taken into consideration. Reliance in this regard is placed upon the judgment passed by this Court in Jeet Ram v. State of H.P., Latest HLJ 2003(HP) 23, wherein it has been held as under:-
"7. As is the case of the prosecution, the only role attributed to the accused persons is that they caught hold of the deceased and their co- accused Savitri and Bimla pelted stones at him and thereafter Bhupender gave him the fatal blow with a 'Draft'. Prima facie it is difficult to believe that when a person is caught hold of by three ::: Downloaded on - 27/06/2023 20:34:53 :::CIS 10 persons two other persons are pelting stones at him, then such person and those persons who have caught hold of him will not sustain any injury. Therefore, the version regarding pelt ing of stones and holding of the deceased is prima facie clouded by suspicion as none of the .
accused persons who are alleged to have caught hold of the deceased while co- accused Savitri and Bimla were pelting stones at the deceased did not receive any injury whatsoever and no injury caused by the pelting of stones was found on the per son of the deceased. Mere catching hold of the deceased by the accused persons may not necessarily lead to the conclusion that they haw the common object of killing the deceased as the applicability of Section 149, IPC, In the facts of the ease, is a debatable question.
8. In Thakar Singh v. State of Punjab, 1969 Cur LJ 810 (relied upon by the learned Counsel for the accused persons to substantiate his contention) wherein the case of the prosecution was that accused Niranjan Singh 10 caught hold of the deceased and fell him down and accused Thakar Singh throttled his neck, the Punjab and Haryana High Court held as under :
"........ It is not a case in which it can be legitimately r contended on behalf of the prosecution that there was any pre-planned common intention on the part of both Niranjan Singh and his father Thakar Singh in throttling the deceased. There could be no such intention on the part of Niranjan Singh even in executing his act of catching hold of the boy by the arms and throwing him down on the ground. The act of throttling by Thakar Singh followed per se and was independent of the act of throwing the boy down by Niranjan Singh. Thus, there is no community of intention in the act performed by Niranjan Singh and that executed by Thakar Singh. The two are distinct ones and one has nothing to do with the other. No intention on the part of Niranjan Singh from his act could be inferred in common with the intention of throttling by Thakar Singh, which followed later on. It is not a case in which it could be held that throwing down was committed by Niranjan Singh in furtherance of the common intention of throttling by Thakar Singh. Thus, the applicability of Section 34 of the Indian Penal Code is uncalled for. Niranjan Singh appellant could not be held vicariously liable by virtue of that Section. This is additional ground of his being entitled to acquittal."
9. In Jaspal Singh v. State of Haryana, 1986 (2) Recent CR 582 (2) wherein one of the accused caught hold of the deceased while armed with a stick but did not cause any injury to the deceased whereas his co-accused ::: Downloaded on - 27/06/2023 20:34:53 :::CIS 11 caused injuries to the deceased which resulted in his death, the Punjab and Haryana High Court granted bail to the accused who had only caught hold of the deceased while on the following premise :
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"Though the motive was with the petitioner and he caught hold of the deceased while armed with a stick, he did, not cause any injury to the deceased. Rather his co-accused did cause injuries to the deceased which resulted in his death. In this situation, applicability of Section 34 Indian Penal Code is a moot point. It would thus be apt that the petitioner gets the concession of bail."
10. In Kuldip Singh v. State of Punjab, 1994 (3) Rec Cri R 137 : (1994 Cri LJ 2201) (SC) where one of the accused inflicted the injury on the head of the injured with sharp edged weapon and the second accused gave 'Lathi' blow on his shoulder causing simple injury allegedly with the common intention of accused in an attempt to commit the murder of the injured, the Hon'ble Supreme Court held that the injury on the head of the injured was serious one and proved to be grievous, therefore, the offence under Section 307, I.P.C. is made out against Kuldip Singh who caused 11 such injury but in so far as the other co-accused is concerned, he inflicted only one blow on the shoulder with the 'Lathi' causing swelling, therefore, it could not be said that he shared the common intention along with the Kuldip Singh in attempt to commit the murder of the injured."
"12.There is no doubt that offence punishable under Section 302, I.P.C. is a grave offence for which the extreme penalty of death has been provided in law. However, the mere gravity of the offence and the severity of punishment is no ground for rejection of bail, while deciding the question of grant or refusal of the bail, other factors such as the nature of evidence, the part played by the accused in the commission of the 6f-fence and the likelihood of the accused absconding or, tampering with prosecution evidence has also to be taken into account".
22. No doubt, gravity of offence is an important factor to be taken into consideration, while considering prayer for grant of bail, but that may not be the sole criteria for rejecting prayer for grant of bail.
23. Hon'ble Apex Court and this Hon'ble Court have held in a catena of judgments that one is deemed to be innocent, till the time, his/her guilt is proved in accordance with law. In the case at hand, guilt, if any, of the bail petitioner is yet to ::: Downloaded on - 27/06/2023 20:34:53 :::CIS 12 be proved in accordance with law, as such, this court sees no reason to let the bail petitioner incarcerate in jail, for an indefinite period, especially when he is behind .
the bars for more than five years, coupled with the fact that another co-accused Vinay Dhawan, already stands enlarged on bail.
24. Apprehension expressed by of learned Additional Advocate General that in the event of the bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions.
25. 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 cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has been further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty.
26. Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held 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.
27. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the object of the bail is to secure the attendance of the ::: Downloaded on - 27/06/2023 20:34:53 :::CIS 13 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.
28. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced.
29. In view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 5,00,000/- with two local sureties in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with 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 - 27/06/2023 20:34:53 :::CIS 14
(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.
30. 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.
31. 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 application alone. The petition stands accordingly disposed of.
32. The petitioner is permitted to produce copy of the order downloaded from the High Court Website and the trial court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.
( Sandeep Sharma ), Judge June 26, 2023 (Vikrant) ::: Downloaded on - 27/06/2023 20:34:53 :::CIS