Himachal Pradesh High Court
Pankaj Sharma Son Of Dina Nath vs State Of Himachal Pradesh. ... on 21 May, 2015
Author: P.S.Rana
Bench: P.S.Rana
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA:
.
Cr.MP(M) No. 425 of 2015.
Order reserved on: 15.5.2015
Date of Order: May 21,2015.
Pankaj Sharma son of Dina Nath. .....Petitioner.
Vs:
State of Himachal Pradesh. ....Non-petitioner.
Coram:
The Hon'ble Mr.Justice P.S.Rana, Judge.
Whether approved for Reporting?1yes.
For the petitioner: Mr. Ajay Kochhar, Advocate.
For non-petitioner: Mr. M.L.Chauhan, Addl. Advocate
General.
P.S.Rana, Judge.
ORDER:Present petition is filed under Section 439 of the Code of Criminal Procedure 1973 for grant of bail in connection with case FIR No. 63 of 2015 dated 2.4.2015 1 Whether reporters of Local Papers may be allowed to see the judgment?yes.
::: Downloaded on - 15/04/2017 18:13:37 :::HCHP 2registered under Sections 307, 323 read with Section 34 IPC at Police Station Sadar Shimla District Shimla HP.
.
2. It is pleaded that petitioner is innocent and petitioner did not commit any criminal offence as alleged by investigating agency. It is further pleaded that investigation of the case is complete and petitioner is government employee and there is no possibility of fleeing from the proceedings of court. It is further pleaded that continue custody of the petitioner would adversely effect the career and would also effect the family members of the petitioner who are totally dependent upon him. It is further pleaded that any condition imposed by the Court will be binding upon the petitioner and petitioner will not tamper with the prosecution witness in any manner. It is further pleaded that bail petition filed by petitioner was dismissed by learned Sessions Judge Shimla on dated 10.4.2015. Prayer for acceptance of bail petition sought.
3. Per contra police report filed. There is recital in police report that on dated 2.4.2015 information was received by way of telephone at Police Station Sadar Shimla that quarrel took place at HHH Shimla and injured person was brought for his medical treatment to IGMC Shimla.
::: Downloaded on - 15/04/2017 18:13:37 :::HCHP 3There is further recital in police report that statement of Kashish Khana was recorded. There is further recital in .
police report that Kashish Khana is a shopkeeper at lower market Shimla and on dated 2.4.2015 at about 8.15 night Kashish Khana along with his cousin brother Abhay Kumar went to HHH Shimla for consuming coffee and when Kashish Khana came out of the restaurant after consuming coffee one ambassador car was parked at the entrance of restaurant.
There is further recital in police report that Kashish Khana told the driver of car to shift the car and in the meanwhile altercation took place and two persons came from behind and started quarreling with Kashish Khana. There is further recital in police report that one of co-accused namely Pankaj Sharma had fired from his service pistol and Kashish Khana sustained injuries in his right feet. There is further recital in police report that other co-accused namely Rakesh Kumar had inflicted injury with stick. There is further recital in police report that MLC of injured person was obtained from IGMC Shimla and the statements of the witnesses were recorded under Section 161 Cr.P.C and site plan was prepared. There is further recital in police report that co-
accused Pankaj Sharma has fired from his service pistol and ::: Downloaded on - 15/04/2017 18:13:37 :::HCHP 4 both accused persons were arrested on dated 3.4.2015.
There is further recital in police report that sticks were .
recovered as per disclosure statement of co-accused Rakesh Kumar. There is further recital in police report that no recovery is to be effected from accused persons. There is further recital in police report that challan stood filed in the Court of learned Chief Judicial Magistrate Shimla on dated 7.5.2015. There is further recital in police report that accused persons are influential persons and if bail is granted to the petitioner then petitioner would cause disappearance of the evidence and would also threat prosecution witness.
Prayer for rejection of bail application sought.
4. Court heard learned Advocate appearing on behalf of petitioner and Court also heard learned Additional Advocate General appearing on behalf of State.
