Himachal Pradesh High Court
Sanjeev Kumar vs State Of Himachal Pradesh on 17 November, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMP(M)'s No. 1362, 1363 and 1364 of 2017
Decided on November 17, 2017
.
_______________________________________________________________
1. CrMP(M) No. 1362 of 2017
Sanjeev Kumar ... Petitioner
Versus
State of Himachal Pradesh Respondent
2. CrMP(M) No. 1363 of 2017
Rakesh Thakur ... Petitioner
Versus
State of Himachal Pradesh Respondent
3. CrMP(M) No. 1364 of 2017
Rakesh Chandel ... Petitioner
Versus
State of Himachal Pradesh Respondent
_______________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 yes.
_______________________________________________________________
For the petitioners : Mr. Satyen Vaidya, Senior
Advocate with Mr.Vivek Sharma,
Advocate.
For the respondent : Mr. M.L. Chauhan, Additional
Advocate General with Mr. Rajat
Chauhan, Law officer.
HC Adarsh Kumar, No. 959, I/O
PS Theog, Ditrict Shimla in FIR
No. 126 of 2017.
SI Subhash Chand, PS Theog,
District Shimla, HP in FIR No. 130
of 2017.
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Sandeep Sharma, Judge (oral):
Since all the bail petitions arise out of same FIR, these were taken together for hearing and are being disposed of by this common judgment.
1Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 17/11/2017 23:10:09 :::HCHP 22. By way of above captioned bail petitions filed under Section 439 CrPC, prayer has been made for grant of bail in .
case FIR No. 130 of 2017, dated 24.7.2017, under Sections 302, 201, 323, 325 and 34 IPC, registered at Police Station Theog, District Shimla, Himachal Pradesh.
3. Sequel to orders dated 30.10.2017 and 7.11.2017, SI Subhash Chand, Police Station Theog, has come present with the record. Mr. M.L. Chauhan, learned 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.
4. Record reveals that on 24.7.2017, some unknown persons informed Police Station Theog that one dead body was lying near Gadhol Nala. On the basis of aforesaid information, police recovered dead body from Gadhol Nalla and thereafter brought the same to Civil Hospital, Theog, for postmortem. Medical Officer at CH Theog advised the police to take body to IGMC Shimla, for postmortem. After postmortem of the body allegedly recovered from Gadhol Nalla, a person namely Pratap Singh identified the body to be of his son namely Mohit Bekta alias Tanu alias Shishu. Subsequently, above named Pratap Singh got his statement recorded under Section 154 CrPC, alleging therein that his younger son Mohit Bekta alias Shishu had come to Theog Bazaar on 19.7.2017 at 10-11.00 am, in ::: Downloaded on - 17/11/2017 23:10:09 :::HCHP 3 connection with some work. As per complainant, lastly he talked to his son at around 3-4 pm, whereafter, a person .
namely Bhup Ram informed him during night that his son Mohit Bekta and Mahender Singh alias Mintoo, who happened to be nephew of Bhup Ram, had some quarrel near Mahog. As per complainant, on next morning, he reached Theog Bazaar, alongwith Madan, brother of Mahender, to know the whereabouts of Mohit Bekta, but all in vain. On the same day, in the evening, Mahender alias Mintoo met complainant Pratap Singh and at that time, there was plaster on his arm and his head was also covered with bandage. Said Mahender alias Mintoo revealed that on the night of 19.7.2017, a few persons gave beatings to him as well as Mohit Bekta, whereafter, Mohit Bekta was not traceable. Complainant further alleged that he alongwith Mahender and Madan made efforts till 20.7.2017, to locate Mohit Bekta. On 24.7.2017, he received a call from Police Station Theog between 1-1.30 PM that police had recovered an unidentified body, which subsequently was found to be of his son, Mohit Bekta alias Shishu. Complainant alleged that persons, who had quarrelled with his son Mohit Bekta (deceased) and Mahender on 19.7.2017, might have caused death of his son. On the basis of aforesaid statement made by Pratap Singh under Section 154 CrPC, formal FIR came to be registered against present bail petitioners, on 26.7.2017, ::: Downloaded on - 17/11/2017 23:10:09 :::HCHP 4 whereafter, bail petitioners were taken into custody and till date they are in custody.
