Himachal Pradesh High Court
Sukh Chain vs State Of Himachal Pradesh on 20 March, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 302 of 2020
.
Date of Decision : 20th March, 2020
Sukh Chain ...Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 No.
For the petitioner r : Mr. Nitin Thakur, Advocate.
For the respondent : Mr. Nand Lal Thakur, Additional Advocate
General and Mr. Ram Lal Thakur, Assistant
Advocate General, for the State.
Anoop Chitkara, Judge (oral)
The petitioner, who is apprehending his imminent arrest on being arraigned as an accused, in case FIR number 22/2020 dated 18.2.2020, registered under Sections 307 and 325 of the Indian Penal Code, in Police Station, Kumarsain, District Shimla, H.P., disclosing non-bailable offences, has come up before this Court under Section 438 of the Code of Criminal Procedure, seeking anticipatory bail.
2. The status report stands filed. I have heard learned counsel, for the petitioner and learned Additional Advocate General, for the respondent/ State. I have seen the status report(s) as well as 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 23/03/2020 20:23:33 :::HCHP 2the police file, to the extent it was necessary for deciding the present petition and the same stands returned to the police official through .
counsel appearing for the State.
3. The counsel for the petitioner submits that the accused had joined the investigation as and when the Investigating Officer so directed him. Learned Additional Advocate General did not dispute this averment.
FACTS:
4. The gist of the First Information Report and the investigation, reveals that :
(a) That on 18.2.2020 at 12:30 noon, the Police Station, Kumarsain, received an information that the bail petitioner Sukh Chain has fired upon Chander Kumar.
On receipt of such, the Police officials reached at Civil Hospital, Kumarsain and recorded his statement under Section 154 Cr.P.C. The injured stated that on 18.2.2020 at 12:00 noon, he alongwith son Naresh and Dinesh, were spraying his orchard and had linked a water pipe from the tank. He further stated that the orchard of bail petitioner, Sukh Chain is nearby. Sukh Chain asked him not to take pipe from his field and on this, the injured told him that he will take pipe from here itself. On this, Sukh Chain started hurling abuses at him and threatened him that he will fire upon him. After that, he brought his gun and fired upon him and the bullet hit his left leg, thigh and knee.
(b) On the basis of this complaint, the aforesaid FIR was registered against the present petitioner.
ANALYSIS AND REASONING:
5. Pre-trial incarceration needs to be justified depending upon the heinous nature of the offence, terms of the sentence ::: Downloaded on - 23/03/2020 20:23:33 :::HCHP 3 prescribed in the Statute for such a crime, accused fleeing from justice, hampering the investigation, and doing away with witnesses.
.
The Court is under the Constitutional obligation to safeguard the interests of the victim, the accused, the society, and the State.
JUDICIAL PRECEDENTS:
6. In Gurbaksh Singh Sibbia and others v. State of Punjab, 1980 (2) SCC 565 : A Constitutional Bench of Supreme Court holds:- r "30. ...It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail."
7. In Siddharam Satingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, Supreme Court holds:
"Relevant consideration for exercise of the power:
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 visualised 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 ::: Downloaded on - 23/03/2020 20:23:33 :::HCHP 4 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 Criminal Procedure .
Code 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.
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;::: Downloaded on - 23/03/2020 20:23:33 :::HCHP 5
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."
8. Given the above reasoning, in my considered opinion, the custodial investigation of the petitioner/accused is not going to serve any purpose whatsoever, and I am inclined to grant bail on the following grounds, but subject to stringent conditions:
(a) In the bail petition, which is supported by affidavit of petitioner, Sukh Chain, he has admitted the following circumstances:-
"3. That on 18.2.2020 at about 12 noon Sh. Chander Kumar alongwith his two sons namely Dinesh and Naresh came to the orchard of the petitioner with dandas and started abusing and hitting the petitioner with dandas. Chander Kumar, Dinesh & Naresh gave beatings to the petitioner on his body and head. The petitioner even tried to call the Police however the phone was snatched by the said named person above. The petitioner managed to run from the spot to his home and brought his single barrel rifle for self protection. The petitioner fired at the ground so that the brother and his sons could run away from the spot and the petitioner could protect himself.