5. Following points arise for determination in the present bail application:
(1) Whether bail application filed under Section 439 of the Code of Criminal Procedure 1973 is liable to be accepted after the filing of challan and after completion of investigation and after discharged of injured from hospital as alleged?.
(2) Final Order.
::: Downloaded on - 15/04/2017 18:13:37 :::HCHP 5Finding upon Point No.1.
6. Submission of learned Advocate appearing on .
behalf of the petitioner that petitioner is innocent and he has been falsely implicated in the present case cannot be decided at this stage. Same fact will be decided when case shall be decided on its merits by learned trial Court after giving due opportunity of hearing to both the parties to lead evidence in support of their case.
7. Another submission of learned Advocate appearing on behalf of the petitioner that investigation is completed and challan stood filed in the Court and no recovery is to be effected from the petitioner and injured already stood discharged from hospital and on this ground bail application be allowed is accepted for the reason hereinafter mentioned. It is well settled law that at the time of granting bail following factors should be considered (i) Nature and seriousness of offence (ii) Character of the evidence (iii) Circumstances which are peculiar to the accused (iv) Possibility of the presence of the accused at the trial or investigation (v) Reasonable apprehension of witnesses being tampered with (vi) Larger interests of the public or the State. See AIR 1978 SC 179 titled ::: Downloaded on - 15/04/2017 18:13:37 :::HCHP 6 Gurcharan Singh and others Vs. State (Delhi Administration. Also see AIR 1962 SC 253 titled The .
State Vs. Captain Jagjit Singh. It was held in case reported in 2012 Cri.L.J 702 SC titled Sanjay Chandra Vs. Central Bureau of Investigation that object of bail is to secure the appearance of the accused person at his trial and it was held that object of bail is not punitive in nature.
It was held that bail is rule and committal to jail is exception.
It was also held that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution of India. It was held that it is not in the interest of justice that accused should be kept in jail for indefinite period. In the present case challan already stood filed in the Court on dated 7.5.2015, investigation is completed, no recovery is to be effected from the petitioner, injured already stood discharged from hospital and trial of the case will be concluded in due course of time. It is well settled law that accused is presumed to be innocent till proven guilty by the competent Court of law. Court is of the opinion that if petitioner is released on bail at this stage then interests of the general public or the State will not be ::: Downloaded on - 15/04/2017 18:13:37 :::HCHP 7 adversely effected keeping in view the concept that bail is rule and jail is exception.
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8. Submission of learned Additional Advocate General that if the petitioner is released on bail then petitioner will induce and threat prosecution witness and on this ground bail petition be rejected is devoid of any force for the reason hereinafter mentioned. Court is of the opinion that conditions will be imposed in the bail order that petitioner will not induce or threat prosecution witnesses. If petitioner will flout terms and conditions of bail order then prosecution agency or investigating agency will be at liberty to file application for cancellation of bail provided under Section 439(2) of the Code of Criminal Procedure 1973 in accordance with law. Point No.1 is answered in affirmative.
Point No.2 (Final order).
9. In view of my findings on point No.1 bail application filed by petitioner is allowed. It is ordered that petitioner will be released on bail on furnishing personal bond in the sum of Rs.1,00,000/- (One lac) with two sureties in the like amount to the satisfaction of learned trial Court on following terms and conditions. (i) That petitioner will join investigation as and when called for by the Investigating ::: Downloaded on - 15/04/2017 18:13:37 :::HCHP 8 Officer in accordance with law. (ii) That petitioner shall not directly or indirectly make any inducement, threat or .
promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to any police officer. (iii) That petitioner will not leave India without prior permission of the Court. (iv) That petitioner will not commit similar offence qua which he is accused. (v) That petitioner will give his residential address to the Investigating Officer in written manner so that petitioner can be located after giving short notice. (vi) That petitioner will attend the proceedings of learned trial Court regularly till conclusion of the trial. Observation made hereinabove is strictly for the purpose of deciding the present bail petition and it shall not effect merits of case in any manner. Bail petition disposed of. All pending application(s) if any also disposed of.
(P.S.Rana), Judge.
May 21, 2015(R) ::: Downloaded on - 15/04/2017 18:13:37 :::HCHP 9 .
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