Himachal Pradesh High Court
Kamal Nath Alias Kamlu vs State Of H.P on 7 August, 2024
Neutral Citation No. ( 2024:HHC:6477 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 1534 of 2024 Reserved on: 31.07.2024 .
Date of Decision: 07.08.2024.
Kamal Nath alias Kamlu ...Petitioner
Versus
State of H.P. ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr. Vijay Chaudhary, Advocate.
For the Respondent : Mr. Ajit Sharma, Deputy Advocate General.
Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested vide F.I.R. No.92 of 2023, dated 21.09.2023, for the commission of offences punishable under Sections 302, 323 and 109 of IPC at Police Station Patikuhal, District Kullu, H.P. The investigation in the present case has been completed. A charge sheet has been filed before the Court and now the matter is listed before the learned Trial Court for consideration on the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 07/08/2024 20:33:49 :::CIS 2Neutral Citation No. ( 2024:HHC:6477 ) charge. The petitioner has nothing to do with the commission of offences. The CCTV footage relied upon by the police does not .
establish the role of the petitioner in the commission of the offences. As per the report submitted by the police under Section 173 of Cr.P.C., the petitioner had only pushed the deceased. The deceased and the main accused Prashant were heavily drunk and they had some altercation. The petitioner intervened and tried to resolve the situation. Eyewitness Ashish Sharma has also stated that the petitioner had tried to stop the fight between the main accused Prashant and Anoop @ Ajay but they did not stop. He and the petitioner left for their homes. The petitioner has been in jail for more than 10 months. The trial is likely to take some time. The petitioner has deep roots in the society. He would abide by all the terms and conditions, which the Court may impose. Hence, it was prayed that the present petition be allowed and petitioner be released on bail.
2. The petition is opposed by filing a status report asserting that the police received an information on 21.09.2023 at 2.21 a.m. that one person had fallen at the Patikuhul Taxi stand. The police went to the spot and checked the CCTV Footage. The police found that Anoop @ Ajay was beaten by ::: Downloaded on - 07/08/2024 20:33:49 :::CIS 3 Neutral Citation No. ( 2024:HHC:6477 ) Prashant. Petitioner Kamal Nath was also present with a stick.
He had a scuffle with the deceased. Prashant and Anoop had .
reached near the Taxi Stand Office, Prashant gave beatings to Anoop and threw him on the ground. He (deceased) was thrown in the water. The police recorded the statement of Amar Chand and registered the F.I.R. The postmortem examination of the dead body was conducted and as per report the deceased had sustained injuries, one of which could have been caused by the stick. As per the report of chemical analysis, no ethyl alcohol was detected in the viscera of the deceased. The police found after the investigation that Prashant and Anoop @Ajay had betted on the snooker game. Anoop lost twice. He asked Ajay to play a game but he declined. This led to the altercation. As per the statement of Aashish, Prashant had handed over the mobile phone of the deceased to the present petitioner, who put it on the dashboard of the vehicle. This led to an altercation between the petitioner and the deceased. The petitioner removed the snooker stick from the dickey of his vehicle and joined Anoop and Prashant. As per CCTV footage, the snooker stick was broken during the scuffle. The petitioner instigated Prashant to give beatings to the deceased. The police seized the video ::: Downloaded on - 07/08/2024 20:33:49 :::CIS 4 Neutral Citation No. ( 2024:HHC:6477 ) recording. The challan has been prepared and presented before the Court and was listed on 22.07.2024 for the consideration .
ofcharge.
3. I have heard Mr. Vijay Chaudhary, learned counsel for the petitioner and Mr. Ajit Sharma, learned Deputy Advocate General for respondent/State.
4. Mr Vijay Chaudhary, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. He was seen pushing the deceased in the CCTV footage. He had only intervened to separate Prashant and the deceased. Aashsih, the sole eyewitness, has also not stated anything against the petitioner. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail. He relied upon the judgment of the Hon'ble Supreme Court in Javed Gulam Nabi Shaikh vs State of Maharashtra, Criminal Appeal No. 2787 of 2024 decided on 03.07.2024 in support of his submission.
5. Mr. Ajit Sharma, learned Deputy Advocate General for the respondent/State submitted that the petitioner is involved in the commission of a heinous offence. He had given beatings to ::: Downloaded on - 07/08/2024 20:33:49 :::CIS 5 Neutral Citation No. ( 2024:HHC:6477 ) the deceased with the snooker stick and instigated other co-accused to give beatings to the deceased. Hence, Section 109 .
of IPC was added in the present case. The petitioner is equally liable as the main accused and the present petition should be dismissed.
6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
7. The Hon'ble Supreme Court discussed the parameters for granting the bail in Bhagwan Singh v. Dilip Kumar, 2023 SCC OnLine SC 1059 as under: -
"12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;
(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;
(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.::: Downloaded on - 07/08/2024 20:33:49 :::CIS 6
Neutral Citation No. ( 2024:HHC:6477 )
(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in .
support of the charge.
(d) Frivolity of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.
13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts have been explained in the following words:
"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged with having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.::: Downloaded on - 07/08/2024 20:33:49 :::CIS 7
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(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in .
support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124].)"
8. A similar view was taken in State of Haryana vs Dharamraj 2023 SCC Online 1085, wherein it was observed:
Singh, (2002) 3
7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan r SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the relevant principles were restated thus:
'9. ... It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:
(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;::: Downloaded on - 07/08/2024 20:33:49 :::CIS 8
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(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.'
9. The status report shows that the petitioner was seen pushing the deceased. The police also found that the petitioner took out a snooker stick from the dickey of his vehicle and gave beatings to the deceased so much so that it was broken. One of the injuries was stated to have been caused using the snooker stick. This prima facie establishes the involvement of the petitioner in the commission of the crime. It was submitted that bail cannot be withheld as a punishment becasue bail is the rule and jail is an exception. There can be no dispute with the proposition of law. However, as was noticed by the Hon'ble Supreme Court in Javed Gulam Nabi Shaikh's case (supra), the object of the bail is to secure the attendance of the accused at trial. The reason for withholding the bail in a heinous offence is twofold; first, the heinous offence is punishable by capital punishment or life imprisonment and a person has an incentive ::: Downloaded on - 07/08/2024 20:33:49 :::CIS 9 Neutral Citation No. ( 2024:HHC:6477 ) to jump the bail to avoid severe punishment and second, as a preventive measure to prevent society from possible harm and .
the intimidation to the witnesses to secure the acquittal.
Therefore, the Courts have consistently held that in heinous offences involving capital or severe punishments; the accused is not entitled to the bail as a matter of right.
10. In the present case, the petitioner is involved in the commission of an offence punishable under Section 302 of IPC, which is punishable with imprisonment for life or the death penalty, therefore, flight risk cannot ignored and the petitioner cannot be held entitled to bail based on the flight risk. The Hon'ble Supreme Court dealt with the commission of offences 489-B 489-C and 120-B of IPC and the cited judgment does not apply to the present case.
11. Keeping in view the nature of the offence; the petitioner cannot be released on bail.
12. Consequently, the present petition fails and the same is dismissed.
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13. The observation made herein before shall remain confined to the disposal of the instant petition and will have no .
bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla)
Judge
07th August, 2024
(ravinder)
r to
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