Himachal Pradesh High Court
_________________________________________________________ vs State Of Himachal Pradesh on 28 October, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MP (M) No.2128 of 2024 Decided on : 28.10.2024 _________________________________________________________ Kashmira Singh .......Petitioner Versus State of Himachal Pradesh ......Respondent For the petitioner: Mr. Amrinder Singh Rana, Advocate For the respondent: Mr. Vishav Deep Sharma, Additional Advocate General.
Coram {{{{ Hon'ble Mr. Justice Ranjan Sharma, Judge Whether approved for reporting?
Ranjan Sharma, Judge Bail petitioner [Kashmira Singh] has come up before this Court, seeking pre-arrest bail under Section 482 of the Bhartiya Nagrik Suraksha Sanhita [hereinafter referred to as 'B.N.S.S'], originated from FIR No.139 of 2024, dated 28.05.2024, under Sections 341, 147, 149, 186, 353, 379, 382 and 504 of Indian -2- Penal Code [hereinafter referred to as 'IPC'] and Section 21 (1) of the Mines Act, 1952 registered at Police Station Nalagarh, District Solan [H.P.].
FACTUAL MATRIX:
2. Case set up by Learned Counsel Mr. Amrinder Singh Rana, Advocate, assisted by Ms. Kamlesh Kumari, Advocate, in this petition is that on 28.05.2024 a police party headed by Constable Avtar Dhiman was deputed in ALFA-V duty in the security of Superintendent of Police Baddi and while they were on routine night patrolling, the SHO also joined them at about 12:30 AM when, they found a JCB machine indulging in illicit mining at Rampur Khad.
It is further submitted that the aforesaid JCB machine was confiscated by Constable Avtar Dhiman on the instructions of SHO and the said confiscated machine was being taken to Police Post Baghari. It is also averred that as soon as the police party reached along with JCB machine near the house of Pradhan Bairchha then, Ex-Pradhan namely Joginder Pal @ Jindu stopped -3- the JCB machine. It is further alleged that it was at the instance of the accused Joginder Pal @ Jindu, that he summoned a white colour car, wherein some persons came to the spot and started misbehaving with the police personnel and took the custody of the JCB machine from the custody of the police. It is further averred that the main accused, Joginder Pal @ Jindu, hurled abuses on the police personnel including SHO on the said night. It is further averred that this incident lead to the registration of FIR No.139/2024 dated 28.05.2024, with Police Station Nalagarh.
2(ii). Instant bail petition narrate that the bail petitioner had filed anticipatory bail applications before this Court vide Cr.MP(M) Nos.1151 of 2024, which were withdrawn on 31.05.2024. Feeling aggrieved, the bail petitioner moved to Learned Trial Court i.e. Learned Additional Sessions Judge, Nalagarh [HP], by way of fresh bail application which was also dismissed on 25.06.2024 [Annexure P-1].
2(iii) It is averred by the bail petitioner, that he has -4- been falsely implicated and he has no connection with the commission of any offence as detailed in FIR. It is averred that the Learned Additional Sessions Judge, Nalagarh dismissed the bail application on 25.06.2024, by recording a finding in Para 10 of the bail order, that the vehicle [No.PB48E-2187] is yet to be recovered from the petitioner. The bail petitioner has furnished an undertaking that he is ready and willing to join the investigation and cooperate with the investigating agency. It is averred that he shall not cause any inducement, threat or promise to any person, persons or witnesses who are acquainted with the facts of the case in any manner. Another undertaking has been furnished that the bail petitioner has deep root in the society and he participated in the investigation and the consequential trial, if any. In Para 6 it is submitted that two co-accused namely, Balwinder Kaur and main accused Joginder Pal @ Jindu, who was the main accused have been enlarged on anticipatory bail by this Court on 31.07.2024 and 24.08.2024, respectively. -5- 2(v). It is further averred that bail petitioner is innocent and has been falsely implicated and there is no direct or indirect evidence connecting him with the alleged offence. It is further averred that the bail petitioner belongs to a respectable family and has deep roots in the society and there is no question of his fleeing away from the investigation or the trial. It is further averred that the investigation is over and nothing incriminating is to be recovered by the police from the bail petitioner. It is further averred that the bail petitioner has been falsely roped and he has subsequently furnished undertaking before this Court that he shall join the investigation and shall not cause any inducement, threat or promise to any person or persons acquainted with the facts of the case.
