Himachal Pradesh High Court
Mahinder Pal Singh Alias Raja vs State Of Himachal Pradesh on 28 November, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M)'s No. 1420 and 1421 of 2017
Decided on November 28, 2017
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1. CrMP(M) No. 1420 of 2017
Mahinder Pal Singh alias Raja ... Petitioner
Versus
State of Himachal Pradesh Respondent
2. CrMP(M) No. 1421 of 2017
Ranjodh Singh alias Tony ... Petitioner
Versus
State of Himachal Pradesh Respondent
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Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 yes.
For the petitioner(s) : Mr. Vijay Arora, Advocate.
For the respondent : Mr. P.M. Negi and Mr. M.L.
Chauhan, Additional Advocates
General with Mr. R.K. Sharma,
Deputy Advocate General .
Inspector Jasbir Singh, Police
Station Paonta Sahib, District
Sirmaur, Himachal Pradesh.
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Sandeep Sharma, Judge (oral):
Since both the bail petitions arise out of same FIR, these were taken up together, for disposal by way of this common judgment.
2. By way of instant bail petitions filed under Section 438 CrPC, prayer has been made for grant of pre-arrest bail in FIR No. 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 29/11/2017 23:32:43 :::HCHP 2480 of 2017 dated 10.11.2017, under Sections 342, 323, 506, 367, 377, 201, 147, 148, 149 IPC and Section 25 of the Arms Act, registered at Police Station, Paonta Sahib, District Sirmaur, .
Himachal Pradesh.
3. Before proceeding further, it may be noticed that inadvertently, date of next hearing in the previous order was typed as 28.12.2017 instead of 28.11.2017. However, the date was correctly noted by the learned counsel for the petitioners as well learned Additional Advocate General and matter was taken up today only i.e. 28.11.2017.
4. Sequel to order dated 20.11.2017, Inspector Jasbir Singh 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 till date. Record perused and returned.
5. Careful perusal of the record/status report reveals that on 10.11.2017, complainant namely Jaswant Singh made a report at Police Station, Paonta Sahib, District Sirmaur, alleging therein that on 9.11.2017, he was asked by accused namely Parminder Singh to accompany him. Since Parminder Singh was an old acquaintance, Jaswant Singh went with him. Parminder Singh took Jaswant Singh to the house of one of the co-accused namely Ranjodh Singh alias Tony i.e. bail petitioner in CrMP(M) No. 1421 of 2017, where another person namely Mahinder Pal Singh (bail ::: Downloaded on - 29/11/2017 23:32:43 :::HCHP 3 petitioner in CrMP(M) No. 1420 of 2017) was also present alongwith one Golu Saini. Above named accused allegedly bolted the room and windows, and thereafter gave thrashing to the .
complainant on the pretext that he had joined some other gang. As per complainant, he was not only given beatings but was also threatened with dire consequences by Parminder Singh, who showed him a pistol. Subsequently, complainant, in his statement recorded under Section 164 CrPC, before the learned Magistrate also disclosed that Parminder Singh, committed unnatural intercourse with him on 9.11.2017, in the presence of other accused, including present bail petitioners, as such, case came to be registered against the accused under Section 377 IPC apart from Sections 342, 323, 325, 506, 367, 201, 147, 148 and 149 IPC and Section 25 of the Arms Act.
6. As per status report, accused namely Parminder Singh, Gurjant Singh, Shamsher Singh and Mandeep Singh are in custody. It also emerges from the record that the bail petition filed by accused Parminder Singh has been already rejected by the learned Additional Sessions Judge, Sirmaur at Nahan.
7. Mr. M.L. Chauhan, learned Additional Advocate General, while inviting attention of this Court to the record/ status report, vehemently argued that keeping in view the gravity of offence, allegedly committed by the bail petitioners as well as other accused, who are in custody, present bail petitions deserve to be ::: Downloaded on - 29/11/2017 23:32:43 :::HCHP 4 dismissed and no leniency can be shown to the bail petitioners, who are hardened criminals. Mr. Chauhan, learned Additional Advocate General further contended that it clearly emerges from .
the record/ status report that the present bail petitioners are part of a gang and they have been indulging in illegal activities in the past also, as is evident from the fact that cases have been registered against them. Mr. Chauhan, learned Additional Advocate General, further contended that true it is that as per medical evidence available on record, all the injuries except injury No. 8 are simple in nature, but that can not be a ground to enlarge the bail petitioners on bail, keeping in view the fact that they have not only helped the main accused Parminder Singh in kidnapping the complainant, rather, thereafter, they threatened him with dire consequences and also gave him beatings. Lastly Mr. Chauhan, learned Additional Advocate General, contended that in the event of bail petitioners being enlarged on bail, there is every likelihood of their tampering with the evidence/hampering the investigation, as such instant bail petitions may be dismissed.
