Himachal Pradesh High Court
Shiv Kumar vs State Of Himachal Pradesh on 22 December, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
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Cr.MP(M) No. 3125 of 2023
Date of Decision: 22.12.2023
_____________________________________________________________________
Shiv Kumar
.........Petitioner
Versus
State of Himachal Pradesh
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.......Respondent
Coram rt
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the petitioner(s): Ms. Kanta Thakur, Advocate.
For the Respondent(s):Ms. Seema Sharma, Deputy Advocate General.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Bail petitioner namely Shiv Kumar, who is behind the bars for seven years and nine months, has approached this Court in the instant proceedings filed under Section 439 of Cr.PC, for grant of regular bail in case FIR No.24 of 2016 dated 12.4.2016, under Sections 302, 120B and 367 of IPC, registered at PS Parwanoo, District Solan, Himachal Pradesh.
2. Perusal of record reveals that complainant namely Ram Rattan in his statement recorded under Section 154 Cr.PC, alleged that he alongwith person namely Laja Ram, resident of Village Chawla, had gone for grazing the cattle towards the village Malla and there, they found that ::: Downloaded on - 22/12/2023 20:33:49 :::CIS 2 one lady was lying in the pool of blood. Complainant after having seen .
condition of the lady, gave telephonic information to Pradhan of the village concerned on mobile, who thereafter informed the police. After having reached on the spot, police sent the body of the deceased for post mortem at IGMC Shimla. Since there was no witness to the alleged incident and of complainant had no occasion to see the culprits, police on the basis of dump data of 8.3.2016, collected during investigation found the involvement of rt person namely Bir Chand, who allegedly investigation disclosed to the police that other persons namely Raj Kumar, during Rakesh Kumar and petitioner were also with him at the time of the incident. Initially, police arrested Bir Chand, but on the same day, on the disclosure statement made by the above named person, all the co-accused named herein above, came to be arrested. Bail petitioners namely Rakesh Kumar, Bir Chand and Raj Kumar, already stand enlarged on bail vide orders dated 2.11.2022 and 11.12.2023, passed by this court. Present bail petitioner is behind bars for more than seven years and nine months.
Since investigation in the case is complete and nothing remains to be recovered from the bail petitioner, he has approached this Court in the instant proceedings, praying therein for grant of regular bail on the ground of inordinate delay in conclusion of the trial. As of today, 32 prosecution ::: Downloaded on - 22/12/2023 20:33:49 :::CIS 3 witnesses out of 52 prosecution witnesses stand examined and for .
recording the statements of remaining witnesses, matter has been fixed on 8.1.2024 before the court below.
3. Ms. Kanta Thakur, Advocate, vehemently submits that bail petitioner has been falsely implicated and as such, he deserve to be of enlarged on bail. Above named counsel further submits that bare perusal of statements made by the material prosecution witnesses nowhere rt indicates complicity, if any, of the bail petitioner and otherwise also, case of the prosecution is squarely based upon the circumstantial evidence.
Learned counsel for the petitioner submits that for around approximately eight years, bail petitioner is behind the bars for no fault of him, as a result thereof, great prejudice is being caused to him. Learned counsel for the petitioner further submits that co-accused namely Rakesh Kumar alias Raja, Bir Chand and Raj Kumar, already stand enlarged on bail on the ground of inordinate delay in conclusion of the trial. Lastly, she submits that since material prosecution witnesses already stand examined, no fruitful purpose would be served by allowing the bail petitioner to incarcerate in jail for an indefinite period during trial, which if permitted, would be violative of Article 21 of the Constitution of India.
::: Downloaded on - 22/12/2023 20:33:49 :::CIS 44. Ms. Seema Sharma, learned Deputy Advocate General, while .
fairly admitting 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 offence alleged to have been committed by him, he does not deserve any leniency. While making of this Court peruse status report as well as other material, Ms. Seema Sharma, made serious attempt to persuade this court to agree with her rt contention that there is overwhelming evidence available on record suggestive of the fact that bail petitioner has committed gruesome murder of a lady namely Neerja Devi and thereafter, also made an attempt to destroy the evidence. She further states that as per investigation, bail petitioner and other co-accused after having committed murder of deceased named herein above, threw her body at a distance of 15-20 kms from the spot of the murder, which action of theirs clearly suggests that they are hardened criminals. Learned Deputy Advocate General states that since 32 witnesses out of 52 prosecution witnesses already stand examined and nine witnesses have been given up, it cannot be said that there is an inordinate delay in conclusion of the trial, especially, when court below has already fixed the matter for recording the statements of remaining witnesses on 8.1.2024. Ms. Seema Sharma, further states that it would be not in the ::: Downloaded on - 22/12/2023 20:33:49 :::CIS 5 interest of justice to enlarge the bail petitioner on bail, who in the event of .
being enlarged on bail may tamper with the prosecution evidence and as such, his prayer for grant of bail may be rejected outrightly.