It is in this background, that the petitioner has filed the instant bail petition.
PROCEEDINGS BEFORE THIS COURT:
3. The instant bail application Cr.MP(M) No.2128 of 2024 was listed before this Court on -6- 20.09.2024 when, this Court issued notice to the Respondent-State Authorities to furnish the Status Report. Keeping in view the averments made in the bail application, this Court granted interim bail to the bail petitioner on 20.09.2024. .
The matter was listed on 15.10.2024, when, the State Authorities filed the Status Report dated 15.10.2024 on instructions of Station House Officer, Police Station Nalagarh, District Baddi (HP) and copy thereof, was furnished to the Learned Counsel for the petitioner who prayed for time to go through the Status Report and make submissions. Accordingly, matter was listed on 28.10.2024 when, with the consent of the parties, the same was finally heard by this Court.
STAND OF STATE AUTHORITIES:
4. Perusal of the Status Report dated 15.10.2024, filed by the State Authorities, reiterates the averments made by the bail petitioner in the instant bail application. The Status Report reveals that the entire incident occurred on 28.05.2024 at about 12:30 in -7- the night when, a JCB was confiscated by the patrolling police party, namely Avtar Singh Dhiman in Rampur Khud, in Baddi/Nalagarh.
4(i) The Status Report further indicates that after confiscation, while the JCB was being taken by two police personnel namely Avtar Singh Dhiman and Sunil Kumar from Rampur Khud to Police Post Baghari, the same was intersected on reaching village Bairchha by the Joginder Pal @ Jindu. Status Report indicates that on the call of the co-accused Joginder Pal, four accused persons namely Hem Raj, Laj Ram, Ram Ji and Kashmira Singh @ Bittu, [bail petitioner], came in a car bearing Registration No.PB-48E-2187 and thereafter all the accused, including the bail petitioner alongwith their relatives and local residents of Village Bairchha started misbehaving with the police personnel, hurled abuses on the police, including SHO.
In this background, the Learned State Counsel has opposed the bail petition and prayed for the dismissal of the bail application.
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5. Heard, Mr. Amrinder Singh Rana, Learned Counsel, for the bail petitioner and Mr. Vishav Deep Sharma, Learned Additional Advocate General, for the respondent-State.
STATUTORY PROVISIONS:
6. Before dealing with the bail petition, it is necessary to take note of the provisions of Sections 341, 147, 149, 186, 353, 379, 382, 504 of IPC and Section 21(1) of the Mines Act, which read as under:-
"Section 341 Indian Penal Code:
341. Punishment for wrongful restraint:
Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
Section 147 Indian Penal Code:
147. Punishment for rioting:-
Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 149 Indian Penal Code:
149. Every member of unlawful assembly guilty of offence committed in prosecution of common object:
If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be -9- committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
Section 186 Indian Penal Code:
186. Obstructing public servant in discharge of public functions:
Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
Section 353 Indian Penal Code:
353. Assault or criminal force to deter public servant from discharge of his duty:
Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person to the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 379 Indian Penal Code:
379. Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Section 382 Indian Penal Code:
382. Theft after preparation made for causing death, hurt or restraint in order to the committing of the theft.--
382. Whoever commits theft, having made preparation for causing death, or hurt, or restraint, or fear of death, or of hurt, or of restraint, to any person, in order to the
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committing of such theft, or in order to the effecting of his escape after the committing of such theft, or in order to the retaining of property taken by such theft, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Section 504 Indian Penal Code:
504. Intentional insult with intent to provoke breach of the peace:
Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 21(1) of the Mines Act: 21(1) Medical appliances:
In every mine there shall be provided and maintained so as to be readily accessible during all working hours such number of first-aid boxes or cupboards equipped with such contents as may be prescribed.
