Himachal Pradesh High Court
Sukhbir Singh vs State Of Himachal Pradesh on 5 October, 2020
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No.1610 of 2020 Date of Decision:5.10.2020 .
__________________________________________________________ Sukhbir Singh ........ Petitioner Versus State of Himachal Pradesh .....Respondent.
__________________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioner: Mr. Manoj Pathak, Advocate, through video-conferencing For the Respondent: Mr. Sudhir Bhatnagar and Mr. Arvind Sharma, Additional Advocate Generals, with Mr. Kunal Thakur, Deputy Advocate General, through video-conferencing. __________________________________________________________ Sandeep Sharma, Judge(oral):
Bail petitioner namely, Sukhbir Singh, who is behind the bars since 17.01.2019, 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.11/2019, dated 7.1.2019, under Sections 307, 392, 120-B of IPC and Section 25-54-59 of the Arms Act, registered at police Station, Baddi, District Solan, Himachal Pradesh.
2. Respondent-State has filed status report on the basis of the investigation carried out by the investigating agency, perusal whereof reveals that on 7.1.2019, a complaint came to be lodged at the behest of the complainant namely, Amit Kumar, who telephonically informed 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 06/10/2020 20:18:30 :::HCHP 2police station Baddi that at a place called Sandoli Gurudwara, two motorcycle riders after having fired at a person riding on motorcycle have fled away towards Nalagarh. Police after having received aforesaid .
information though made an attempt to record the statement of injured , but since his condition was critical, police recorded the statement of above named complainant Amit Kumar under Section 154 Cr.P.C, who alleged that on 7.12019, person carrying a bag on his shoulder was riding on motorcycle bearing registration No.HP-12-G-6402 at a place called Malpur Bridge and the suddenly, he saw that two person going towards Baddi riding on motorcycle with covered faces were trying to hold the rider of earlier motorcycle. Complainant further alleged that riders of silver coloured motorcycle were seen by him coming back at Chinar Hotel, whereas rider (victim) of motorcycle bearing registration No.HP-12-G-6402 was lying on the road. He further disclosed to the police that on inquiry, it was revealed to him by person present on the spot that rider of the silver coloured motorcycle fired and snatched bag containing 7.57 lac rupees. In the aforesaid background, FIR detailed hereinabove, came to be lodged at police station, Baddi, against the unknown persons. However, subsequently, on the basis of the CCTV footage and dump data, police apprehended the accused namely Sukhbir Singh, present bail petitioner, Major Singh and Hardeep Singh alias Rimpa and allegedly recovered sum of Rs. 3, 19,000/- from them.
Above named persons during the investigation disclosed that they had ::: Downloaded on - 06/10/2020 20:18:30 :::HCHP 3 taken pistol from the co-accused Taj Mohammad for sum of Rs. 1, 04,000/-. Besides above, accused named above also disclosed to the police that Jagdeep Khan had disclosed to them that person namely Lal .
Chand (victim) usually carries cash and as such, they in connivance with each other robbed the injured. On the basis of aforesaid statement made by the accused named in the FIR, Jagdeep Khan was also arrested on 17.1.2019, but now he stands enlarged on bail by this court vide order dated 14.10.2019 passed in Cr.MP(M) No.1688 of 2019. Co-accused Taj Mohammad also stands enlarged on bail vide order dated 28.8.2019 passed by this Court in Cr.MP(M) No.1564 of 2019, whereas three main accused namely Major Singh, Hardeep Singh alias Rimpa and present bail petitioner are behind the bars.
3. Mr. Kunal Thakur, learned Deputy Advocate General while fairly admitting the factum with regard to filing of the challan in the competent court of law, contends that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of the offence alleged to have been committed by him, he does deserve to be enlarged on bail. Learned Deputy Advocate General further contends that there is overwhelming evidence available on record suggestive of the fact that present bail petitioner is the main king pin, who in connivance with other co-accused not only snatched 7.57 lacs rupees from the victim, but also made an attempt to kill victim/injured and as such, it would not be in the interest of justice to enlarge him on bail at ::: Downloaded on - 06/10/2020 20:18:30 :::HCHP 4 this stage. Lastly, learned Deputy Advocate General contends that as per the information collected on record one case under Section 379 of IPC already stands registered against the present bail petitioner in the .
