Himachal Pradesh High Court
Akshay Kumar vs State Of Uttar Pradesh & Anr on 2 November, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 2nd DAY OF NOVEMBER, 2022
BEFORE
.
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL MISC.PETITION (MAIN) No. 2297 of 2022
Between:
AKSHAY KUMAR, AGED 21 YEARS, SON
OF SH. KULDEEP KUMAR, RESIDENT OF
WARD NO.6, CHOTI HALED, P.O. KANGRA,
TEHSIL AND DISTRICT KANGRA,
HIMACHAL PRADESH.
....PETITIONER
(BY MR. N.K. THAKUR, SENIOR ADVOCATE
WITH MR. DIVYA RAJ SINGH, ADVOCATE.)
AND
STATE OF HIMACHAL PRADESH
....RESPONDENT
(BY MR. NARENDER GULERIA,
ADDITIONAL ADVOCATE GENERAL WITH
MR. SUNNY DHATWALIA, ASSISTANT
ADVOCATE GENERAL).
Whether approved for reporting? Yes.
This petition coming on for orders this day, the Court passed the
following:
ORDER
Bail petitioner, namely Akshay Kumar, who is behind the bars since 19.4.2021, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein to grant regular bail in case FIR No.58 of 2021, dated 17.04.2021, registered at police Station, Kangra, District Kangra, Himachal Pradesh under Sections 302, 323, 341, 504, 147, 149 and 34 of IPC.
::: Downloaded on - 03/11/2022 20:32:22 :::CIS 22. Pursuant to the notice issued in the instant proceedings vide order dated 18.10.2022, respondent-State has filed status report and ASI Ilam .
Deen has come present alongwith the record. Record perused and returned.
3. Close scrutiny of the record/status report reveals that on 17.04.2021, complainant Smt. Urmila Devi got her statement recorded under Section 154 Cr.P.C., alleging therein that on 14.04.2021, while her both sons were coming back from their work, person namely Aman, who supplies milk in the house of her sister-in-law reached below her house and started hurling abuses. She alleged that Aman had already called her two cousins, who at that relevant time were setting near Satyanarayan Mandir. Complainant alleged that her sister-in-law Smt. Surendra Devi, with whom she has inimical relations, has made above named Aman Kumar her son. She also alleged that her sister-in-
law was asking sons of her brother-in-law namely Sumit, Sachin, Chakshu and Arpit to go below the house and thereafter all the boys ran downwards and she also alongwith her husband followed them and found that near Satyanarayan Mandir her sons were being given beatings by the person namely Aman as well as his younger brother. Complainant alleged that when they tried to stop, Aman as well as other persons, they not only hurled abuses but also made casteist remarks. She alleged that when they were going towards police Station from Bata Gali, person namely Aman called 7-8 boys and gave merciless beatings to her husband, as a consequence of which, he fell down on the ground. On the basis of aforesaid statement made by the complainant, FIR, as detailed hereinabove, came to be lodged against the persons namely Aman and Sahil Chaudhary. However, subsequently, husband of the complainant namely, Sh. Joginder Aggarwal was admitted in the hospital on account of ::: Downloaded on - 03/11/2022 20:32:22 :::CIS 3 injury suffered by him in the scuffle, from where he was referred to RPGMC Tanda, District Kangra, Himachal Pradesh. However, unfortunately, .
on 18.04.2021 above named person Sh. Joginder Aggarwal passed away, as a consequence of which, Section 302 of IPC also came to be incorporated in the FIR, as detailed hereinabove. Since after completion of the investigation, police presented the challan in the competent court of law and nothing remains to be recovered from the bail petitioner, he has approached this Court in the instant proceedings, praying therein to grant regular bail.
4. While fairly admitting factum with regard to filing of the challan in the competent court of law, Mr. Narender Guleria, learned Additional Advocate General, submits that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of offence alleged to have been committed by him, prayer made on his behalf deserves outright rejection. He further submits that there is overwhelming evidence adduced on record by the prosecution suggestive of the fact that bail petitioner was not only present on the spot at the time of alleged incident, but he also gave merciless beatings to the deceased alongwith other co-accused Aman and Sahil Chaudhary. Learned Additional Advocate General further submits that since statements of material prosecution witnesses are yet to be recorded, it may not be in the interest of justice to enlarge the bail petitioner on bail because in the event of his being enlarged on bail, he may not only flee from justice, but may also temper with the prosecution evidence.