7. Notably, the claim of the suspect-accused for pre-arrest or post-arrest bail-regular bail is to be examined/tested within the parameters prescribed in the Code of Criminal Procedure and also the broad para-meters mandated by the Hon'ble Supreme Court while dealing with the claim for bail in Gurbaksh Singh Sibbia versus State of Punjab (1980) 2 SCC 565, Ram Govind Upadhyay versus Sudarshan
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Singh (2002) 3 SCC 598; Kalyan Chandra Sarkar versus Rajesh Ranjan, (2004) 7 SCC 528; Prasanta Kumar Sarkar versus Ashish Chatterjee, (2010) 14 SCC 496; reiterated in P. Chidambaram versus Directorate of Enforcement, (2019) 9 SCC 24, mandating that the bail {anticipatory or regular} is to be granted where the case is frivolous or groundless and no prima facie or reasonable grounds exist which lead to believe or point out towards the accusation and even these parameters for bail have been reiterated in Sushila Aggarwal versus State-NCT Delhi, (2020) 5 SCC 01.
8. While dealing with the case for grant of bail, three judges bench of the Hon'ble Supreme Court, after reiterating the broad parameters, has mandated in Deepak Yadav versus State of Uttar Pradesh, (2022) 8 SCC 559, in Para-25 that the "nature of crime" has a huge relevancy, while considering the claim for bail.
9. In the case of Ansar Ahmad versus State
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of Uttar Pradesh, 2023 SCC Online SC 974, the Hon'ble Supreme Court had expanded the horizon of the broad parameters, which are to be primarily taken into account, for considering the claim for regular bail or anticipatory bail as under:
"11. Mr. R. Basant, the learned Senior Counsel appearing for one of the private respondents that the Court while granting bail is not required to give detailed reasons touching the merits or de-merits of the prosecution case as any such observation made by the Court in a bail matter can unwittingly cause prejudice to the prosecution or the accused at a later stage. The settled proposition of law, in our considered opinion, is that the order granting bail should reflect the judicial application of mind taking into consideration the well-known parameters including:
(i) The nature of the accusation weighing in the gravity and severity of the offence;
(ii) The severity of punishment;
(iii) The position or status of the accused, i.e. whether the accused can exercise influence on the victim and the witnesses or not;
(iv) Likelihood of accused to approach or try to approach the victims/ witnesses;
(v) Likelihood of accused absconding from proceedings;
(vi) Possibility of accused tampering with evidence;
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(vii) Obstructing or attempting to obstruct the due course of justice;
(viii) Possibility of repetition of offence if left out on bail;
(ix) The prima facie satisfaction of the court in support of the charge including frivolity of the charge;
(x) The different and distinct facts of each case and nature of substantive and corroborative evidence.
12. We hasten to add that there can be several other relevant factors which, depending upon the peculiar facts and circumstances of a case, would be required to be kept in mind while granting or refusing bail to an accused. It may be difficult to illustrate all such circumstances, for there cannot be any straight jacket formula for exercising the discretionary jurisdiction vested in a Court under Sections 438 and 439 respectively of the Cr. PC, as the case may be."
In normal parlance, the general principle of law is that while considering the prayer for bail [pre-arrest bail or regular bail], a prima facie opinion is to gathered as to whether reasonable grounds exist pointing towards the accusation or whether the accusation is frivolous and groundless with the object of either injuring or humiliating or whether a person has falsely roped in the crime needs to be tested
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in background of self-imposed restrains or the broad parameters mandated by law, as referred to herein above.
10. This Court is also conscious of the fact that as per the mandate of law, in Criminal Appeal No.3840 of 2023, titled as Saumya Churasia versus Directorate of Enforcement, decided on 14.12.2023, while considering the prayer for bail, a Court is not required to weigh the evidence collected by the Investigating Agency meticulously, nonetheless, the Court should keep in mind the nature of accusation, nature of evidence collected in support thereof, severity of punishment prescribed for alleged offences, character of accused, circumstances which are peculiar to the accused, the reasonable possibility of securing presence of accused during the trial, reasonable apprehension of evidence being tampered with or any possibility of causing an inducement, threat or promise to either the witnesses or complainant or victim by carving out a balance between the liberty of an accused
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vis-à-vis the societal interests of the public-State at large.
In this background, while testing the claim for bail, the Court, is required to form a prima facie opinion in the context of the broad-parameters referred to above, without delving into the evidence on merits, as it may tend to prejudice the rights of the accused as well as the prosecution.
ANALYSIS OF CLAIM IN INSTANT CASE:
11. After taking into account the entirety of facts and circumstances, statutory provisions and the mandate of law and on considering the material on record, including the Status Report this Court is of the considered view that the interim bail granted to the petitioner on 20.09.2024 is made absolute, and the petitioner is enlarged on bail, for the following reasons:-
11(i) The material on record, does not points out any prima facie accusation, against the bail petitioner.
