Rajat Rana vs Unknown
2021 Latest Caselaw 4730 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                ON THE 27th DAY OF SEPTEMBER, 2021
                            BEFORE
       HON'BLE MR. JUSTICE SANDEEP SHARMA
    CRIMINAL MISC.PETITION (MAIN) Nos.1817, 1819 & 1820 of 2021.




                                                            .

    Between:-

    1.    CRIMINAL MISC. PETITION (MAIN) NO. 1817 OF 2021





    RAJAT RANA
    S/O SH. SUBHASH CHAND,
    AGED 23 YEARS,





    RESIDENT OF VILLAGE AND POST OFFICE BEHDALA,
    TEHSIL AND DISTRICT UNA, HIMACHAL PRADESH
                                                                PETITIONER

    (MR. TARA SINGH CHAUHAN, ADVOCATE)

    AND
    STATE OF HIMACHAL PRADESH


                                                             RESPONDENT
    (MR. SUHDIR BHATNAGAR,
    ADDITIONAL ADVOCATE GENERAL WITH




    MR. NARINDER THAKUR,
    DEPUTY ADVOCATE GENERAL)





    2.    CRIMINAL MISC. PETITION (MAIN) NO. 1819 OF 2021





    PARKASH CHAND,
    S/O SH. SATINDER MANKOTIA,
    AGED 28 YEARS,
    RESIDENT OF VILLAGE AND POST OFFICE PANJAWAR,
    TEHSIL HAROLI, DISTRICT UNA,
    HIMACHAL PRADESH
                                                                PETITIONER
    (MR. TARA SINGH CHAUHAN, ADVOCATE)




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    AND
    STATE OF HIMACHAL PRADESH
                                                                   RESPONDENT




                                                                  .
    (MR. SUHDIR BHATNAGAR,





    ADDITIONAL ADVOCATE GENERAL WITH
    MR. NARINDER THAKUR,





    DEPUTY ADVOCATE GENERAL)


    3.     CRIMINAL MISC. PETITION (MAIN) NO. 1820 OF 2021





    AMAN
    S/O SH. MEHAR SINGH,
    AGED 23 YEARS,


    RESIDENT OF VILLGAE LAM POST OFFICE JHAMBER,
    TEHSIL AND DISTRICT UNA,
    HIMACHAL PRADESH


                                                                      PETITIONER
    (MR. TARA SINGH CHAUHAN, ADVOCATE)




    AND





    STATE OF HIMACHAL PRADESH
                                                                   RESPONDENT





    (MR. SUHDIR BHATNAGAR,
    ADDITIONAL ADVOCATE GENERAL WITH
    MR. NARINDER THAKUR,
    DEPUTY ADVOCATE GENERAL)
    Whether approved for reporting?


    these petitions coming on for orders this day, the Court passed the following:

                                      ORDER

Since all the petitions arise out of same FIR, same wee

taken up together for hearing and are being disposed of vide this

common judgment.

.

2. Bail petitioners, namely Rajat Rana, Parkash Chand and Aman,

who are behind the bars since 06.08.2021, have approached this Court

in the instant proceedings filed under Section 439 Cr.PC, for grant of

regular bail in FIR No. 284/2021, dated 28.07.2021, under Sections

307, 323, 324, 147, 148, 149 & 506 of IPC and 52, 54, 59 of Arms Act,

registered at Police Station Sadar, District Una, H.P.

3. Respondent-State has filed status report, in terms of order dated

20.09.2021 and SI Jagbir Singh, P.S. Sadar, District Una, H.P., has also

come present with record. Record perused and returned. Close

scrutiny of status report/record, reveals that on 28.07.2021, police after

having received information, reached Regional Hospital, Una and

found that two persons namely, Vikas Saini and Sumit Dogra had been

given severe beatings, as a consequence of which, they were under

treatment at the hospital, referred hereinabove. Complainant, namely

Satnam, got his statement recorded under Section 154 Cr.P.C, alleging

therein that he works as a mechanic in HRTC Una and Lakhvinder

Singh is his friend. He disclosed to the police that on 27.07.2021,

Lakhvinder Singh had posted one photograph of his workout at

Diamond Gym, Una on the instagram. In the aforesaid photo, persons

namely, Lakhvinder, Rakesh Kumar, Shubham Patiyal and Sumit

Dogra, were also present. Prakash Mankotia, resident of Panjavar

Tehsil and District Una, responded to aforesaid post by sending one

Immoji of laughter. He alleged that thereafter he along with persons

Rakesh Kumar, Lakhvinder and Vikas Saini, went to the shop of Honey,

and asked the reasons for ridiculing them. Honey advised Prakash not

.

to indulge in such activity, on phone, but thereafter on 27.07.2021,

Prakash had extended threats to Vikas that he would shot him dead.