::: Downloaded on - 03/11/2022 20:32:22 :::CIS 45. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that co-accused .
namely Arpit Aggarwal, who happens to be nephew of deceased Joginder Aggarwal and complainant Urmila Devi already stands enlarged on bail vide order dated 12.10.2022 passed by this Court in Cr.MP(M) No.2102 of 2022.
This Court further finds from the record, especially DDR dated 15.04.2021 that Raghav Kumar son of late Sh. Joginder Aggarwal alongwith his mother, brother and deceased Joginder Aggarwal had lodged a complaint at police Station on 15.4.2021 at 1.20 AM, alleging therein that on 14.4.2021, at about 10.30 PM, while he alongwith his brother was going back his house, person namely Aman Kumar not only started hurling abuses but also gave beatings. He alleged that in the meanwhile, his brother Satyam reached near Satyanarayan Mandir accused namely Aman Kumar and Sahil Chaudhary gave beatings to him as well as other family members. He further alleged that while they were taking their father to the hospital, accused Aman reached near Bata Gali alongwith his 7-8 friends and started giving beatings to him as well as other family members, as a result of which, his father Sh. Joginder Aggarwal fell on the ground and suffered injuries.
6. After recording aforesaid report in DDR, deceased Joginder Aggarwal alongwith his son Raghav, who had initially lodged the report on 15.4.2021 and his wife Urmila Devi (complainant) went to Civil Hospital Kangra, where doctor after having examined him opined injuries to be simple in nature i.e. bruise and contusion. However on 16.4.2021, deceased firstly visited Mission Hospital Kangra on account of uneasiness and thereafter was referred to RPGMC Tanda. Record reveals that on 17.04.2021, police recorded the ::: Downloaded on - 03/11/2022 20:32:22 :::CIS 5 statement of wife of deceased Joginder Aggarwal i.e. complainant Urmila Devi, wherein she alleged that while she alongwith her sons and husband was going .
to police station to lodge a report, person namely Arpit Aggarwal alongwith other accused persons named in the FIR reached on the spot and gave beatings, as a consequence of which, her husband fell on the ground and suffered injuries. If the aforesaid version put forth by the complainant Smt. Urmila Devi, is perused juxtaposing initial report made by Raghav son of the complainant on 15.4.2021, there appears to be merit in the contention of learned counsel for the petitioner that at no point of time name of present bail petitioner ever came to be named in the initial report lodged on 15.4.2021. As has been taken note hereinabove, Raghav while lodging report on 15.4.2021 nowhere stated that present bail petitioner as well as other co-accused Arpit was also present on the spot and they also gave beatings to his father as well as other family members, rather Raghav specifically named Aman Kumar and Sahil Chaudhary at the time of making initial complaint on 15.4.2021 as stands recorded in DDR dated15.4.2021. In her statement recorded on 17.4.2021 complainant Smt. Urmila Devi stated that while she alongwith her husband and two sons were going to the police Station, person namely Arpit alongwith other 8 persons gave them beatings, as a result of which, her husband fell on the ground and suffered injuries and even at that time she did not specifically name the present bail petitioner. While granting bail to person namely Arpit Aggarwal, this Court categorically recorded in the order granting bail that once it is not in dispute that Arpit is/was nephew of deceased Joginder Aggarwal and complainant Smt. Urmila Devi, where was the occasion for the Raghav i.e. Son of deceased Joginder Aggarwal not to mention his name at the time of ::: Downloaded on - 03/11/2022 20:32:22 :::CIS 6 lodging report in DDR on 15.4.2021, especially when he was involved in the alleged incident.
.
7. Though, case at hand is to be decided by the Court below in totality of evidence collected on record by the prosecution, but having taken note of the fact that more than one year has passed after filing of the challan in competent court of law, but till date no charges have been framed against the petitioner, as a result of which, freedom of bail petitioner, whose guilt is yet to be established on record, is being curtailed for an indefinite period, prayer made on behalf of the petitioner deserves to be considered. As per the record of investigation, prosecution proposes to examine as many as 54 witnesses, meaning thereby, considerable time is likely to be consumed in the conclusion of the trial. Since Court below has not been able to frame charge for the last one year after filing of the challan, this Court has reason to presume and believe that considerable time shall be consumed in the conclusion of the trial and if during this period petitioner is allowed to incarcerate in jail, great injustice would be caused to him and that incarceration would amount to pre-trial conviction.