11(ii) The material on record, including the Status
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Report dated 15.10.2024, does not indicate that reasonable grounds exists for believing the accusation against the bail petitioner.
The Status Report indicates that the only accusation, spelt out in the Status Report dated
15.10.2024 by the State-Police Authorities is that while the confiscated JCB was being taken by the police personnel, from Rampur Khud to Police Post Baghari on 28.05.2024, the same was allegedly intersected by Joginder Pal and thereafter at his call four other persons namely, Hem Raj, Laj Ram, Ram Ji and Kashmira Singh [bail petitioner] reached the spot, who was alleged to have taken away the confiscated JCB from the custody of the police forcibly and who had hurled abuses entered into altercation and caused obstruction in performance of duty by the above police personnel.
In these circumstances, once the Status Report does not indicate that the petitioner [Kashmira Singh], has evaded investigation as and when called or is required for custodial interrogation by the police. The
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fact as to whether the petitioner had resorted to wrongful restraint [Section 341 IPC] or assault or criminal force on police personnel [Section 353 IPC] or had dishonestly removed property from the custody of police personnel [Section 379 IPC] or hurling abuses on police personnel [Section 504 IPC] or was involved for accusation under Section 21 of the Mines Act, is a matter to be examined; tested and proved during the trial, coupled with the fact that the Investigation is complete and nothing is to be recovered from the petitioner. In these circumstances, this Court, extends the concession of pre-arrest bail to the petitioner.
11(iii) Claim of the bail petitioner carries weight for the reason, firstly, that FIR was registered on 28.05.2024 and despite dismissal of earlier bail application by Learned Additional Sessions Judge, Nalagarh on 25.06.2024, no consequential action has been taken by the police against them, as yet; and secondly, earlier bail application was dismissed by Learned Additional Sessions Judge, by recording a finding in Para 10 that
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the vehicle [No.PB48E-2187] allegedly used by bail petitioner is yet to be recovered, which appears to be perverse when, the Learned Counsel for the petitioner has placed on record a copy of release order dated 28.05.2024 [Taken on record], which reveals that aforesaid vehicle stood recovered by police and was released on Sapurdari by the Court; and thirdly, since two other accused namely, Balwinder Kaur and main accused Joginder Pal @ Jindu have been released on bail by this Court, therefore, the petitioner who assert to have no role in the matter needs to be accorded interim protection by this Court.
PARITY WHEN MAIN ACCUSED RELEASED ON BAIL 11(iv) Claim for bail needs to be accepted when, two other accused, Balwinder Kaur and main accused Joginder Pal @ Jindu have been released on bail in Cr.M.P(M) No.1718 of 2018, titled as Joginder Pal versus State of Himachal Pradesh, dated 24.08.2024, then, once the role of the petitioner is highly doubtful and the
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allegations are yet to be proved against the petitioner, therefore, on the principle of parity, the bail petitioner [Kashmira Singh], deserves to be enlarged on bail.
PRESUMPTION OF INNOCENCE-CLAIM FOR BAIL 11(v) Implicating the petitioner on the basis of mere suspicion or conjectures when, the accusation is yet to be proved during the trial and till then the petitioner is to be treated as innocent in the eyes of law. Denial of bail can neither be punitive nor preventative, as per the mandate of law of the Hon'ble Supreme Court of India in Guddan alias Roop Narayan Versus State of Rajasthan, 2023 SCC OnLine SC 1242, in following terms:-
"11. In the case of Sanjay Chandra V. Central Bureau of Investigation, (2012) 1 SCC 40, while hearing a bail Application in a case of an alleged economic offence, this court held that the object of bail is neither punitive nor preventative. It was observed as under:
"21.In bail applications, generally, it has been laid down from the earliest times that 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,
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unless it is 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.
23. 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 purpose of giving him a taste of imprisonment as a lesson.
25. The provisions of CrPC confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trial or in appeal against convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, is a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognised, then it may lead to chaotic situation and would jeopardise the personal liberty of an individual.
27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."
