Himachal Pradesh High Court
Sangat Ram vs State Of Himachal Pradesh on 24 February, 2023
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. M.P.(M) No. 370 of 2023 and Cr.MP(M) No. 398 of 2023 Reserved on: 20.02.2023 Decided on: 24.02.2023 .
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1. Cr.MP(M) No. 370 of 2023 Sangat Ram ......Petitioner Versus State of Himachal Pradesh ......Respondent
2. Cr.MP(M) No. 398 of 2023 Suraj Bahadur ....Petitioner Versus State of Himachal Pradesh ....Respondent. ___________________________________________________________ Coram The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1 Yes For the petitioner(s): Mr. Yashveer Singh Rathore, Advocate, in Cr.MP(M) No. 370 of 2023 and Mr. Rakesh Kumar Chaudhary, Advocate, in Cr.MP(M) No. 398 of 2023.
For the respondent(s): Mr. B.C.Verma and Mr. Rakesh Dhaulta, Additional Advocate Generals.
HC Chander Shekhar, No. 54, P.S. Kullu, H.P. present in person.
Satyen Vaidya, Judge.
These two petitions have been heard together and are being decided by a common order as 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 24/02/2023 20:31:58 :::CIS 2common questions of facts are involved. Both bail petitions have arisen out of the same FIR.
2. Petitioners have prayed for grant of bail in .
case FIR No.255 of 2022, dated 20.7.2022, under Sections 302, 147 and 149 of IPC, registered at Police Station, Sadar Kullu, District Kullu, H.P.
3. Brief facts necessary for adjudication of petitions are that on 19.7.2022 police recorded the statement of one Pratik Kundu under Section 154 Cr.P.C. regarding the incident in question. It was reported that on 14.7.2022, the complainant alongwith his four other friends namely Tushar, Sudhir, Nitin and Rohit reached Manikaran in District Kullu in their personal vehicle. They stayed at Manikaran on 15.7.2022. On 16.7.2022, all of them visited Barshaini in the vehicle and thereafter started tracking towards Khir Ganga. They reached Ice-Point at about 5.45 p.m. It was drizzling. They sat on the chairs in a café. While they were gossiping amongst themselves, some persons were having liquor in the ::: Downloaded on - 24/02/2023 20:31:58 :::CIS 3 adjoining shed. Two persons came to them and asked as to what were they talking about. They got enraged and started altercation with the complainant and his .
friends. They got scared and ran towards Khir Ganga.
Some more persons joined together and chased the complainant and his friends and pelted stones on them. After running for about 1- 1½ kilometers, all five persons from complainant party ran downwards on a slope. Four of them took shelter under a stone, but Rohit did not reach there. After some time four of them called Rohit, but Rohit did not respond. It had become dark by then. They came up, but did not find Rohit.
Thereafter four of them started towards Khir Ganga, there also they came to know that local persons were searching for them. On 18.7.2022, they reached Barshaini via Bhun-Bhuni with the help of some persons. They could not contact anyone as there was no mobile signal on the hills. They informed their family members once they reached Barshaini.
::: Downloaded on - 24/02/2023 20:31:58 :::CIS 4Thereafter, on 19.7.2022, the matter was reported to the police.
4. The case was registered. On completion of .
investigation, police has presented the challan in the Court on the hypothesis that Rohit had rolled down the hill after being hit by a stone and had drowned in the river. Six persons including the petitioners have been implicated as accused. It is alleged against them that on 16.7.2022 all the accused persons had chased the complainant party and had pelted stones on them.
During investigation, the Investigating Officer recorded supplementary statements of the complainant and his friends, in which they disclosed that Rohit had rolled down the hill after being hit by a stone pelted by the accused persons. All the four friends had followed Rohit on the slope to save him, but he could not be saved and they all had seen him rolling towards the river.
5. Petitioners have prayed for grant of bail on the grounds that the complainant party has concocted ::: Downloaded on - 24/02/2023 20:31:58 :::CIS 5 a false story. The petitioners have not been involved in any offence. It is also submitted that there is no legal evidence to connect the petitioners with the alleged .
crime. The petitioners are stated to be permanent residents of Village Nakthan, Post Office Barsaini, Tehsil Bhunter, District Kullu, H.P. and they undertake to remain available for the purpose of trial.
6. On the other hand, the bail petitions have been opposed on behalf of the respondent/State. It has been submitted that the petitioners are accused of serious offence. The accusations against them are of serious nature. In case of their release on bail, petitioners may abscond or flee from the course of justice and they may also try to influence the prosecution evidence.
7. I have heard learned counsel for the petitioner and learned Additional Advocate General for the respondent/State and have also gone through the records of the case carefully.
::: Downloaded on - 24/02/2023 20:31:58 :::CIS 68. In Prasanta Kumar Sarkar vs. Ashis Chatterjee and another (2010) 14 SCC 496, the Hon'ble Supreme Court culled out the following guiding factors to .
be borne in mind while considering an application for bail :
9.(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) r 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."
9. In Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40, the Hon'ble Supreme Court observed and held as under:
"21. In bail applications, generally, it has been laid down from the earliest times that 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 ::: Downloaded on - 24/02/2023 20:31:58 :::CIS 7 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.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted 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 this country, 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.
23. Apart from the question of prevention being the object of a 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 un-convicted person for the purpose of giving him a taste of imprisonment as a lesson."::: Downloaded on - 24/02/2023 20:31:58 :::CIS 8
10. In Dataram Singh vs. State of Uttar Pradesh and another (2018) 3 SCC 22, the Hon'ble Supreme Court in paras 4 to 6 of the judgment, held as under:
.
