Himachal Pradesh High Court
Taj Mohammad @ Taju vs State Of Himachal Pradesh on 28 August, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No. 1562 of 2019
Decided on August 28, 2019
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Taj Mohammad @ Taju ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
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Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1
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For the petitioner Ms. Anjali Malhotra and Mr.
Shashi Kant, Advocates.
For the respondent Mr. Sanjeev Sood and Mr. Sudhir
Bhatnagar, Additional Advocates
r General with Mr. Kunal Thakur,
Deputy Advocate General.
ASI Ram Sawroop, Police Station,
Baddi, Solan, Himachal Pradesh.
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Sandeep Sharma, J. (Oral)
Bail petitioner, Taj Mohammad alias Taju, who is behind the bars since 28.1.2019, has approached this Court in the instant proceedings, filed under S.439 CrPC, for grant of regular bail in FIR No. 11 dated 7.1.2019, under Ss. 392, 307 and 120B IPC and S. 25 of the Arms Act, registered at Police Station, Baddi, Solan, Himachal Pradesh.
2. Sequel to order dated 16.8.2019, ASI Ram Sawroop, Police Station, Baddi, Solan, Himachal Pradesh has come present with the record. Mr. Sudhir Bhatnagar, learned Additional 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 02:46:53 :::HCHP 2Advocate General has also placed on record status report prepared by the investigating agency on the basis of investigation .
carried out by it. Record perused and returned.
3. Record made available this Court reveals that on 3.1.2019, complainant Amit Kumar telephonically informed the Police Station Baddi, that at a place namely Sandoli Gurudwara, two motor cycle riders have fired at a person, going on his motor cycle and thereafter culprits have fled away towards Nalagarh.
After having received aforesaid information, though the Police tried to record statement of injured, Lal Chand, but since he was not fit to give statement, police recorded statement of Amit Kumar under S.154 CrPC, who alleged that on 7.1.2019, when he alongwith his family members was going in vehicle bearing registration No. HP03T-4354, a person carrying a bag on his shoulder was riding a motor cycle bearing registration No. HP-
12G-6402 at place namely Malpur Bridge and simultaneously, two persons were also going towards Baddi riding a silver coloured motor cycle with covered faces, who were tying to pull the rider of earlier motor cycle. It is further alleged in the complaint that near Chinar Hotel, riders of silver coloured motor cycle were seen coming back, whereas motor cycle bearing registration No. HP-12G-6402 and its rider were lying on the road. On enquiry, it was revealed to the complainant by the ::: Downloaded on - 29/09/2019 02:46:53 :::HCHP 3 persons present there that riders of the silver coloured motor cycle fired and snatched bag containing Rs.8.00 Lakh. On the .
basis of aforesaid statement made by complainant Amit Kumar, FIR in question came to be lodged at Police Station, Baddi.
Injured Lal Chand was rushed to PGI Chandigarh, where he remained admitted for quite considerable time. As per status report, said injured person has been discharged but the injuries suffered by him have been opined to be grave in nature. On the basis of CCTV footage and dump data, police apprehended three accused namely Major Singh, Sukhbir Singh and Hardeep Singh alias Rimpa. Investigation further reveals that at the behest of above named accused, a sum of Rs.3,19,000/- came to be recovered. During investigation, co-accused Major Singh disclosed that he had taken the pistol from bail petitioner for a sum of Rs.1,04,000/-. He further disclosed that apart form Rs.1,04,000/-, he also handed over Rs.1,20,000/- to the bail petitioner, for safe custody. On the basis of aforesaid statement made by co-accused Major Singh, bail petitioner came to be arrested on 28.1.2019, and since then he is behind the bars.
4. While making this Court to peruse the record, Ms. Anjali Malhotra and Mr. Shashi Kant, Advocates, strenuously argued that no case, much less a case under Ss. 307, 302 and 120B IPC is made out against their client, because there is ::: Downloaded on - 29/09/2019 02:46:53 :::HCHP 4 nothing on record to suggest that the bail petitioner was also present at the time of commission of alleged offence. They further .
contended that as per statement of Major Singh, he had taken one pistol from bail petitioner for Rs.1,04,000/-, but he has nowhere stated that the bail petitioner was involved in the commission of offence. Lastly, learned counsel for the bail petitioner contended that though the factum with regard to purchase of gun by Major Singh, from bail petitioner is yet to be proved in accordance with law by the investigating agency but presuming that the bail petitioner had given pistol to the accused, case if any, against him can only be registered under Arms Act only and not under Ss.307, 392 and 120B IPC. Learned counsel for the bail petitioner contended that since the Challan stands filed in the competent Court of law and nothing remains to be recovered from the bail petitioner, he deserves to be enlarged on bail, especially when there is nothing to connect the bail petitioner with the commission of alleged offence.
5. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly acknowledging the factum with respect to filing of the Challan, contended that keeping in view the gravity of the offence alleged to have been committed by bail petitioner, he does not deserve to be shown any leniency, rather, deserves to be dealt with severely. Apart from that, Mr. Bhatnagar, contended ::: Downloaded on - 29/09/2019 02:46:53 :::HCHP 5 that since pistol used by accused in firing gunshot belongs to bail petitioner, it cannot be said that he was not a party to the .
conspiracy, under which accused fired gunshot and snatched Rs.8.00 Lakh from the injured. Mr. Bhatnagar, further contended that bail petitioner was unable to produce licence if any, of the pistol allegedly given by him to the co-accused. He further contended that money alleged to have been paid to him by accused Major Singh has also been recovered from the house of the bail petitioner as such, it cannot be said that he was not a party to the conspiracy alongwith other accused.
6. Having heard learned counsel for the parties and perused the material available on record, this Court finds that as per case of prosecution, during investigation, accused Major Singh disclosed that he had taken the pistol from bail petitioner for Rs.1,04,000/-. During investigation, accused Major Singh, while giving details of money allegedly received by him, disclosed that he spent Rs.1,04,000/- in purchase of pistol and remaining amount was handed over to bail petitioner to keep the same in safe custody. Present bail petitioner, whose name came to be included in the FIR, on the basis of statement of co-accused, though categorically denied the fact that he had given pistol to the co-accused Major Singh, but admittedly a sum of Rs.76,500/- came to be recovered from his house at his behest, ::: Downloaded on - 29/09/2019 02:46:53 :::HCHP 6 but recovery, if any, of the amount referred to herein above cannot be a ground to conclude at this stage that the bail .
petitioner conspired alongwith other co-accused for the commission of alleged offence, because, it has specifically come in the statement of co-accused, Major Singh that he had handed over certain amount to bail petitioner for safe custody.
7. As per prosecution story, pistol allegedly used by co-
accused Major Singh etc. was subsequently recovered from the bail petitioner but, as has been noticed herein above, factum with regard to handing over/sale, if any, by bail petitioner to Major Singh is yet to be established as such, mere recovery of pistol from bail petitioner cannot be a ground to conclude involvement of the bail petitioner in the alleged offence, especially in view of statement of co-accused Major Singh, who has categorically stated that he had taken gun from bail petitioner for Rs.1,04,000/-. It is not understood that once gun was taken by Major Singh, as he has stated in his statement, how it subsequently came to be recovered from the possession of bail petitioner. 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 perused material available on record, this Court is in agreement with learned counsel for the bail petitioner that at this ::: Downloaded on - 29/09/2019 02:46:53 :::HCHP 7 stage, there is nothing on record to infer prima facie case, if any, under Ss.307, 392 and 120B IPC against the bail petitioner as .
such, this court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when his guilt, if any, is yet to be established. Moreover, Challan stands filed in the competent Court of law and there is nothing on record suggestive of the fact that in the event of being enlarged on bail, bail petitioner may flee from justice.
8. Apprehension expressed by the learned Additional Advocate General that in the event of enlargement on bail, the bail petitioner may flee from justice, can be best met by putting the bail petitioner to stringent conditions. Otherwise also, Hon'ble Apex Court and this Court have repeatedly held that till the time, guilt of an individual is proved in accordance with, he/she is deemed to be innocent. In the case at hand guilt, if any, of the bail petitioner, is yet to be determined in the totality of the evidence collected on record by the prosecution.
9. 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 ::: Downloaded on - 29/09/2019 02:46:53 :::HCHP 8 innocent until found guilty. The Hon'ble Apex Court has held as under:
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"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 influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, ::: Downloaded on - 29/09/2019 02:46:53 :::HCHP 9 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 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."::: Downloaded on - 29/09/2019 02:46:53 :::HCHP 10
10. 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 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 ::: Downloaded on - 29/09/2019 02:46:53 :::HCHP 11 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 rbail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson."
11. 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.
12. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held as under:
::: Downloaded on - 29/09/2019 02:46:53 :::HCHP 12"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 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 ::: Downloaded on - 29/09/2019 02:46:53 :::HCHP 13 period would amount to violation of Article 21 of the Constitution was highlighted."
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13. 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 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 r 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.
14. In view of above, bail petitioner has carved out a case for himself. Consequently, present petition is allowed and petitioner is ordered to be enlarged on bail, subject to his furnishing 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 learned trial Court concerned, besides the 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;::: Downloaded on - 29/09/2019 02:46:53 :::HCHP 14
(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.
15. 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.
16. 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 August 28, 2019 (vikrant) ::: Downloaded on - 29/09/2019 02:46:53 :::HCHP