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12. Further, in the case of Sandeep Jain v. National Capital Territory of Delhi, (2000) 2 SCC 66, this Court, while hearing a bail application held that conditions for grant of bail cannot become so onerous that their existence itself is tantamount to refusal of bail. This Court held as under:
"We are unable to appreciate even the first order passed by the Metropolitan Magistrate imposing the onerous condition that an accused at the FIR stage should pay a huge sum of Rs. 2 lakhs to be set at liberty. If he had paid it is a different matter. But the fact that he was not able to pay that amount and in default thereof he is to languish in jail for more than 10 months now, is sufficient indication that he was unable to make up the amount. Can he be detained in custody endlessly for his inability to pay the amount in the range of Rs.2 lakhs? If the cheques issued by his surety were dishonoured, the Court could perhaps have taken it as a ground to suggest to the payee of the cheques to resort to the legal remedies provided by law.
Similarly if the Court was dissatisfied with the conduct of the surety as for his failure to raise funds for honouring the cheques issued by him, the Court could have directed the appellant to substitute him with another surety. But to keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is not only hard but improper. It must be remembered that the Court has not even come to the conclusion that the allegations made in the FIR are true. That can be decided only when the trial concludes, if the case is charge-sheeted by the police."
REFORMATIVE INTENT AND CLAIM FOR BAIL:
11(vi). While dealing with the concept of bail which
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has humanist and reformative intent coupled with the fact that the personal liberty of an accused under Article 21 of the Constitution of India is sacrosanct, the Hon'ble Supreme Court, in Criminal Appeal No.2787 of 2024, titled as Javed Gulam Nabi Shaikh Versus State of Maharashtra and Another, held as under:-
"18 Criminals are not born out but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents, juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations.
ADHERANCE TO PRINCIPLE:- BAIL IS RULE:
11(vii). Depriving the petitioner the concession of bail shall negate the principle that 'bail is a rule and jail is an exception', as outlined by the Hon'ble Supreme Court, in Manish Sisodia vs Directorate of Enforcement, SLP (Criminal) No.8781 of 2024, decided on 09.08.2024, as under :-
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"49. We find that, on account of a long period of incarceration running for around 17 months and the trial even not having been commenced, the appellant has been deprived of his right to speedy trial.
50. As observed by this Court, the right to speedy trial and the right to liberty are sacrosanct rights. On denial of these rights, the trial court as well as the High Court ought to have given due weightage to this factor.
52. The Court also reproduced the observations made in Gudikanti Narasimhulu (supra), which read thus:
"10. In the aforesaid context, we may remind the trial courts and the High Courts of what came to be observed by this Court in Gudikanti Narasimhulu v. Public Prosecutor, High Court reported in (1978) 1 SCC 240. We quote:
"What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said [R v. Rose, (1898) 18 Cox]:
"I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial"
53. The Court further observed that, over a period of time, the trial courts and the High Courts have
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forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non- grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that "bail is rule and jail is exception".
55. As observed by this Court in the case of Gudikanti Narasimhulu (supra), the objective to keep a person in judicial custody pending trial or disposal of an appeal is to secure the attendance of the prisoner at trial.
56. In the present case, the appellant is having deep roots in the society. There is no possibility of him fleeing away from the country and not being available for facing the trial. In any case, conditions can be imposed to address the concern of the State.
57. Insofar as the apprehension given by the learned ASG regarding the possibility of tampering the evidence is concerned, it is to be noted that the case largely depends on documentary evidence which is already seized by the prosecution. As such, there is no possibility of tampering with the evidence. Insofar as the concern with regard to influencing the witnesses is concerned, the said concern can be addressed by imposing
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stringent conditions upon the appellant." 11(viii). Pursuant to the orders dated 20.09.2024 granting interim bail, the petitioner has joined investigation and the Status Report has not narrated any adversial circumstances that the petitioner has obstructed the investigation or has threatened the witnesses, or caused any inducement to them in any manner.
11(ix) PAST CRIMINAL ANTECEDENTS NOT 'A GROUND TO DENY BAIL' State Authorities in the Status Report indicates FIR has been registered against the bail petitioner [Kashmira Singh] i.e. FIR No.104 of 20024, dated 14.10.2017, under Section 279, 188 of Indian Penal Code and Section 21(1) 4(1) M.M Act registered at Police Station Kiratpur, and in view of past criminal antecedents, the bail has been opposed by Learned State Counsel.