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5. Mr. Satyen Vaidya, learned Senior Advocate representing the bail petitioners and duly assisted by Mr.Vivek Sharma, Advocate, while referring to the record/ status report, vehemently argued that no case, much less to say case under Section 302 IPC is made out against the bail petitioners, as such, they deserve to be enlarged on bail. With a view to substantiate his aforesaid argument, Mr. Vaidya, learned Senior Advocate, made this Court to travel through the statements made by Mahender Singh alias Mintoo, Madan and Rajinder Singh to the police under Section 161 CrPC, to demonstrate that none of aforesaid witnesses has uttered even a single word against the bail petitioners, suggestive of the fact that deceased Mohit Bekta alias Shishu died of injuries allegedly caused on his body by bail petitioners. While specifically referring to the statement of Mahender Singh alias Mintoo, who was also allegedly given beatings alongwith Mohit Bekta (deceased), Mr. Vaidya, learned Senior Advocate contended that after minor altercation, which took place in Theog Bazaar, deceased Mohit Bekta and Mahender chased the bail petitioner namely Rakesh Kumar, who at the relevant time was driving HRTC bus bearing registration No. HP03B-6061. Mr. Vaidya, learned Senior Advocate, further contended that it clearly emerges from the ::: Downloaded on - 17/11/2017 23:10:09 :::HCHP 5 statements given by Mahender and Madan that at the time of unfortunate incident, deceased Mohit Bekta and Mahender were .
under the influence of liquor and they chased bail petitioner Rakesh with the intention to cause injury to him. Mr. Vaidya, learned Senior Advocate, further contended that there is ample evidence adduced on record by the police suggestive of the fact that the bus being driven by bail petitioner Rakesh Thakur was followed and later on stopped by Mohit Bekta and Mahender, who subsequently suffered injuries in the incident. Lastly, Mr. Vaidya, learned Senior Advocate, while referring to the statement of Madan, who happened to be brother of victim namely Mahender, contended that immediately after verbal altercation at Theog Bazaar, bail petitioner telephonically informed Madan with regard to conduct of Mahender as well as Mohit Bekta, who were following Rakesh Thakur. Mr. Vaidya, learned Senior Advocate also invited attention of this Court to the record of the police to demonstrate that even bail petitioner informed police with regard to alleged chasing by deceased Mohit Bekta and Mahender, but since no vehicle was available with the police at the relevant time, police could not reach the spot. Mr. Vaidya further submitted that alleged incident took place on 19.7.2017, whereafter, no steps, whatsoever, were taken by Mahender alias Mintoo, who was also allegedly beaten by bail petitioner on the same day, to lodge ::: Downloaded on - 17/11/2017 23:10:09 :::HCHP 6 complaint, if any, against the bail petitioners till 24.7.2017, when on the basis of statement given by father of deceased .
Mohit Bekta, formal FIR came to be registered. Learned Senior Advocate contended that true it is that in the unfortunate incident, one person has lost his life and other suffered injuries but there is no evidence available on record suggestive of the fact that injuries were caused by the bail petitioner, rather, there is material on record suggestive of the fact that Mohit Bekta was under the influence of liquor and he ran away from the spot and as such, there is every possibility of his falling from the cliff. Learned Senior Advocate further contended that bail petitioner namely Rakesh Thakur is a government employee and there is no likelihood of his absconding from trial as such, he deserves to be released on bail. Learned Senior Advocate further contended that even other bail petitioners are local residents of the area and there is no case registered against them in the past and they shall be available for trial as and when required.
6. Mr. M.L. Chauhan, learned Additional Advocate General duly assisted by Mr. Rajat Chauhan, Law Officer, while opposing aforesaid prayer for grant of bail having been made by the learned counsel representing the bail petitioners, contended that keeping in view the gravity of the offence, allegedly committed by the bail petitioners, they are not entitled to be ::: Downloaded on - 17/11/2017 23:10:09 :::HCHP 7 released on bail. Mr. Chauhan, while referring to the statements adduced on record by the investigating agency, vehemently .
argued that there is ample evidence available on record suggestive of the fact that deceased Mohit Bekta died of injuries allegedly caused by the bail petitioners. Mr. Chauhan, further submitted that in case bail petitioner are enlarged on bail, they may tamper with the prosecution evidence. Lastly Mr. Chauhan, learned Additional Advocate General contended that it is clear from the medical evidence adduced on record by the prosecution that deceased died due to injuries allegedly caused with some blunt weapon and as such, story put forth by learned Senior Advocate representing the bail petitioners, that deceased Mohit Bekta died because of fall, is not tenable as such, bail petitioners are not entitled for bail.
7. I have heard the learned counsel for the parties and gone through the record carefully.
8. It clearly emerges from the record that the minor altercation took place between the petitioner and victim on 19.7.2017, whereafter, deceased Mohit Bekta alias Shishu and Mahender alias Mintoo chased HRTC bus going towards Patinal being driven by the bail petitioner namely Rakesh Thakur. It also emerges from the record that at the relevant time, both the victims, Mohit Bekta alias Shishu and Mahender alias Mintoo were under the influence of liquor. It has specifically come in ::: Downloaded on - 17/11/2017 23:10:09 :::HCHP 8 the statement of Mahender that they had consumed one bottle of liquor at Janog Ghat before the alleged incident and .
thereafter they both decided to teach Rakesh Thakur a lesson.