8. Mr. Vijay Arora, learned counsel representing the bail petitioners, while refuting the aforesaid submissions, having been made by the learned Additional Advocate General, strenuously argued that no case is made out against the bail petitioners under aforesaid provisions of law, as such, they are entitled to be enlarged on bail. While inviting attention of this Court to the ::: Downloaded on - 29/11/2017 23:32:43 :::HCHP 5 record/status report, Mr. Vijay Arora, learned counsel representing the bail petitioners, contended that there is no allegation of commission of offences under Section 377 IPC, .
against the bail petitioners, rather, it has specifically come in the statement of the complainant that the accused Parminder Singh committed unnatural intercourse with him. Mr. Arora, learned counsel representing the bail petitioners, contended that otherwise also, perusal of the status report suggests that there is no specific allegation of beatings against the bail petitioners, rather, repeatedly the complainant has named Parminder Singh, Gurjant Singh, Shamsher Singh and Mandeep Singh and there is only a passing reference of the present bail petitioners. Mr. Arora, learned counsel representing the bail petitioners, further contended that his clients can not be implicated in the case merely on the basis of their presence in the room, where complainant was allegedly given beatings. Lastly, Mr. Arora, learned counsel contended that bail petitioners have already joined investigation in terms of order dated 20.11.2017 and at this stage, nothing is required to be recovered from them and bail petitioners shall always be available for investigation and trial, and there is no likelihood of their fleeing from justice, in case enlarged on bail, as such, petitions may be allowed.
9. I have heard the learned counsel for the parties and gone through the record carefully.
::: Downloaded on - 29/11/2017 23:32:43 :::HCHP 610. It clearly emerges from the record that the accused namely Parminder Singh, on 9.11.2017, allegedly took the complainant, Jaswant Singh to the house of the bail petitioner namely Ranjodh .
Singh alias Tony. It also emerges from the record that in the room, where complainant was allegedly taken by accused Parminder Singh, bail petitioners were also present alongwith other accused named above. Record further reveals that the allegations of unnatural intercourse committed upon Jaswant Singh, are directly against Parminder Singh, and there is no such allegation against other accused including present bail petitioners. Similarly, allegation of showing revolver is against Parminder Singh. Though the record reveals that complainant Jaswant Singh was given beatings in the room by accused including bail petitioners but this Court finds substantial force in the arguments of Mr. Vijay Arora, learned counsel representing the bail petitioners that there are no specific allegations /imputations against the bail petitioners, indicative of the fact that injuries allegedly caused on the body of the complainant were caused by the bail petitioners, who allegedly were present in the room. At this stage, this Court finds no evidence on record suggestive of the fact that Parminder Singh in connivance with the other accused including bail petitioners, took the complainant to the room of Ranjodh Singh alias Tony, where other accused were present. Perusal of the MLC adduced on record by the investigating agency further suggests ::: Downloaded on - 29/11/2017 23:32:43 :::HCHP 7 that all the injuries, save and except injury No. 8, are simple in nature. Investigation in the case is almost complete and nothing is required to be recovered from the bail petitioners, as has been .
fairly admitted by the learned Additional Advocate General, on the instructions of the Investigating Officer, present in the Court.
Revolver/pistol and the car allegedly used in the offence have been recovered. As far as apprehension of the learned Additional Advocate General with regard to tampering with evidence/hampering the investigation in the event of enlargement of bail petitioners on bail, is concerned, in that event investigating agency is always at liberty to approach this Court, for the cancellation of bail.
11. Though aforesaid aspect of the matter i.e. involvement of the bail petitioners in the offence alleged against them, as has been pointed out in earlier order, is to be considered and decided by the learned trial Court, on the basis of evidence adduced on record by the respective parties, but this Court, after having taken note of the material available on record, sees no reason to keep the bail petitioners in custody for indefinite period, especially when guilt of the bail petitioners is yet to be proved, as such this Court can not allow the bail petitioners to incarcerate in jail, for indefinite period.
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 ::: Downloaded on - 29/11/2017 23:32:43 :::HCHP 8 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 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 ::: Downloaded on - 29/11/2017 23:32:43 :::HCHP 9 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:-
"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 ::: Downloaded on - 29/11/2017 23:32:43 :::HCHP 10 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.
(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 ::: Downloaded on - 29/11/2017 23:32:43 :::HCHP 11 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 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 ::: Downloaded on - 29/11/2017 23:32:43 :::HCHP 12 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 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 ::: Downloaded on - 29/11/2017 23:32:43 :::HCHP 13 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 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 ::: Downloaded on - 29/11/2017 23:32:43 :::HCHP 14 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.
17. In view of above, interim orders dated 20.11.2017, in both the petitions are made absolute, subject to the petitioners furnishing fresh bail bonds in the sum of `1,00,000/- each with a local surety in the like amount, to the satisfaction of the Investigating Officer concerned, besides 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.
18. It is clarified that if the petitioners misuse the liberty or violates any of the conditions imposed upon them, the ::: Downloaded on - 29/11/2017 23:32:43 :::HCHP 15 investigating agency shall be free to move this Court for cancellation of the bail.
19. 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 these petitions alone.
The petitions stands accordingly disposed of.
Copy dasti.
(Sandeep Sharma) Judge November 28, 2017 (vikrant) ::: Downloaded on - 29/11/2017 23:32:43 :::HCHP