8. Hon'ble Apex Court in case titled Umarmia Alias Mamumia v.
State of Gujarat, (2017) 2 SCC 731, has held delay in criminal trial to be in violation of right guaranteed to an accused under Article 21 of the Constitution of India. Relevant para of the afore judgment reads as under:-
"11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC
616) Accused, even in cases under TADA, have been released ::: Downloaded on - 03/11/2022 20:32:22 :::CIS 7 on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569).
.
9. Reliance is placed upon judgment passed by Hon'ble Apex Court in Union of India v. K.A. Najeeb, Criminal Appeal No. 98 of 2021, wherein it has been held as under:
"18. It is thus clear to us that the presence of statutory restrictions like Section 43D (5) of UAPA perse does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial."
10. Reliance is also placed upon judgment passed by Hon'ble Apex Court in Prabhakar Tewari v. State of U.P. and Anr, Criminal Appeal No. 152 of 2020, wherein it has been held as under:
"2. The accused is Malkhan Singh in this appeal. He was named in the FIR by the appellant Prabhakar Tewari as one of the five persons who had intercepted the motorcycle on which the deceased victim was riding, in front of Warisganj Railway Station (Halt) on the highway. All the five accused persons, including Malkhan Singh, as per the F.I.R. and majority of the witness statements, had fired several rounds upon the deceased victim. The statement of Rahul Tewari recorded on 15th March, 2019, Shubham Tewari recorded on 12 th April, 2019 and Mahipam Mishra recorded on 20th April 2019 giving description of the offending incident has been relied upon by the appellant. It is also submitted that there are other criminal cases pending against him. Learned counsel for the accused- respondent no.2 has however pointed out the delay in recording the witness statements. The accused has been in custody for about seven months. In this case also, we find no error or impropriety in exercise of discretion by the High Court in granting bail to the accused Malkhan Singh. The reason why we come to this conclusion is broadly the same as in the previous appeal. This appeal is also dismissed and the order of the High Court is affirmed."::: Downloaded on - 03/11/2022 20:32:22 :::CIS 8
11. In the aforesaid judgment, Hon'ble Apex Court has held that while considering the prayer for grant of bail, Courts are expected to appreciate the .
legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.
12. Hon'ble Apex Court as well as this Court have held in a catena of judgments that one is deemed to be innocent, till the time his/her guilt is proved in accordance with law, as such, there is no justification to let bail petitioner incarcerate in jail for an indefinite period during trial. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions.
13. Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., decided on 6.2.2018, has categori-
cally held that a fundamental postulate of criminal jurisprudence is the pre-
sumption of innocence, meaning thereby that a person is believed to be inno-
cent until found guilty. Hon'ble Apex Court further held that while considering prayer for grant of bail, 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. Hon'ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of be-
ing victimized, it would be a factor that a judge would need to consider in an ::: Downloaded on - 03/11/2022 20:32:22 :::CIS 9 appropriate case. The relevant paras of the aforesaid judgment are reproduced 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 rthe 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, 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.::: Downloaded on - 03/11/2022 20:32:22 :::CIS 10
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
14. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; 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 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."
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 ::: Downloaded on - 03/11/2022 20:32:22 :::CIS 11 that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. 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 following principles to be kept in mind, while deciding petition for bail:
(i) whether there is any prima facie or reasonable ground to r 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, bail petitioner has carved out a case for himself.
Consequently, present petition is allowed and bail petitioner is ordered to be enlarged on bail, subject to his furnishing bail bonds in the sum of Rs.2,00,000/- with two sureties in the like amount, to the satisfaction of the learned trial Court, besides the following conditions:
::: Downloaded on - 03/11/2022 20:32:22 :::CIS 12(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.
18. It is clarified that if the petitioner misuses the liberty or violate any of the conditions imposed upon him, the 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 this application alone. The petition stands accordingly disposed of.
20. Learned counsel for the petitioner is permitted to produce copy of order downloaded from the High Court website before the trial Court, who shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.
2nd November, 2022 (Sandeep Sharma),
(shankar) Judge
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