Himachal Pradesh High Court
Tej Singh vs State Of H.P on 15 June, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M)No.1390 of 2023 Date of Decision:15.06.2023 .
_______________________________________________________ Tej Singh .......Petitioner Versus State of H.P. ... Respondent _______________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 Yes.
For the Petitioner: Mr. Ashwani Kaundal, Advocate. For the Respondent: Mr. Rajan Kahol and Mr. B.C.Verma, Additional Advocate Generals with Mr. Rahul Thakur, and Mr. Ravi Chauhan, rDeputy Advocate Generals.
_______________________________________________________ Sandeep Sharma, Judge(oral):
Bail petitioner, namely Tej Singh alias Teja, who is behind the bars since 13.4.2021, has approached this Court in the instant proceedings filed under Section 439 Cr.P.C, for grant of regular bail in case FIR No. 115 of 2021, dated 9.4.2021 under Sections 458, 342, 395, 506, 412, 201 of IPC, Section 25(a)-27-54-59 of the Arms Act and Section 3 of PDP Act, registered at police Station, Nurpur, District Kangra, H.P.
2. Respondent-State has filed status report and HC Karam Singh has also come present alongwith the record. Record perused and returned.
1Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 16/06/2023 20:32:55 :::CIS 23. Close scrutiny of the status report/record reveals that on 9.4.2021, complainant Raman Kumar, Pump Operator, Nurpur Town, Scheme Nakki Khad got his statement recorded under Section 154 .
Cr.P.C. alleging therein that he is working as Pump Operator, in Jal Shakti Department (I &PH) at Nakki Pump House. He alleged that he alongwith person, namely Prem Singh and Ravi Kumar perform duties of pump operators on day and night basis. He alleged that on 8.4.2021, while he had come to the pump house for his duty and was sitting on the cot in the nearby room, at about 10.30 PM, some unknown persons came from outside and started pushing the door of his room. He alleged that before opening the door, he asked the persons as to who are they, but few unknown persons after having broken the door entered the room and asked him to sit on the cot silently. He alleged that one of the person was having "Khokhari", whereas another one was having "Katta" like weapon with him. He alleged that all the persons had worn masks and asked him that they had come to commit theft. Complainant alleged that unknown persons scared him, torn his bed sheet and his both hands were tied. He alleged that one of the person entered the premises and shut down the electricity of the pump house and thereafter removed certain parts of machinery and loaded the same in vehicle. He also alleged that his mobile and keys of the car were also taken by them. Complainant ::: Downloaded on - 16/06/2023 20:32:55 :::CIS 3 alleged that one boy, who was having base-ball with him, gave blow of base ball on his legs, as a result of which, he sustained injuries. In the aforesaid background, FIR, as detailed hereinabove, came to be .
lodged against the petitioner. Since challan stands filed in the competent court of law and nothing remains to be recovered from the petitioner, coupled with the fact that till date prosecution has been able to examine 17 witnesses out of 55 witnesses, prayer has been made on behalf of the petitioner for grant of bail on the ground of inordinate delay in conclusion of the trial.
4. Mr. Rajan Kahol, learned Additional Advocate General, while fairly acknowledging factum with regard to filing of Challan in the competent court of law, contends that though nothing remains to be recovered from the bail petitioner, but keeping in view gravity of the offence alleged to have been committed by him, he does not deserve any leniency. He submits that there is overwhelming evidence adduced on record suggestive of the fact that bail petitioner in connivance with other co-accused not only gave beatings to the complainant, named hereinabove, but also committed theft of government property, i.e. copper. While referring to the status report, learned Additional Advocate General submits that in past two cases already stand registered against the petitioner, which fact clearly suggests that he is hardened criminal, who in the event of being ::: Downloaded on - 16/06/2023 20:32:55 :::CIS 4 enlarged on bail may not only flee from justice but may again indulge in these activities.