State of Punjab and as such, having taken note of his antecedents, prayer made on behalf of the bail petitioner may not be accepted.
4. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that on the date of alleged incident present bail petitioner alongwith two co-accused namely, Major Singh and Hardeep Singh alias Rimpa not only snatched 7.57 lacs rupees , but also fired at the victim/injured, as a consequence of which, he suffered serious injuries. Though, injured stands discharged from the hospital, but record reveals injuries suffered by him in the alleged incident have been opined to be grievous in nature. As per the status report, sum of Rs.3,19,000/- allegedly snatched by the bail petitioner alongwith other two co-accused stands recovered, whereas remaining money has been already spent by bail petitioner and two other co-accused for purchasing of weapon as well as for their own use.
Besides above, this Court also finds that police also recovered sum of Rs. 1,04,000/- and Rs. 30,000/- respectively from other two co-accused namely, Taj Mohammad and Jagdeep Khan and as such, substantial amount has been already recovered by the Investigating Agency.
5. No doubt, as per the status report present bail petitioner in connivance with other co-accused have indulged in serious crime having ::: Downloaded on - 06/10/2020 20:18:30 :::HCHP 5 adverse impact on the society, but guilt, if any, of him is yet to be established on record by the Investigating Agency by leading cogent and convincing evidence and as such, it would not be fair to curtail his .
freedom for indefinite period during the trial, especially when nothing remains to be recovered from him. As per status report one case under Section 379 of IPC stands registered against the bail petitioner in the State of Punjab, but guilt, if any, of him in that case is yet to be established on record and as such, mere FIR in the State of Punjab cannot be made basis in this case to deny bail at this stage, wherein admittedly nothing remains to be recovered from him. Two co-accused namely, Taj Mohammad and Jagdeep Khan already stand enlarged on bail and as such, this Court sees no reason to let bail petitioner incarcerate in jail for indefinite period during trial, especially when he has already suffered for more than 21 months.
6. Though, challan in the case stands filed, but it appears that till date evidence has not commenced as such, this Court can presume that considerable time would be consumed in the conclusion of the trial, which otherwise is likely to be further delayed on account of Covid-19.
Apprehension expressed by learned Deputy 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, as has been fairly admitted by learned counsel representing the petitioner. No doubt, medical opinion rendered on record by the Medical Officer suggests ::: Downloaded on - 06/10/2020 20:18:30 :::HCHP 6 that victim suffered grievous injury in the alleged incident, but since victim stands discharged from the hospital and is hale and hearty, this Court sees no impediment in accepting the prayer made in the instant petition for grant .
of bail.
7. It has been repeatedly held by Hon'ble Apex Court as well as this Court in catena of cases that one is deemed to be innocent till the time his /her guilt is not proved, in accordance with law. In the case at hand, the guilt, if any, of the bail petitioner is yet to be proved, in accordance with law.
8. 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 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. 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 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 ::: Downloaded on - 06/10/2020 20:18:30 :::HCHP 7 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 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 ::: Downloaded on - 06/10/2020 20:18:30 :::HCHP 8 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 .
9. 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."
10. 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, ::: Downloaded on - 06/10/2020 20:18:30 :::HCHP 9 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.
11. The Hon'ble Apex Court in Prasanta Kumar Sarkar v.
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 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.
12. Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing personal bond in the sum of Rs. 2, 00,000/- (Rs. Two lac) with two local sureties in the like amount, to the satisfaction of the 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 - 06/10/2020 20:18:30 :::HCHP 10
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 .
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.
13. It is clarified that if the petitioner misuses his 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.
14. 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 bail petition stands disposed of accordingly.
(Sandeep Sharma), Judge October 5,2020 (shankar) ::: Downloaded on - 06/10/2020 20:18:30 :::HCHP