Himachal Pradesh High Court
Robin Patrwal vs State Of Himachal Pradesh on 21 August, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No. 1942 of 2023
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Date of Decision: 21.08.2023
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Robin Patrwal ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
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Coram:
of
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1
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rt
For the Petitioner: Mr. Ajay Kochhar, Senior Advocate
with Mr. Anubhav Chopra and Mr.
Bhairav Gupta, Advocates.
For the Respondent: Mr. Rajan Kahol, Mr. Vishal
Panwar and Mr. B.C.Verma,
Additional Advocate Generals with
Mr. Mr. Ravi Chauhan, Deputy
Advocate General.
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Sandeep Sharma, J. (Oral)
Bail petitioner, namely Robin Patrwal, who is behind the bars since 18.6.2021, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No.81 of 2021, dated 18.06.2021, registered at police Station, Kangra, District Kangra, H.P., under Sections 302, 307, 452, 325, 504, 506, 147, 148, 149 and 201 of IPC.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 22/08/2023 20:34:46 :::CIS 22. Pursuant to order dated 2.08.2023, respondent-State has filed the status report and ASI Arun Kaushal has come present .
alongwith the record. Record perused and returned.
3. Story of the prosecution, as emerges from the record, is that on 18.6.2021, complainant namely, Pritam Chand in his statement recorded under Section 154 Cr.P.C alleged that on of 18.6.2021, at about 8.00 AM, while he was going towards house of Rakesh Kumar, persons namely, Kartar Chand, Ravinder Kumar, Rajinder Kumar, Mohini, Rubel, Asha, Nisha, Shankuntla and rt present bail petitioner were going towards the house of Rakesh Kumar. He also alleged that all the above named persons were carrying Darat (sickle) and dandas (sticks) and they after having opened the Iron Gate, entered the veranda and started giving beatings to Uma Shankar and Rakesh Kumar. He alleged that after having heard cries of aforesaid persons, persons namely, Satpal, Dharam Pal, Sheela Devi and Subhash Chand, also reached on the spot and tried to rescue persons namely, Uma Shankar and Rakesh Kumar. Complainant alleged that all the persons namely, Kartar Chand, Ravinder Kumar, Rajinder Kumar, Mohini, Rubel, Shankuntla and present bail petitioner gave beatings to Subhash Chand with Sickle and sticks and Rajinder Kumar gave blow of sickle on the head of Subhash Chand, as a consequence of which, he fell on the ground. Above named complainant also alleged that ::: Downloaded on - 22/08/2023 20:34:46 :::CIS 3 Kartar Chand, Ravinder Kumar, Rubel, Mohini and present bail petitioner were carrying sticks in their hands and person namely .
Ravinder Kumar gave blow of stick on the head of Rakesh Kumar, as result of which, he fell on the ground. Complainant alleged that Ms. Sonali daughter of Subhash Chand picked Subhash Chand from the ground and he was bleeding. On the basis of aforesaid of statement made by the complainant, FIR, as detailed hereinabove, came to be lodged against the persons named hereinabove.
Victim/injured Subhash Chand and Rakesh Kumar were taken to rt Dr. Rajinder Prashad Medical College, Tanda, but from there they were referred to PGI, Chandigarh. Since both the above named persons succumbed to their injuries, a case under Section 302 of IPC apart from the sections as detailed hereinabove came to be registered against the persons named in the FIR including the present bail petitioner. Since challan stands filed 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 for grant of regular bail.
