Himachal Pradesh High Court
__________________________________________________________ vs State Of Himachal Pradesh on 28 August, 2020
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr. MP(M) No.1375 of 2020
.
Date of Decision: 28.8.2020
__________________________________________________________
Rohit @ Kuri ........ Petitioner
Versus
State of Himachal Pradesh .....Respondent.
__________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the Petitioner: Mr. Pawan Gautam, Advocate,
through video conferencing.
For the Respondent: Mr. Sudhir Bhatnagar and Mr. Arvind
Sharma, Additional Advocate Generals,
through video conferencing.
__________________________________________________________
Sandeep Sharma, Judge (oral):
Bail petitioner namely, Rohit @ Kuri, who is behind the bars since 13.01.2020, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No.82 of 2019, dated 11.4.2019, under Sections 457, 380, 201 read with Section 34 of IPC, registered at police Station, Barmana, District Bilaspur, Himachal Pradesh.
1Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 29/08/2020 20:18:33 :::HCHP 22. Status report filed in terms of order dated 18.8.2020, reveals that on 11.4.2019 complaint got his .
statement recorded under Section 154 Cr.P.C at police Station, Barmana, District Bilaspur, Himachal Pradesh, alleging therein that on 11.4.2019, some unknown persons unauthorizedly entered his house and after breaking the door put on his Pooja room committed theft of two gold jewellery sets, six rings and one bracelet and as such, appropriate action be taken in accordance with law. After lodging of the aforesaid report, initially FIR came to be lodged against unknown persons under Section 457 and 380 of IPC, but thereafter during investigation, police on the basis of the dump data found involvement of present bail petitioner, who at that relevant time was in custody of police Station, Amb in connection with FIR No.55 of 2019, dated 28.4.2019, under Sections 457, 380 and 34 of IPC. During investigation, bail petitioner revealed that he alongwith other coaccused after having committed theft had gone to Kangravia Mandi. He admitted that he had given sum of Rs. 40,000/ to coaccused, whereas had kept all the gold jewellery,which was subsequently sold to some jeweller in Pathankot (Punjab). In ::: Downloaded on - 29/08/2020 20:18:33 :::HCHP 3 the aforesaid background, FIR, as detailed hereinabove, came to be lodged against the present bail petitioner as well .
as other coaccused and since 13.1.2020, he is behind the bars.
3. Mr. Arvind Sharma, learned Additional Advocate General, while fairly admitting the factum with regard to filing of the Challan in the competent court of law, contends that keeping in view the gravity of offence alleged to have been committed by him, he does not deserve any leniency and as such, prayer made on his behalf for grant of bail may be rejected.
4. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that though petitioner in his statement recorded under Section 161 of Cr.P.C, has admitted the factum with regard to theft committed by him in the house of the complainant, but since challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner, there appears to be no justification to keep the present bail petitioner behind the bars during trial, especially when he has already suffered for more than 8 months. It has been specifically stated in the status report that 80.31 grams ::: Downloaded on - 29/08/2020 20:18:33 :::HCHP 4 of gold stands already recovered from Shiv Shakti Jewellers Bharmand, Pathankot, to whom petitioner allegedly sold gold .
Jewellery for Rs. 1, 50,000/. Challan stands filed in the competent Court of law on 24.1.2020, wherein charges are yet to be framed. Since petitioner is behind the bars for the last eight months and till date no charges have been framed coupled with the fact that trial in the case is further likely to be delayed on account of prevailing condition in the wake of Covid19, this Court cannot let bail petitioner incarcerate in jail for indefinite period during the trial, especially when guilt, if any, of him is yet to be established on record. True, it is that as per the status report one case under Sections 457, 380 read with Section 34 of IPC stands already registered against the petitioner in police Station, Amb, District Una, H.P.,but guilt, if any, of bail petitioner in that case is yet to be established on record and as such, mere pendency of another case, as has been taken note hereinabove, cannot be a ground for this Court to reject the bail in the present bail petition.
Apprehension expressed by the learned Additional Advocate General that in the event of petitioner's being enlarged on bail, he may flee from justice or tamper with the prosecution evidence, ::: Downloaded on - 29/08/2020 20:18:33 :::HCHP 5 can be best met by putting the bail petitioner to the stringent conditions as has been fairly stated by learned counsel for the .
bail petitioner.
5. It has been repeatedly held by Hon'ble Apex Court as well as this Court in catena of cases that one is deemed to be innocent till the time his /her guilt is not proved, in accordance with law. In the case at hand, the guilt, if any, of the bail petitioner is yet to be proved, in accordance with law.
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 categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon'ble Apex Court further held that while considering prayer for grant of bail, 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. Hon'ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and ::: Downloaded on - 29/08/2020 20:18:33 :::HCHP 6 expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The .
relevant paras of the aforesaid judgment are reproduced 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 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 ::: Downloaded on - 29/08/2020 20:18:33 :::HCHP 7 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 firsttime 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, 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 ReInhuman Conditions in 1382 Prisons ::: Downloaded on - 29/08/2020 20:18:33 :::HCHP 8
7. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme .
Court Cases 49; 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 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 ::: Downloaded on - 29/08/2020 20:18:33 :::HCHP 9 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, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. 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.
9. The Hon'ble Apex Court in Prasanta Kumar Sarkar v. 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;::: Downloaded on - 29/08/2020 20:18:33 :::HCHP 10
(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.
10. Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail r to subject to his furnishing personal bond in the sum of Rs. 2,00,000/ (Rs. Two lac) with two local sureties in the like amount, to the satisfaction of the learned 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;
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 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.
11. It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him, the ::: Downloaded on - 29/08/2020 20:18:33 :::HCHP 11 investigating agency shall be free to move this Court for cancellation of the bail.
.
12. 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 bail petition stands disposed of accordingly.
Copy Dasti.
(Sandeep Sharma), Judge 28th August, 2020 (shankar) ::: Downloaded on - 29/08/2020 20:18:33 :::HCHP