It clearly emerges from the statements of Mahender and Madan, who was repeatedly informed by the bail petitioner Rakesh Thakur with regard to conduct of Mohit Bekta and Mahender over the telephone, that both the victims with a view to teach lesson to Rakesh Kumar, chased him and went upto Shori Kainchi, where they were allegedly attacked by 5-6 persons.
Mahender, in his statement given to the police on 26.7.2017, categorically stated that he as well as Mohit Bekta was attacked by 5-6 persons, whereafter Mohit Bekta ran away. This Court finds nothing in the statement of Mahender, from where it can be inferred that he as well as Mohit Bekta was inflicted injuries, if any, by Rakesh Kumar and other bail petitioners, because there is no mention as such, of the names of the bail petitioners.
9. After having perused the record, this Court finds force in the arguments of Mr. Satyen Vaidya, learned Senior Advocate that conduct of the victim namely Mahender is not above the board because, there is nothing on record of the case suggestive of the fact that after alleged incident on 19.7.2017, he made efforts to lodge complaint, if any, with Police Station, Theog, with regard to alleged incident, rather, this Court finds from the ::: Downloaded on - 17/11/2017 23:10:09 :::HCHP 9 record that on 20.7.2017, bail petitioner Rakesh Thakur, lodged a report at Police Station Theog against Mahender Singh and .
deceased Mohit Bekta. Similarly, it is not understood that once factum with regard to quarrel, if any, of bail petitioners with Mohit Bekta and Mahender had come to the notice of complainant Pratap Singh, on 20.7.2017 as admitted by him, what prevented him from lodging report at Police Station Theog.
It is only on 24.7.2017, when dead body of Mohit Bekta was recovered by police on the basis of information given by some unknown person, that Pratap Singh came forward and claimed deceased to be his son. When Mahender Singh, who was also given beatings on the same day alongwith deceased was in the know of the things that deceased Mohit Bekta died because of alleged beatings given by the bail petitioners, there is no explanation available on record that why he as well as other interested persons, kept mum till 24.7.2017, when for the first time, formal FIR came to be registered against the bail petitioners.
10. True it is, that as per medical evidence adduced on record by the investigating agency, it emerges that Mohit Bekta alias Shishu died because of injury allegedly caused with some blunt weapon, but, at this stage, it may not be sufficient to conclude that injury was actually caused by the bail petitioners, especially when there is ample evidence available on record ::: Downloaded on - 17/11/2017 23:10:09 :::HCHP 10 suggestive of the fact that at the time of alleged incident, deceased Mohit Bekta had run away from the place and he was .
under the influence of liquor. Though aforesaid aspect of the matter, as has been discussed herein above, is to be considered and decided by the trial Court on the basis of evidence adduced on record by the prosecution but this Court after having perused record sees no reason to keep the bail petitioners in custody for indefinite period.
11. Investigation in the case is complete and Challan stands filed in the competent Court of law. Guilt of the accused, if any, is yet to be proved by the prosecution by leading cogent and convincing evidence and as such taking note of material available on record, this Court sees no reason to allow the petitioners to incarcerate in jail during trial.
12. By now it is well settled that gravity alone cannot be 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:-
::: Downloaded on - 17/11/2017 23:10:09 :::HCHP 11"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 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 before 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."
13. Law with regard to grant of bail is now well settled. The Apex Court in Siddharam Satlingappa Mhetre versus State of Maharashtra and others, (2011) 1 SCC 694, while relying upon its decision rendered by its Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565, laid down the following parameters for grant of bail:-
::: Downloaded on - 17/11/2017 23:10:09 :::HCHP 12"111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible .
guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour.
112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) 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;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood to repeat similar or the other offences.
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.::: Downloaded on - 17/11/2017 23:10:09 :::HCHP 13
(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in .
the case. 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;
(viii) 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;
(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) 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." (Emphasis supplied)
14. Hon'ble Apex Court, in Sundeep Kumar Bafna versus State of Maharashtra (2014)16 SCC 623, has held as under:-
"8. Some poignant particulars of Section 437 CrPC may be pinpointed. First, whilst Section 497(1) of the old Code alluded to an accused being "brought before a Court", the present provision postulates the accused being "brought before a Court other than the High Court or a Court of Session" in respect of the commission of any non-bailable offence. As observed in Gurcharan Singh vs State( Delhi Admn) (1978) 1 SCC 118, there is no provision in the CrPC dealing with the production of an accused before the Court of Session or the High Court. But it must also be immediately noted that no provision categorically ::: Downloaded on - 17/11/2017 23:10:09 :::HCHP 14 prohibits the production of an accused before either of these Courts. The Legislature could have easily enunciated, by use of exclusionary or exclusive terminology, that the superior Courts of Sessions .