"4. 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 Inhuman Conditions in 1382 Prisons, In re, (2017) 10 SCC 658.
5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah v. Union of India (2018) 11 SCC 1, going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565, in which it is observed that it was held way back in Nagendra Nath Chakravarti, In re, 1923 SCC Online Cal 318, that bail is not to be withheld as a punishment.
Reference was also made to Emperor v. H. L. Hutchinson, 1931 SCC online All 14, wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.::: Downloaded on - 24/02/2023 20:31:58 :::CIS 9
6. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a .
humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory."
11. In Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana (Koli) and another (2021) 6 SCC 230, the Hon'ble Supreme Court in para 47 of the judgment, held as under:
"47. The considerations which must weigh with the Court in granting bail have been formulated in the decisions of this Court in Ram Govind Upadhyay v.
Sudarshan Singh (2002) 3 SCC 598 and Prasanta Kumar Sarkar v. Ashis Chatterjee( 2010) 14 SCC 496. These decisions as well as the decision in Sanjay Chandra (supra) were adverted to in a recent decision of a two judge Bench of this Court dated 19 March 2021 in The State of Kerala v. Mahesh (2021) 14 SCC 86, where the Court observed: (SCC para 21) "21. .....All the relevant factors have to be weighed by the Court considering an application for bail, including the gravity of the offence, the evidence and material which prima facie show the involvement of applicant for bail in the offence alleged, the extent of involvement of the applicant for bail, in the offence alleged, possibility of the ::: Downloaded on - 24/02/2023 20:31:58 :::CIS 10 applicant accused absconding or otherwise defeating or delaying the course of justice, reasonable apprehension of witnesses being threatened or influenced or of evidence being tempered with, and danger to the safety of the .
victim (if alive), the complainant, their relatives, friends or other witnesses."
Similarly, the Court held that the grant of bail by the High Court can be set aside, consistent with the precedents we have discussed above, when such grant is based on non-application of mind or is innocent of the relevant factors for such grant."
12. In the instant case, the accusations against petitioners are serious in nature, however, in order to prima-facie assess the seriousness and gravity of accusations as also to prima-facie find out the existence of reasonable grounds for believing that the accused have committed the offence as alleged, a cursory scan of the material collected by the Investigating Agency becomes necessary. Merely because, the accusations are of serious nature and offence, if proved, will attract severe punishment, cannot be the only ground to deny the bail.
It has to be weighed and balanced with other factors, such as the allegations against the bail-petitioners and also the available evidence to prove such allegations.
::: Downloaded on - 24/02/2023 20:31:58 :::CIS 1113. The onerous obligation on the Court while deciding a bail application, has its genesis in maintenance of balance between the rights of the accused on one hand .
and the public interest on the other. Needless to say that bail has been held to be the rule and jail as an exception.
14. Reverting to the facts of the case, the accusations and allegations against petitioners are subject to proof. The matter was reported to the police after two days of the alleged incident. The explanation rendered for delay is also subject to strict scrutiny. In the first version given by the complainant to the police, it was not disclosed that the complainant and his friends had seen Rohit rolling down from the hill towards river. It is unexplainable as to why such material fact was suppressed. The body of Rohit has not been recovered till date.
15. The observations made hereinabove, are only to prima-facie assess the seriousness and gravity of allegations against the petitioners and the material collected during the investigation to substantiate such accusations.
::: Downloaded on - 24/02/2023 20:31:58 :::CIS 1216. Analyzing the facts of the case at the touchstone of legal parameters, as enunciated from time to time and noticed above, this Court is of the view that petitioners are .
entitled to bail. The petitioners have a permanent abode.
The apprehension expressed by learned Additional Advocate General regarding possibility of petitioners fleeing from the course of justice is only on supposition.
No criminal history has been attributed to the petitioners.
Even otherwise, petitioners can be put to strict terms for ensuring fair and speedy trial.
17. Learned Additional Advocate General has also not been able to convincingly reveal the material which may be sufficient to draw an inference regarding possibility of petitioners tampering with prosecution evidence.
18. Petitioners are already in custody since 21.7.2022. Their further detention in judicial custody are not going to serve any fruitful purpose. Pre-trial incarceration cannot be ordered as a matter of rule. In case the charges, if any against the petitioners are proved, they will suffer the legal consequences.
::: Downloaded on - 24/02/2023 20:31:58 :::CIS 1319. Accordingly, the petitions are allowed and the petitioners are ordered to be released on bail in case registered vide FIR No.255 of 2022, dated 20.7.2022, .
under Sections 302, 147 and 149 of IPC, at Police Station, Sadar Kullu, District Kullu, H.P., on their furnishing personal bonds in the sum of Rs.1,00,000/- each with one surety each in the like amount to the satisfaction of learned trial Court. This order shall, however, be subject to the following conditions:
i) That the petitioners shall not indulge in any criminal activity and in the event of breach of this condition, the bail granted to the petitioners in this case, shall automatically be cancelled.
ii) That the petitioners shall not leave the territory of India without express leave of Trial Court during the Trial.
iii). That the petitioners shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case and shall not tamper with the prosecution evidence.::: Downloaded on - 24/02/2023 20:31:58 :::CIS 14
iv) That the petitioners shall regularly attend the trial of the case before learned Trial Court and shall not cause any delay in its conclusion.
20. Any observation made in this order shall not be .
taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made hereinabove.
24th February, 2023. (Satyen Vaidya) (GR) Vacation Judge ::: Downloaded on - 24/02/2023 20:31:58 :::CIS