Himachal Pradesh High Court
Rupesh Kumar Sharma vs State Of Himachal Pradesh on 27 March, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMP(M)'s No. 232 and 250 of 2018
Decided on March 27, 2018
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1. CrMP(M) No. 232 of 2018
Rupesh Kumar Sharma ... Petitioner
Versus
State of Himachal Pradesh Respondent
2. CrMP(M) No. 250 of 2018
Rakesh Kumar Sharma and others ... Petitioners
Versus
State of Himachal Pradesh Respondent
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Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the petitioner(s) : Mr. Naveen K. Bhardwaj, Advocate.
For the respondent : Mr. Dinesh Thakur, Additional
Advocate General.
ASI Ram Lal, IO PS Bhuntar,
District Kullu, Himachal Pradesh.
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Sandeep Sharma, Judge (oral):
Since both the bail petitions arise out of one FIR, same were taken up together and are being disposed of by this common judgment.
2. By way of these bail petitions, prayer has been made on behalf of the bail petitioners for grant of bail in FIR No. 44/18 dated 11.3.2018 under Sections 452, 380, 506 and 201 read 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 28/03/2018 23:33:02 :::HCHP 2with Section 34 IPC and Section 3(1)(X) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, registered at Police Station, Bhuntar, District Kullu, Himachal .
Pradesh.
3. Sequel to order dated 16.3.2018, ASI Ram Lal has come present with the record. Mr. Dinesh Thakur, Additional Advocate General has also placed on record status report, prepared on the basis of investigation carried out by the investigating agency. Record perused and returned.
4. Scrutiny of status report/ record suggests that FIR mentioned herein above came to be lodged at the behest of the complainants namely Hira Devi and Hari Ram, who are husband and wife, alleging that on 11.3.2018 at about 10.50 pm, bail petitioners under the influence of liquor entered into their house and hurled abuses at them. Complainants further alleged that the bail petitioners unauthorisedly entered into their house and extended threats to do away with the life of complainant Hari Ram. Both the complainants further alleged that all the bail petitioners called them by their caste and humiliated them. Complainants further alleged that since bail petitioners owe some money to their owner, they threatened them and stated that if case instituted by the owner of the house is not withdrawn, they will kill him and his family.
::: Downloaded on - 28/03/2018 23:33:02 :::HCHP 3Complainant also alleged that he works as Chowkidar in the house of one Shri Hem Singh Saklani and bail petitioners under the influence of liquor forcibly entered into the house and .
caused damage to the same.
5. Mr. Naveen K. Bhardwaj, learned counsel representing the bail petitioners, while referring to the record/ status report contended that no case is made out against the bail petitioners because nothing has come in the investigation, from where it can be inferred that on the date of alleged incident, bail petitioners extended threats, if any, to the complainants. Mr. Bhardwaj, further contended that there is nothing on record suggestive of the fact that complaint, if any, was ever lodged against the bail petitioners. While referring to the report of the investigating agency, Mr. Bhardwaj, contended that there is no evidence adduced on record by the investigating agency, from where it can be inferred that the bail petitioners called complainants by their caste. He further contended that otherwise also investigation is complete and nothing is required to be recovered from the bail petitioners, as such, bail petitioners are entitled for grant of bail.
6. On the other hand, Mr. Dinesh Thakur, learned Additional Advocate General, while opposing aforesaid prayer having been made by the learned counsel representing the bail ::: Downloaded on - 28/03/2018 23:33:02 :::HCHP 4 petitioners, contended that keeping in view gravity of the offence allegedly committed by bail petitioners, they do not deserve any leniency, rather they need to be dealt with severely. Learned .
Additional Advocate General further contended that it has come in the investigation that all the bail petitioners under the influence of liquor entered the house of the complainants and thereafter they not only threatened them but called them by their caste, as such, bail petition filed by bail petitioners deserve to be dismissed. While fairly acknowledging that investigation in the case is complete, Mr. Thakur contended that in the event of petitioners' being enlarged on bail, there is every possibility that they may influence or tamper with the evidence adduced on record of investigating agency, as such, present bail petitions deserves to be dismissed.