5. Having heard learned counsel for the parties and perused .
material available on record, this court finds that after the alleged incident one Omni Van and one Pick-up had passed through Toll Barrier Nakki. Persons present on the toll categorically disclosed factum with regard to passing of pick-up No.HP-67-6526 as well as Van on the date of alleged incident. Similarly, Dump data of place of incident indicated factum with regard to presence of accused, named in the FIR, at the place of theft. From the footage of CCTV Camera, both the Pick-up as well as Van had passed through Matour Chowk.
6. Leaving everything aside, 4.650 Kg copper wire of induction was recovered from shop of co-accused Madan Kumar at the behest of present bail petitioner and other accused named in the FIR. During investigation, co-accused Madan Lal disclosed that after purchasing stolen articles, he separated the copper and iron from the motors and thereafter sold the same to A.K. Steel Firm, at Tahliwal Una. There is overwhelming evidence suggestive of the fact that co-
accused including present petitioner after having entered pump house stolen the public property and as such, this Court is not persuaded to agree with Mr. Ashwani Kaundal, learned counsel representing the petitioner that petitioner has been falsely implicated.
::: Downloaded on - 16/06/2023 20:32:55 :::CIS 5However, having taken note of the fact that bail petitioner is already behind the bars for more than two years, coupled with the fact that only 17 prosecution witnesses out of 55 have been examined, prayer .
made on behalf of the petitioner for grant of bail on the ground of in ordinate delay in conclusion of the trial deserves to be considered.
7. No doubt, in the instant case, petitioner is accused of having indulged in heinous crime having adverse impact upon the society but mere gravity of offence cannot be the sole criteria to reject the bail rather certain other factors are also required to be taken into consideration. Reliance in this regard is placed upon the judgment passed by this Court in Jeet Ram versus State of H.P., Latest HLJ 2003(HP) 23, wherein it has been held as under:-
"7. As is the case of the prosecution, the only role attributed to the accused persons is that they caught hold of the deceased and their co-accused Savitri and Bimla pelted stones at him and thereafter Bhupender gave him the fatal blow with a 'Draft'. Prima facie it is difficult to believe that when a person is caught hold of by three persons two other persons are pelting stones at him, then such person and those persons who have caught hold of him will not sustain any injury. Therefore, the version regarding pelt ing of stones and holding of the deceased is prima facie clouded by suspicion as none of the accused persons who are alleged to have caught hold of the deceased while co- accused Savitri and Bimla were pelting stones at the deceased did not receive any injury whatsoever and no injury caused by the pelting of stones was found on the per son of the deceased. Mere catching hold of the deceased by the accused persons may not necessarily lead to the conclusion that they haw the common object of killing the deceased as the applicability of Section 149, IPC, In the facts of the ease, is a debatable question.
8. In Thakar Singh v. State of Punjab, 1969 Cur LJ 810 (relied upon by the learned Counsel for the accused persons to substantiate his contention) wherein the case of the prosecution was that accused Niranjan Singh 10 caught hold ::: Downloaded on - 16/06/2023 20:32:55 :::CIS 6 of the deceased and fell him down and accused Thakar Singh throttled his neck, the Punjab and Haryana High Court held as under :
"........ It is not a case in which it can be legitimately contended on behalf of the prosecution that there was any pre-planned common intention on the part of .
both Niranjan Singh and his father Thakar Singh in throttling the deceased. There could be no such intention on the part of Niranjan Singh even in executing his act of catching hold of the boy by the arms and throwing him down on the ground. The act of throttling by Thakar Singh followed per se and was independent of the act of throwing the boy down by Niranjan Singh. Thus, there is no community of intention in the act performed by Niranjan Singh and that executed by Thakar Singh. The two are distinct ones and one has nothing to do with the other. No intention on the part of Niranjan Singh from his act could be inferred in common with the intention of throttling by Thakar Singh, which followed later on. It is not a case in which it could be held that throwing down was committed by Niranjan Singh in r furtherance of the common intention of throttling by Thakar Singh. Thus, the applicability of Section 34 of the Indian Penal Code is uncalled for. Niranjan Singh appellant could not be held vicariously liable by virtue of that Section. This is additional ground of his being entitled to acquittal."