4. While fairly admitting factum with regard to filing of the challan in the competent court of law, Mr. Rajan Kahol, learned Additional Advocate General, contends 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, ::: Downloaded on - 22/08/2023 20:34:46 :::CIS 4 he does not deserve any leniency. He submits that there is overwhelming evidence adduced on record by the prosecution .
suggestive of the fact that the bail petitioner was not only present on the spot, rather he alongwith other accused had come prepared with an intention to kill persons namely Uma Shankar and Rakesh Kumar. Learned Additional Advocate General further submits that of though postmortem report reveals that Subhash Chand and Rakesh Kumar died on account of injuries suffered by them on their head, but since four injuries were noticed on the head, it rt cannot be said that injuries on head were only caused by persons namely, Ravinder Kumar and Rajinder Kumar, rather it has come in the evidence that all the persons named in the FIR including the present bail petitioner gave merciless beatings to the deceased named hereinabove with sticks and as such, he does not deserve any leniency. Lastly, learned Additional Advocate General submits that in the event of petitioner being enlarged on bail, he may not only flee from justice but can again indulge in crime on account of their animosity with the family of the deceased. He further submits that after registration of the FIR, which is subject matter of the present case, fresh FIR has been lodged on account of fresh altercation/quarrel interse family members of deceased and family members of bail petitioner.
::: Downloaded on - 22/08/2023 20:34:46 :::CIS 55. Mr. Ajay Kochhar, learned Senior counsel representing the bail petitioner while refuting the submission made .
on behalf of learned Additional Advocate General, contend that as per own case of the investigating agency persons namely, Subhash Chand and Rakesh Kumar died on account of the injuries inflicted on their heads by persons namely Rajinder Kumar and of Ravinder Kumar and there is no evidence suggestive of the fact that the present bail petitioner gave beatings of any kind on the person of aforesaid deceased persons. He states that on similar rt facts and circumstances this Court has already granted bail to other four co-accused namely, Mohini Patrwal, Rubel Patrwal, Nisha Devi and Asha Devi vide orders dated 20th September, 2022 and 3rd November, 2022 passed in Cr.MP(M) Nos. 1618 and 1619 of 2021 and Cr.MP(M) Nos. 2306 and 2327 of 2022. Above named counsel further submit that bail petitioner is behind the bars for more than two years and till date, only ten prosecution witnesses out of 51 prosecution witnesses have been examined and as such, it would not be in the interest of justice to keep the present bail petitioner behind the bars for indefinite period during the trial. While placing reliance upon the judgments passed by the Hon'ble Apex Court in Criminal Appeal Nos. 152 of 2020, Prabhakar Tewari v.
State of UP and Anr (alongwith connected matter) and Criminal Appeal No. 98 of 2021, Union of India v. K.A. Najeeb, ::: Downloaded on - 22/08/2023 20:34:46 :::CIS 6 learned Senior counsel representing the bail petitioner submit that when there is every likelihood of delay in conclusion of the trial, .
court can order for enlargement of the bail petitioner on bail subject to stringent conditions.
6. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that of though complainant alleged that on 18.6.2021, persons namely, Kartar Chand, Ravinder Kumar, Rajinder Kumar, Mohini, Rubel, Shankuntla and present bail petitioner with an intention to cause rt injury to persons namely Uma Shankar and Rakesh Kumar entered their house while carrying darat(sickle) and sticks in their hands and thereafter they allegedly gave beatings to Uma Shankar and Rakesh Kumar, but it has specifically come in the evidence that persons namely Subhash Chand and Rakesh Kumar suffered injuries on their head after being hit by sickle on their head by person namely, Rajinder Kumar and Ravinder Kumar. As per status report accused Ravinder Kumar gave blow of stick on the head of Rakesh Kumar and person namely Rajinder Kumar gave below of sickle on the head of Subhash Chand. Since both the deceased persons, named hereinabove, died on account of head injury sustained by them on account of blow of darat and stick given on their head by the persons namely, Rajinder Kumar and Ravinder Kumar, it would be too premature at this stage to ::: Downloaded on - 22/08/2023 20:34:46 :::CIS 7 conclude complicity, if any, of the bail petitioner in the case at hand, who no doubt, as per the complainant had entered the house .