7. I have heard the learned counsel for the parties and gone through the record carefully.
8. Status report/ record reveals investigation is complete and nothing is required to be recovered from the bail petitioners at this stage. It emerges from the record/status report that complainant Hari Ram is a Chowkidar in the house of sister of one of bail petitioners. Investigation further reveals that there is some dispute between bail petitioners and their sister namely Manju Dayal, but interestingly, there is nothing on record ::: Downloaded on - 28/03/2018 23:33:02 :::HCHP 5 suggestive of the fact that complaint, if any, was ever filed by Manju Dayal, owner of house, against the bail petitioners. It also emerges from the investigation that there is property .
dispute between bail petitioners and Manju Dayal and one Hem Singh Saklani.
9. At this stage, this Court is unable to lay its hand to evidence, if any, collected by impugned award suggestive of the fact that bail petitioners humiliated complainants and called them by their caste. Though aforesaid aspect of matter is to be considered and decided by the court below, on the basis of material adduced on record by prosecution but this Court taking note of the fact that guilt if any of bail petitioners is yet to be proved in accordance with law, sees no reason for custodial interrogation of the bail petitioners, who have otherwise joined investigation, as has been fairly admitted by learned Additional Advocate General.
10. It has been repeatedly held by Hon'ble Apex Court and this Court also that liberty of an individual is of utmost importance and same can not be allowed to be curtailed for indefinite period. Otherwise also, as has been taken note above, dispute inter se parties appears to be with regard to property and as such, prayer having been made by the bail petitioners for grant of bail deserves to be accepted.
::: Downloaded on - 28/03/2018 23:33:02 :::HCHP 611. 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 held that freedom of an individual can .
not be curtailed for indefinite period, especially when his guilt has not been proved. It has further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held 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 ::: Downloaded on - 28/03/2018 23:33:02 :::HCHP 7 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 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. By now it is well settled that gravity alone cannot be decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon'ble Apex ::: Downloaded on - 28/03/2018 23:33:02 :::HCHP 8 Court that 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. The Hon'ble .
Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; has been 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 ::: Downloaded on - 28/03/2018 23:33:02 :::HCHP 9 unconvicted person for the propose of giving him a taste of imprisonment as a lesson."
13. Law with regard to grant of bail is now well settled. The .
Apex Court in Siddharam Satlingappa Mhetre versus State of Maharashtra and others, (2011) 1 SCC 694, while relying upon its decision rendered by its Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565, laid down the following parameters for grant of bail:-
"111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour.
112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on ::: Downloaded on - 28/03/2018 23:33:02 :::HCHP 10 conviction by a Court in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
.
(iv) The possibility of the accused's likelihood to repeat similar or the other offences.
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) Frivolity in 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 ::: Downloaded on - 28/03/2018 23:33:02 :::HCHP 11 course of events, the accused is entitled to an order of bail." (Emphasis supplied)
14. 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 also, normal rule is of bail and not jail. Apart from above, 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.
15. The Apex Court in Prasanta Kumar Sarkar versus 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.::: Downloaded on - 28/03/2018 23:33:02 :::HCHP 12
16. In view of above, interim orders dated 16.3.2018, are made absolute, subject to the petitioners' furnishing fresh bail bonds in the sum of Rs.1,00,000/- (Rs. One Lakh) each with one local .
surety each in the like amount, to the satisfaction of the Investigating Officer concerned, besides following conditions:
(a) They shall make themselves 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) They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(c) They shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and
(d) They shall not leave the territory of India without the prior permission of the Court.
(e) They shall surrender passports, if any, held by them.
17. It is clarified that if the petitioners misuse the liberty or violate any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail.
18. 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 instant petitions alone.
The petitions stand accordingly disposed of.
Copy dasti.
(Sandeep Sharma) Judge March 27, 2018 (vikrant) ::: Downloaded on - 28/03/2018 23:33:02 :::HCHP