9. In Jaspal Singh v. State of Haryana, 1986 (2) Recent CR 582 (2) wherein one of the accused caught hold of the deceased while armed with a stick but did not cause any injury to the deceased whereas his co-accused caused injuries to the deceased which resulted in his death, the Punjab and Haryana High Court granted bail to the accused who had only caught hold of the deceased while on the following premise :
"Though the motive was with the petitioner and he caught hold of the deceased while armed with a stick, he did, not cause any injury to the deceased. Rather his co- accused did cause injuries to the deceased which resulted in his death. In this situation, applicability of Section 34 Indian Penal Code is a moot point. It would thus be apt that the petitioner gets the concession of bail."
10. In Kuldip Singh v. State of Punjab, 1994 (3) Rec Cri R 137 :
(1994 Cri LJ 2201) (SC) where one of the accused inflicted the injury on the head of the injured with sharp edged weapon and the second accused gave 'Lathi' blow on his shoulder causing simple injury allegedly with the common intention of accused in an attempt to commit the murder of the injured, the Hon'ble Supreme Court held that the injury on the head of the injured was serious one and ::: Downloaded on - 16/06/2023 20:32:55 :::CIS 7 proved to be grievous, therefore, the offence under Section 307, I.P.C. is made out against Kuldip Singh who caused 11 such injury but in so far as the other co-accused is concerned, he inflicted only one blow on the shoulder with the 'Lathi' causing swelling, therefore, it could not be said that he shared the common intention along with the Kuldip Singh in attempt to commit the murder of the .
injured."
"12.There is no doubt that offence punishable under Section 302, I.P.C. is a grave offence for which the extreme penalty of death has been provided in law. However, the mere gravity of the offence and the severity of punishment is no ground for rejection of bail, while deciding the question of grant or refusal of the bail, other factors such as the nature of evidence, the part played by the accused in the commission of the 6f-fence and the likelihood of the accused absconding or, tampering with prosecution evidence has also to be taken into account".
8. Since, it took almost two years for prosecution to examine 17 witnesses, there is every likelihood of further delay in conclusion of trial. In case petitioner is permitted to incarcerate in jail for indefinite period during trial, it would amount to pre-trial conviction, which is not permissible under law. Otherwise also, speedy trial has been held to be fundamental right, violation thereof has been held to be in clear cut violation of Article 21 of the Constitution of India.
9. By now it is well settled that speedy trial is legal right of the accused and one cannot be made to suffer indefinitely for delay in trial and as such, this Court sees no reason to keep the bail petitioner behind the bars for indefinite period during trial. Delay in trial has been held to be in violation of the right guaranteed under article 21 of Constitution of India. Reliance is placed on judgment passed by the Hon'ble Apex Court in case titled Umarmia Alias Mamumia v. State ::: Downloaded on - 16/06/2023 20:32:55 :::CIS 8 of Gujarat, (2017) 2 SCC 731, relevant para whereof has been reproduced herein below:-
"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 In- dia. (See: Supreme Court Legal Aid Committee v. Un- ion 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 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).
10. 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.
11. Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr.,decided on 6.2.2018, has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty.
::: Downloaded on - 16/06/2023 20:32:55 :::CIS 9Hon'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 being victimized, it would be a factor that a judge would need to consider in an 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 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 ::: Downloaded on - 16/06/2023 20:32:55 :::CIS 10 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, r1973.
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
12. 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 ::: Downloaded on - 16/06/2023 20:32:55 :::CIS 11 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."
13. 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, 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.
14. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down ::: Downloaded on - 16/06/2023 20:32:55 :::CIS 12 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 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.
15. 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.5,00,000/- with two sureties in the like amount, to the satisfaction of the learned trial Court, 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;
(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 ::: Downloaded on - 16/06/2023 20:32:55 :::CIS 13 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.
.
16. 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.
17. 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.
18. 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 June 15,2023 (shankar) ::: Downloaded on - 16/06/2023 20:32:55 :::CIS