4. That Sh. Chander Kumar sustained injuries in his leg from the shot fired by the petitioner and thereafter the ::: Downloaded on - 23/03/2020 20:23:33 :::HCHP 6 sons of Chander Kumar further gave beatings to the petitioner with dandas and ran away from the spot.
9. That the petitioner belongs to a respectable family .
and due to the uncordial relationship between the brothers and beatings given by Chander Kumar, Dinesh and Naresh, petitioner fired a shot from his licensed single barrel gun for his self protection. In these circumstances, the petitioner apprehends being arrested in the above false case and seeks protection of this Hon'ble Court as offence being non bailable."
(b) In view of the admissions made by the petitioner in affidavit, coupled with the averments in FIR whereby the injured Sukh Chain proclaimed that he will take the water pipe from this very place, there is no justification for custodial interrogation.
(c) The petitioner had joined the investigation.
(d) In the status report, there is no mention of previous criminal history of the bail petitioner.
(e) No recovery is pending from the petitioner.
(f) The petitioner is permanent resident of address mentioned in the memo of parties. Therefore, his presence can always be secured.
(g) I am of the considered view that, prima facie, petitioner has made out a case for grant of bail.
(h) The investigation is almost at the final stages of completion.
9. Consequently, the present petition is allowed. The interim order dated 19.2.2020, is made absolute, on the following terms and conditions:
::: Downloaded on - 23/03/2020 20:23:33 :::HCHP 7(i) The petitioner is directed to join the investigation as and when called by the Investigating Officer. The petitioner undertakes to appear before the .
Investigating Officer as and when directed to do so. However, whenever the investigation takes place within the boundaries of the Police Station or Police Post, then the petitioner shall not be called before 9:00 am and shall be let off before 5:00 pm.
(ii) The petitioner is directed to cooperate in the investigation.
(iii) The petitioner shall neither influence nor try to control the Investigating Officer in any manner whatsoever.
(iv) The petitioner shall not hamper the investigation.
(v) The petitioner undertakes not to contact the complainant and witnesses to threaten or browbeat them or to use any pressure tactics.
(vi) The petitioner undertakes not to make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or any police officer or tamper with the evidence.
(vii) The petitioner undertakes to attend the trial.
(viii) In case the petitioner commits any offence prescribing the sentence of imprisonment of more than seven years, within thirty days of knowledge of such FIR, the petitioner shall intimate SHO of the present police station, with all the details of the present FIR as well as the new FIR. In such a situation, it shall be open for the State to apply to this Court for cancellation of this bail, if it deems fit and proper.
::: Downloaded on - 23/03/2020 20:23:33 :::HCHP 8(ix) In case the petitioner repeats the offence or commits any offence where the sentence is seven years or more, then before granting bail, the Courts shall .
consider the fact that he was also warned earlier about not repeating the offence and not committing it.
(x) The petitioner shall either sell or deposit all the fire arms alongwith ammunition and arms licences before the concerned authorities within 30 days from today.
(xi) Apart from above, in case the petitioner does not turn up before the Trial Court, then the trial Court may issue Non-Bailable warrants and send the r petitioner to the Judicial Custody for the period for which the presence of the petitioner cannot be dispensed with. If the petitioner violates any other condition(s) as stipulated in this bail order, then the Trial Court may direct the Public Prosecutor to file a cancellation application before it and it shall be lawful and permissible for the Trial Court to cancel the bail.
10. The present bail order is only for the FIR mentioned above. It shall not be construed to be a blanket order of bail in all other cases, if any, registered against the petitioner.
11. Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.
::: Downloaded on - 23/03/2020 20:23:33 :::HCHP 912. The SHO/Additional SHO of the concerned Police Station or the Investigating Officer to handover a copy of this order .
to the victim and explain it to him.
Petition stands allowed in the terms mentioned above.
Copy dasti.
(Anoop Chitkara), Judge.
20th March, 2020 KS) ::: Downloaded on - 23/03/2020 20:23:33 :::HCHP