5. Having heard learned counsel for the parties and perused material available on this record, this Court is not persuaded to agree with of contention of learned counsel for the petitioner that the bail petitioners has been falsely implicated, however, having taken note of the fact that bail rt petitioner is behind bars for approximately eight years and there is no likelihood of conclusion of the trial in another six months or year, prayer made for grant of bail by the bail petitioner on the ground of inordinate delay in conclusion of trial, deserves to be considered, especially when other co-accused have already been granted bail by this Court on the ground of inordinate delay in conclusion of trial. No doubt, as of today, 32 prosecution witnesses stand examined, but this Court cannot lose sight of the fact that it took almost seven years for the prosecution to examine 32 witnesses. Though nine witnesses are stated to have been given up, but yet 11 witnesses are yet to be examined and as such, considerable time is likely to be consumed for recording the statements of remaining prosecution witnesses. In case petitioner is kept behind the bars till the examination of remaining witnesses, he would complete more than ten ::: Downloaded on - 22/12/2023 20:33:49 :::CIS 6 years in jail during the pendency of the trial. Needless to say, one is .
deemed to be innocent till the time his/her guilt is not proved in accordance with law. Incarceration for an indefinite period without holding an accused guilty, certainly amounts to violation of his fundamental right enshrined under Article 21 of the Constitution of India. No doubt, gravity of of offence alleged to have been committed by the accused is an important factor, but certainly that cannot be the sole criteria to reject the bail rt petition, rather other various factors are also required to be taken into consideration.
6. Hon'ble Apex Court in case titled Umarmia Alias Mamumia v.
State of Gujarat, (2017) 2 SCC 731, has held delay in criminal trial to be in violation of right guaranteed to an accused under Article 21 of the Constitution of India. Relevant para of the afore judgment reads as under:-
"11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616) Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569).::: Downloaded on - 22/12/2023 20:33:49 :::CIS 7
7. Reliance is placed upon judgment passed by Hon'ble Apex .
Court in Union of India v. K.A. Najeeb, Criminal Appeal No. 98 of 2021, wherein it has been held as under:
"18. It is thus clear to us that the presence of statutory restrictions like Section 43D (5) of UAPA perse does not oust the ability of Constitutional of Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to rt appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial."
8. Reliance is also placed upon judgment passed by Hon'ble Apex Court in Prabhakar Tewari v. State of U.P. and Anr, Criminal Appeal No. 152 of 2020, wherein it has been held as under:
"2. The accused is Malkhan Singh in this appeal. He was named in the FIR by the appellant Prabhakar Tewari as one of the five persons who had intercepted the motorcycle on which the deceased victim was riding, in front of Warisganj Railway Station (Halt) on the highway. All the five accused persons, including Malkhan Singh, as per the F.I.R. and majority of the witness statements, had fired several rounds upon the deceased victim. The statement of Rahul Tewari recorded on 15th March, 2019, Shubham Tewari recorded on 12 th April, 2019 and Mahipam Mishra recorded on 20th April ::: Downloaded on - 22/12/2023 20:33:49 :::CIS 8 2019 giving description of the offending incident has been relied upon by the .
appellant. It is also submitted that there are other criminal cases pending against him. Learned counsel for the accused- respondent no.2 has however pointed out the delay in recording the witness statements. The accused has been in custody for about seven months. In this case also, we find no error or impropriety in exercise of discretion by the High Court in granting bail to the accused Malkhan Singh. The reason why we come to this conclusion is broadly the same as in the previous appeal. This appeal is also dismissed of and the order of the High Court is affirmed."
9. In the aforesaid judgments, Hon'ble Apex Court has held that rt while considering the prayer for grant of bail, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.
10. Hon'ble Apex Court as well as this Court in catena of cases have repeatedly held that one is deemed to be innocent till the time guilt, if any, of his/her is not proved in accordance with law and as such, this Court sees no reason to curtail the freedom of the bail petitioner indefinitely during trial. Apprehension expressed by the learned Additional Advocate General that in the event of petitioner's being enlarged on bail, he may flee from justice, can be best met by putting him to stringent conditions as has been fairly stated by the learned counsel for the petitioner.
::: Downloaded on - 22/12/2023 20:33:49 :::CIS 911. 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, normal rule is of bail and of not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction rt will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.
