Himachal Pradesh High Court
Kamil Khan vs State Of Himachal Pradesh on 25 June, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No. 1131 of 2019
Decided on June 25, 2019
.
-----------------------------------------------------------------------------
Kamil Khan ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
-----------------------------------------------------------------------------
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
-----------------------------------------------------------------------------
For the petitioner Mr.Deepak Kaushal, Advocate.
For the respondent Mr. Sanjeev Sood and Mr. Sudhir
Bhatnagar, Additional Advocates
General and Mr. Kunal Thakur,
r Deputy Advocate General.
ASI Hardev Singh, I/O, Police
Station Majra, Sirmaur,
Himachal Pradesh.
-----------------------------------------------------------------------------
Sandeep Sharma, J. (Oral)
Sequel to order dated 18.6.2019, whereby the bail petitioner was ordered to be enlarged on bail, in the event of his arrest in FIR No. 80 of 2019, dated 13.6.2019, under Ss.
379 and 34 IPC and Ss. 41 and 42 of the Indian Forest Act, registered at Police Station, Majra, Tehsil Paonta Sahib, District Sirmaur, Himachal Pradesh, ASI Hardev Singh has come present with the record. Mr. Sanjeev Sood, learned Additional Advocate General has also placed on record status 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 28/09/2019 23:54:35 :::HCHP 2report prepared by the investigating agency on the basis of investigation carried out by it. Record perused and returned.
.
2. Perusal of the record reveals that on 12.6.2019, Police after having received a secret information, apprehended truck bearing registration No. HP 71-1431 carrying Khair wood from Dhaula Kuan to Paonta. Driver of the truck though made an attempt to flee from the spot, but he was apprehended by the Police officials and subsequently, he disclosed his name as Ram Pal. Since driver and other occupants of the truck in question failed to produce a valid permit for carrying the Khair wood, Police took into possession the truck as well as Khair wood loaded in the same. After informing Forest Department, Police registered a case under Ss. 379 and 34 IPC and Ss. 41 and 42 of the Indian Forest Act at Police Station Majra, District Sirmaur, Himachal Pradesh. Since driver and other occupants of truck during investigation disclosed that the Khair wood being transported in the vehicle was purchased from the bail petitioner, who is a government contractor, his name was included in the FIR.
3. Mr. Sanjeev Sood, learned Additional Advocate General, while fairly admitting that the petitioner has joined the investigation in terms of order dated 18..6.2019, contended that though the investigation in the case is ::: Downloaded on - 28/09/2019 23:54:35 :::HCHP 3 complete and nothing is required to be recovered from the bail petitioner but taking note of the previous record of the bail .
petitioner, there is every likelihood of the bail petitioner fleeing from justice or tampering with the evidence in the event of his being enlarged on bail, as such, prayer for grant of bail may be rejected. Mr. Sood, learned Additional Advocate General further contended that though no recovery is to be effected from the bail petitioner, but till date, demarcation of the land from where wood has been extracted, is yet to be carried out.
4. Having heard learned counsel for the parties and perused the material available on record, this court finds that the bail petitioner never came to be apprehended by the Police with the Khair wood being transported by other co-accused in Truck bearing registration No. HP-71-1431 and it is only on the statements of the persons apprehended on the spot to the effect that they have brought this Khair wood from the Depot being run by the bail petitioner, name of bail petitioner also came to be included in the FIR as an accused. Though, the case of the investigating agency is that the timber allegedly recovered from the vehicle in question belongs to bail petitioner and same has been cut from government land/forest, but interestingly, this Court was unable to lay its hand to any document placed on record with regard to alleged ::: Downloaded on - 28/09/2019 23:54:35 :::HCHP 4 cutting of Khair wood, if any, from the Government/forest land. Demarcation is yet to be carried out by the investigating .
agency to establish on record that the Khair wood allegedly being smuggled in the vehicle in question was cut from the Government land/forest. Though aforesaid aspects of the matter are to be considered and decided by the learned trial Court in the totality of evidence collected on record by the investigating agency but, having taken note of the fact that bail petitioner has already joined the investigation and nothing is required to be recovered from him, this court sees no reason for his custodial interrogation. Though, in the status report, it has been stated that the bail petitioner had been indulging in such activities in the past also, but guilt, if any, of the bail petitioner in those cases is yet to be established and as such, mere pendency of case, if any, cannot be a ground at this stage for non-grant of bail.
5. Guilt, if any, of the bail petitioner is yet to be proved in accordance with law by the prosecution, as such, it would not be appropriate to curtail the freedom of bail petitioner for an indefinite period, especially when nothing remains to be recovered from him. Apprehension expressed by learned Additional Advocate General that in event of bail petitioner being enlarged, he may tamper with the evidence, ::: Downloaded on - 28/09/2019 23:54:35 :::HCHP 5 can be best met by putting bail petitioner to stringent conditions, as has been fairly admitted by learned counsel for .
the bail petitioner.
6. 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 ::: Downloaded on - 28/09/2019 23:54:35 :::HCHP 6 large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a 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.
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 ::: Downloaded on - 28/09/2019 23:54:35 :::HCHP 7 or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, 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."
7. 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 ::: Downloaded on - 28/09/2019 23:54:35 :::HCHP 8 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 rof 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."
8. 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, ::: Downloaded on - 28/09/2019 23:54:35 :::HCHP 9 character of the accused, circumstances which are peculiar to the accused involved in that crime.
.
9. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held as under:
"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 ::: Downloaded on - 28/09/2019 23:54:35 :::HCHP 10 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 .
period would amount to violation of Article 21 of the Constitution was highlighted."
10. 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 r 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.
11. In view of above, bail petitioner has carved out a case for himself and as such, present petition is allowed. Order dated 18.6.2019 is made absolute, subject to the bail petitioner furnishing fresh bail bonds in the sum of Rs.5,00,000/- (Rs.
Five 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 ::: Downloaded on - 28/09/2019 23:54:35 :::HCHP 11 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) 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 him.
12. 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.
13. 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) Judge June 25, 2019 (vikrant) ::: Downloaded on - 28/09/2019 23:54:35 :::HCHP