of Uma Shankar and Rakesh Kumar. Complainant has nowhere stated that bail petitioner gave beatings, if any, of any kind on the persons of Uma Shankar and Rakesh Kumar, rather persons namely Subhash Chand and Ravinder Kumar, who had come to of rescue Uma Shankar and Rakesh Kumar were given blow of darat on their head by persons namely Rajinder Kumar and Ravinder Kumar. rt
7. No doubt, as per status report present bail petitioner alongwith other accused were present on the spot and they had sticks in their hands, but since the specific case of the investigating agency is that persons namely Rajinder Kumar and Ravinder Kumar gave below of sickle and stick on the head of Subhash Chand and Rakesh Kumar, coupled with the fact that both the above named persons died on account of the head injuries, this Court sees no reason to let bail petitioner incarcerate in jail for indefinite period, especially when he has already suffered for more than two year. Investigation reveals that alleged incident happened on account of some old animosity interse family of the deceased and persons named in the FIR that too on account of some passage. As per investigation, all the accused named in the FIR with a common intention to cause injury or to kill Uma Shankar and ::: Downloaded on - 22/08/2023 20:34:46 :::CIS 8 Rakesh Kumar had gone to their place, but such common intention interse, if any, of the accused that too to kill person is yet to be .
established on record by the prosecution by leading cogent and convincing evidence. It is not in dispute that actually persons named in the FIR had gone to give beatings to persons namely Uma Shankar and Rakesh Kumar, but incident took ugly turn and of persons, who had actually come to rescue Uma Shankar and Rakesh Kumar were given beatings. Mere presence, if any, on the spot may not be sufficient to conclude/rule out complicity, if any, of rt the bail petitioner, especially in view of the specific assertion made in the status report that deceased namely Subhash Chand and Rakesh Kumar fell on the ground after having sustained head injuries on the account of the blow given on their head by persons namely, Rajinder Kumar and Ravinder Kumar by sickle and stick.
8. Though, case of the prosecution would be decided in totally of evidence collected on record by the investigating agency, but keeping in view the aforesaid glaring aspects of the matter, coupled with the fact that considerable time is likely to be consumed in the conclusion of the trial, this Court sees no reason to curtail the freedom of the bail petitioner for indefinite period during trial.
9. Hon'ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731, has held delay ::: Downloaded on - 22/08/2023 20:34:46 :::CIS 9 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.
of Union of India, (1996) 2 SCC 616) Accused, even in cases under TADA, have been released 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 rttrial 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).
10. 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."
11. Reliance is also placed upon judgment passed by Hon'ble Apex Court in Prabhakar Tewari v. State of U.P. and ::: Downloaded on - 22/08/2023 20:34:46 :::CIS 10 Anr, Criminal Appeal No. 152 of 2020, wherein it has been held as under:
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"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, of 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 rtagainst 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."
12. 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.
13. 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 ::: Downloaded on - 22/08/2023 20:34:46 :::CIS 11 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.
14. Recently, the Hon'ble Apex Court in Criminal Appeal of No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet rt to be 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 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 ::: Downloaded on - 22/08/2023 20:34:46 :::CIS 12 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 of 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, rt 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."
15. In Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49, Hon'ble Apex Court has held 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.
16. Needless to say, the 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 ::: Downloaded on - 22/08/2023 20:34:46 :::CIS 13 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 of crime.
17. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down rt the various principles to be kept in mind, while deciding petition for bail i.e. prima facie case against the accused, nature and gravity of offence, severity of punishment, likelihood of repeating of the offence by accused etc.
18. In view of above, bail petitioner has carved out a case for himself and as such, 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.1,00,000/- with one local surety in the like amount each, to the satisfaction of learned trial Court with 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 - 22/08/2023 20:34:46 :::CIS 14
(b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
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(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.
of
19. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating rt agency shall be free to move this Court for cancellation of the bail.
20. 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.
21. 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.
(Sandeep Sharma) Judge August 21,2023 (shankar) ::: Downloaded on - 22/08/2023 20:34:46 :::CIS