and High Court are bereft of this jurisdiction or if they were so empowered under the Old Code now stood denuded thereof. Our understanding is in conformity with Gurcharan Singh, as perforce it must. The scheme of the CrPC plainly provides that bail will not be extended to a person accused of the commission of a non-bailable offence punishable with death or imprisonment for life, unless it is apparent to such a Court that it is incredible or beyond the realm of reasonable doubt that the accused is guilty. The enquiry of the Magistrate placed in this position would be akin to what is envisaged in State of Haryana vs Bhajan Lal, 1992 (Supp)1 SCC 335, that is, the alleged complicity of the accused should, on the factual matrix then presented or prevailing, lead to the overwhelming, incontrovertible and clear conclusion of his innocence. CrPC severely curtails the powers of the Magistrate while leaving that of the Court of Session and the High Court untouched and unfettered. It appears to us that this is the only logical conclusion that can be arrived at on a conjoint consideration of Sections 437 and 439 of the CrPC. Obviously, in order to complete the picture so far as concerns the powers and limitations thereto of the Court of Session and the High Court, Section 439 would have to be carefully considered. And when this is done, it will at once be evident that the CrPC has placed an embargo against granting relief to an accused, (couched by us in the negative), if he is not in custody. It seems to us that any persisting ambivalence or doubt stands dispelled by the proviso to this Section, which mandates only that the Public Prosecutor should be put on notice. We have not found any provision in the CrPC or elsewhere, nor have any been brought to our ken, curtailing the power of either of the superior Courts to entertain and decide pleas for bail. Furthermore, it is incongruent that in the face of the Magistrate being virtually disempowered to grant bail in the event of detention or arrest without warrant of any person accused of or suspected of the commission of any non-bailable offence punishable by death or imprisonment for life, no Court is enabled to extend ::: Downloaded on - 17/11/2017 23:10:09 :::HCHP 15 him succour. Like the science of physics, law also abhors the existence of a vacuum, as is adequately adumbrated by the common law maxim, viz. 'where there is a right there is a remedy'. The universal .
right of personal liberty emblazened by Article 21 of our Constitution, being fundamental to the very existence of not only to a citizen of India but to every person, cannot be trifled with merely on a presumptive plane. We should also keep in perspective the fact that Parliament has carried out amendments to this pandect comprising Sections 437 to 439, and, therefore, predicates on the well established principles of interpretation of statutes that what is not plainly evident from their reading, was never intended to be incorporated into law. Some salient features of these provisions are that whilst Section 437 contemplates that a person has to be accused or suspect of a non-bailable offence and consequently arrested or detained without warrant, Section 439 empowers the Session Court or High Court to grant bail if such a person is in custody. The difference of language manifests the sublime differentiation in the two provisions, and, therefore, there is no justification in giving the word 'custody' the same or closely similar meaning and content as arrest or detention. Furthermore, while Section 437 severally curtails the power of the Magistrate to grant bail in context of the commission of non-bailable offences punishable with death or imprisonment for life, the two higher Courts have only the procedural requirement of giving notice of the Bail application to the Public Prosecutor, which requirement is also ignorable if circumstances so demand. The regimes regulating the powers of the Magistrate on the one hand and the two superior Courts are decidedly and intentionally not identical, but vitally and drastically dissimilar. Indeed, the only complicity that can be contemplated is the conundrum of 'Committal of cases to the Court of Session' because of a possible hiatus created by the CrPC."
15. 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 ::: Downloaded on - 17/11/2017 23:10:09 :::HCHP 16 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.
16. 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 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.::: Downloaded on - 17/11/2017 23:10:09 :::HCHP 17
17. In view of the aforesaid discussion, petitioners have carved out a case for grant of bail. Moreover, Challan has been .
filed in the competent Court of law and bail petitioners are local residents of the area and bail petitioner Rakesh Thakur is a government employee, as such, there is no possibility of petitioners fleeing justice in case enlarged on bail.
18. In view of above, present petitions are allowed and the petitioners are ordered to be enlarged on bail in the aforementioned FIR, subject to furnishing personal bonds in the sum of Rs.50,000/- each with one local surety in the like amount to the satisfaction of learned Judicial Magistrate 1st Class, Theog, with following conditions:
(a) They shall make themselves 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;
(b) They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(c) They 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) They shall not leave the territory of India without the prior permission of the Court.::: Downloaded on - 17/11/2017 23:10:09 :::HCHP 18
19. It is clarified that if the petitioners misuse the liberty or violates any of the conditions imposed upon them, the .
investigating agency shall be free to move this Court for cancellation of the bail.
20. 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 present petitions alone.
The petitions stand accordingly disposed of.
Copy dasti.
(Sandeep Sharma)
r Judge
November 17, 2017
(vikrant)
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