Himachal Pradesh High Court
Kamlesh Kumar vs State Of Himachal Pradesh on 9 March, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMP(M) No. 143 of 2018
Decided on March 9, 2018
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Kamlesh Kumar ... 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 : Mr. Neel Kamal Sharma, Advocate.
For the respondent : Mr. Dinesh Thakur, Additional
Advocate General with Mr. Vikrant
Chandel, Deputy Advocate General.
ASI Chaman Lal, Police Station
Bhoranj, District Hamirpur,
Himachal Pradesh.
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Sandeep Sharma, Judge (oral):
Bail petitioner namely Kamlesh Kumar, apprehending his arrest in FIR No. 115/2017 dated 15.10.2017 under sections 452, 323, 325 and 326 read with Section 34 IPC, registered at Police Station Bhoranj, District Hamirpur, Himachal Pradesh, has approached this Court by way of instant petition under Section 438 CrPC, praying therein for grant of pre-arrest bail.
1Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 12/03/2018 23:03:53 :::HCHP 22. Sequel to order dated 16.2.2018, whereby bail petitioner was ordered to be enlarged on interim bail in the event of his arrest, ASI Chaman Lal has come present with the record.
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Learned Additional Advocate General has also placed on record status report prepared on the basis of investigation carried out by the investigating agency. Learned Additional Advocate General on the instructions of the Investigating Officer fairly admitted that the bail petitioner after having obtained interim
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r to bail from this Court, has joined the investigation and at this stage nothing is required to be recovered from him Close scrutiny of record/status report suggests that FIR mentioned herein above came to be lodged at the behest of complainant namely Sat Parkash, who alleged that on 15.10.2017, at around 6.30 pm, bail petitioner came to his house and asked that why he had removed the fencing of his field, whereafter, bail petitioner and his wife allegedly attacked the complainant with stones and iron rod, as a consequence of which, complainant allegedly suffered injuries on his person.
Investigation reveals that there is / was a dispute inter se parties on the issue of fencing allegedly removed by the complainant from the fields of bail petitioner. Another co-
accused in the case i.e. wife of present bail petitioner has been granted bail. It is also on record that FIR's have been registered ::: Downloaded on - 12/03/2018 23:03:53 :::HCHP 3 from both the sides. Though, perusal of medical evidence adduced on record by investigating agency suggests that complainant suffered simple as well as grievous injuries on his .
person during scuffle with the bail petitioner but, it is settled law that an individual is deemed to be innocent till the time, his guilt is proved.
4. In the instant case, there appears to be no attempt on the part of the investigating agency to associate independent witnesses, if any, with regard to alleged incident and as such, this Court, after having carefully perused the material on record, sees not reason for the custodial interrogation of the bail petitioner, who otherwise has joined the investigation, as has been fairly admitted by the learned Additional Advocate General.
5. It has been repeatedly held by the Hon'ble Apex Court that an individual is deemed to be innocent until proved guilty.
It has been further held by the Constitutional Courts that freedom of an individual is of utmost importance and it can not be curtailed merely on the basis of suspicion. In the case at hand, guilt of the accused is yet to be proved in accordance with law by the prosecution and as such, it may not be in the interest of justice to curtail the freedom of the petitioner for indefinite period, especially when he has joined the ::: Downloaded on - 12/03/2018 23:03:53 :::HCHP 4 investigation and has been fully cooperating with the investigating agency, as has been fairly admitted by the learned Additional Advocate General.
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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 held that freedom of an individual can not be curtailed for indefinite period, especially when his guilt has not been proved. It has further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held 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 ::: Downloaded on - 12/03/2018 23:03:53 :::HCHP 5 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, 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 - 12/03/2018 23:03:53 :::HCHP 6
7. 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 .
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 as under:-
r to Investigation (2012)1 Supreme Court Cases 49; has been held "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 ::: Downloaded on - 12/03/2018 23:03:53 :::HCHP 7 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 giving him a taste of imprisonment as a lesson."
8. 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:::: Downloaded on - 12/03/2018 23:03:53 :::HCHP 8
(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 - 12/03/2018 23:03:53 :::HCHP 9(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." (Emphasis supplied)
9. 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.
10. 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;::: Downloaded on - 12/03/2018 23:03:53 :::HCHP 10
(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;
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(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
11. In view of above, interim order dated 16.2.2018, is made absolute, subject to the petitioner's furnishing fresh bail bonds in the sum of Rs.50,000/- (Rs. Fifty Thousand) with a local surety in the like amount, to the satisfaction of the Investigating Officer concerned, besides 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 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.
12. 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.
::: Downloaded on - 12/03/2018 23:03:53 :::HCHP 1113. 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.
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The petition stands accordingly disposed of.
Copy dasti.
(Sandeep Sharma)
Judge
March 9, 2018
(vikrant)
r to
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