Since the petitioner stands acquitted in above case, then, the accusation against the bail petitioner
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[Kashmira Singh], in FIR No.104 of 2017, dated 14.10.2017 cannot be the basis for curtailing the personal liberty of the petitioner, in view of the mandate of Hon'ble Supreme Court in Prem Prakash versus Union of India, through Directorate of Enforcement, 2024 SCC OnLine SC 2270, in following terms:-
"46. The Investigating Agency have also referred to ECIR No. 4 as a criminal antecedent. A reference was made to ECIR No. 4 of 2022 pertaining to illegal Stone Mining and related activities in Saheb Ganj, Jharkhand, where the petitioner was arrested on 25.08.2022 and the prosecution complaint was filed on 16.09.2022. Insofar as the bail pertaining to ECIR No. 4 of 2022, which is pending in this Court in SLP (Criminal) No. 691 of 2023, at the after notice stage, the merits of the bail in that case will be independently examined. Having examined the facts of the present case arising out of ECIR No. 5 of 2023 and in view of the findings recorded hereinabove, we do not think that the appellant can be denied bail based on the pendency of the other matter. We say so in the facts and circumstances of the present case as we do not find any justification for his continued detention. The appellant has already been in custody for over one year. The Trial is yet to commence. There is a reference to one more ECIR which the Investigating Agency refers to in their counter, namely, ECIR/RNZO/18/2022 but nothing is available from the record as to whether any proceedings have been taken against the appellant.
49. In the result, we pass the following order:-
(i) The appeal is allowed and impugned order
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dated 22.03.2024 is quashed and set- aside.
(ii) The Trial Court is directed to release the appellant on bail in connection with ED case No. ECIR No. 5 of 2023 on furnishing bail bonds for a sum of Rs.5 lakh with 2 sureties of the like amount." Taking into account the above facts and mandate of law in Prem Prakash's case (supra), this Court is of the considered view that accusation in an Earlier FIR or proceedings originating therefrom cannot be made the sole basis for prolonging the incarceration by way of punishment, on mere surmises-conjectures/accusations, which are yet to be tested, examined and proved during the trial. The previously lodged FIR, if any, cannot be the sole basis to deny bail in instant case. 11(x) NO APPREHENSION OF FLEEING AWAY:
The Status Report filed by the State Authorities does not indicate any likelihood of the bail petitioner, fleeing away from the administration of justice i.e. the Investigation or the Trial. In absence of any such apprehension by the State Authorities the claim for bail, needs to be accepted. Ordered accordingly.
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11(xi) NO APPREHENSION OF TAMPERING WITH EVIDENCE OR WITNESSES:
The Status Report filed by the State Authorities does not indicate any likelihood of the bail petitioner tampering with evidence or witnesses. In absence of any such material in the Status Report, the claim for bail needs to be accepted. Ordered accordingly.
12. Taking into account the entirety of facts and circumstances as disclosed in Para 11(i) to 11(ix), supra and the material on record, the prayer for bail carries weight, when, the allegations/accusation in the Status Report are yet to be tested and proceedings the trial.
Denial of bail cannot be by way of punishment. Bail cannot be withheld on mere surmises; when, the accusation is not so grave, in facts of this case. Moreover, the Status Report does not indicate that petitioner required for Custodial interrogation. Personal liberty of the petitioner as enshrined in Article 21 of the Constitution of India cannot be curtailed or taken away on the basis of mere accusation, as in this case. Even the
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petitioner has furnished the undertakings before this Court that he will join the Investigation [as and when called] and shall appear in the trial therefore, in these circumstances, the petitioner deserves to be released on bail. Accordingly, the prayer for bail is granted to the petitioner.
CONCLUSION:
13. In view of above discussion, and for the reasons hereinabove, the instant bail petition [i.e. Cr.MP(M) No.2128 of 2024] is allowed and the interim bail order dated 20.09.2024 passed by this Court, is made absolute, subject to the compliance of the conditions contained in the order dated 20.09.2024, by the bail petitioner [Kashmira Singh] for all intents and purposes.
14. It is clarified, that any of the observations made hereinabove shall not be construed as findings [for or against any of the parties herein for the purposes of trial], which shall proceed in accordance with law, without being prejudiced by the observations contained
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hereinabove.
In the aforesaid terms, instant petition is allowed and the pending miscellaneous application(s), if any, shall stand disposed of, accordingly.
(Ranjan Sharma)
Judge
October, 28 2024
(himani)