12. 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 ::: Downloaded on - 22/12/2023 20:33:49 :::CIS 10 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."
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13. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218, The Hon'ble Apex Court has held as under:-
rt " This Court in Sanjay Chandra v. CBI, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that 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 found guilty. It was underlined that the object of bail is neither punitive or preventive. This Court sounded a caveat 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 a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and the grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under ::: Downloaded on - 22/12/2023 20:33:49 :::CIS 11 trial prisoners for an indefinite period would amount to violation of Article .
21 of the Constitution was highlighted."
14. 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:
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(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;
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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.
15. 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 ::: Downloaded on - 22/12/2023 20:33:49 :::CIS 12 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:
of "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 rt 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.::: Downloaded on - 22/12/2023 20:33:49 :::CIS 13
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 of 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 rt 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.
16. Reliance is also placed upon the judgment dated 15.2.2023, passed by the Hon'ble Apex Court in Petition for Special Leave to Appeal (Crl.) No. 11714 of 2022, titled as Mukesh Kumar v. The Station Of Rajasthan and Anr., wherein it has been held as under:
"1. The petitioner is one of the accused in First Information Report No.164/2020 dated 08-06-2020 registered at Police Station Khanpur, District Jhalawar (Rajasthan) under Sections 143, 307, 452, 323, 504 of the ::: Downloaded on - 22/12/2023 20:33:49 :::CIS 14 Indian Penal Code (IPC) wherein subsequently offence under Section 302 of .
the IPC was also added. There is a cross First Information Report No.165/2020 of the same date registered at the same Police Station under Sections 143, 341, 323, 452, 504, 324 IPC wherein subsequently Section 307 of the IPC was added which is stated to be earlier in point of time, in which the opposite party is alleged to have caused sharp edged injury between eye-brows and nose on the face of the uncle of the petitioner. The petitioner's version is that Respondent No.2 (complainant) along with his of brother Jankilal (since dead) reached the house of the petitioner with wooden sticks and gandasi and started fight with the petitioner's family members. Both the families are related to each other and are also neighbours. In a free fight, blows were exchanged and as noticed earlier, rt while uncle of the petitioner received a sharp edged injury on vital parts of the body attracting Section 307 IPC, the brother of Respondent No.2 (complainant) (deceased Jankilal) also received 5 blunt injuries on his head, as a result of which, he succumbed.
8. Suffice to say that the petitioner has been in custody for more than 14 months, the crucial witnesses have since been examined and there is no likelihood of tampering with the evidence. Even otherwise also, the witnesses are close family members of both sides, hence there is no likelihood of winning over the witnesses.
9. Since conclusion of trial will take considerable time, we deem it appropriate to release the petitioner on bail."
17. Reliance is also placed upon judgment dated 17.9.2021, passed by the Hon'ble Apex Court in Petition(s) for Special Leave to Appeal (Crl.) No. 2543 of 2021, in Chintan Vidyasagar Upadhyay v. the State of Maharashtra, relevant paras whereof read as under:
"The petitioner has been in custody for nearly 6 years. The trial is in progress and 28 witnesses have been examined and 12 witnesses are yet to be examined. Having scrutinized the record and after hearing the learned ::: Downloaded on - 22/12/2023 20:33:49 :::CIS 15 counsel for the parties, we are of the opinion that the petitioner is entitled .
for bail having been incarcerated for nearly 6 years. The petitioner is directed to be released on bail subject to the following conditions:-
(a) The petitioner shall reside in any place other than Mumbai and shall visit Mumbai only for the purpose of attending the Court.
(b) The petitioner shall not make any attempt to influence the witnesses.
(c) The petitioner shall surrender the passport in the Trial Court within a period of one week from today.
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(d) The petitioner shall provide the place of his residence to the Trial Court within a period of one week from today.
(e) The petitioner shall report to the local police station at the place of his residence on the first date of every month."
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18. In both the aforesaid cases, the Hon'ble Apex Court having taken note of delay in conclusion of trial and period of incarceration, proceeded to enlarge the accused on bail in cases including Section 302 of IPC.
19. In view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court, bail petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bonds in the sum of Rs. 5,00,000/- with one local surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate/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 - 22/12/2023 20:33:49 :::CIS 16
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 him 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.
20. It is clarified that if the petitioner misuses his liberty or violates of any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.
21. Any observations made hereinabove shall not be construed to rt 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.
22. The petitioner is permitted to produce copy of order downloaded from the High Court Website and the trial court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.
December 22, 2023 ( Sandeep Sharma ),
(manjit) Judge
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