He further alleged that on 28.07.2021, at 12/12.30 in the night,

Prakash Mankotia, started kicking the gate of house of Vikas and

hurled abuses. He alleged that he informed with regard to aforesaid

incident to police in the morning. However, on 28.07.2021, at 10 A.M.,

in the morning, Vikas received call from Honey that now lets r forget

the incident and as such, they all went towards Palika Bazar, Una for

talks, where persons namely Honey, Prakash, Sumit, Rohit, Rajat,

Mudit,Aman and Gurpreet, were also present with sharp edged

weapons, i.e. sword, sickle and stick, etc. He alleged that all the

persons named hereinabove, attacked him and persons namely, Vikas

and Sumit, as a consequence of which, they suffered serious injuries.

On the basis of aforesaid complaint, FIR as detailed hereinabove,came

to be lodged against the present bail petitioners along with co-accused

Mudit Rana and Sumit. At the first instance, all the bail petitioners

approached this Court for anticipatory bail by way of filing application

under Section 438 Cr.P.C, but same was dismissed as withdrawn and

thereafter, all the accused surrendered before the police on 6.8.2021.

All the persons named in the FIR save and except Rohit and Arun

Rana are behind the bars. Person namely Aman has been ordered to

be enlarged on bail by learned Sessions Judge, Una. Since,

investigation in this case is complete and nothing remains to be

recovered from the bail petitioners, they have approached this Court in

the instant proceedings for grant of bail.

.

4. Mr. Sudhir Thakur, learned Additional Advocate General, while

fairly admitting factum with regard to completion of investigation,

contends that though nothing remains to be recovered from the bail

petitioners, but keeping in view the gravity of offences alleged to have

been committed by them, they do not deserve any leniency and as

such, prayer having been made on their behalf for grant of bail may be

rejected. Learned Additional Advocate General, while referring to the

record, further submits that all the bail petitioners are hardened

criminals and many cases stand registered against them and as such,

it is not in the interest of justice to enlarge them on bail because in the

event of theirs being enlarged of bail, they may again indulge in such

activities. Learned Additional Advocate General further submits that the

victims as detailed in FIR, have suffered serious injuries on their

persons and had they not escaped themselves by fleeing from the

spot, all the persons named in the FIR including present bail petitioners

would have killed them and as such, prayer made on their behalf,

deserves outright rejection.

5. Having heard learned counsel representing the parties and

perused the material available on record, this Court finds that on

27.07.2021, some dispute arose inter se victims and accused named in

FIR, on account of some remarks given by accused as narrated in the

FIR on the photograph of their workout in Diamond gym loaded by

complainant on the instagram. It is not in dispute that victims firstly

themselves went to the shop of some person namely Honey to know

reason for ridiculing them qua the post of their in the instagram and

.

thereafter, though both the parties had agreed to resolve their dispute

amicably, but allegedly on 28.07.2021, accused named in FIR,

attacked the victims while they had come to talk to them near Palika

Bazar, Una, as a consequence of which, persons namely Vikas and

Sumit, suffered serious injuries on their persons. Record/status report

clearly reveals that all the accused named in the FIR, were present on

the spot, but allegedly beatings on the persons namely Vikas and

Sumit, were given by accused namely Mudit Rana and Sumit Dogra.

As per complainant, accused Sumit attacked persons namely Vikas

and Sumit Dogra with sword, as a consequence of which they suffered

grievous injuries on their persons. It has come in investigation that

another accused Mudit gave blow of sword on the head of victim

namely Vikas as a consequence of which he also suffered serious

injuries on his person. Doctor attending aforesaid persons termed

some of injuries to be simple caused by sharp edged weapon and

some injuries to be grievous caused by blunt weapon. In total four

injuries each have been reported on the persons of victims namely

Vikas and Sumit Dogra. Though, in the status report, it has been

reported that all the accused named in the FIR gave beatings to the

victims but as has been taken note above, there is no specific

allegation against all accused as far as infliction of injuries on the vital

parts of persons namely Vikas and Sumit Dogra are concerned, rather

it has been stated in the status report that the accused alongwith Sumit

and Mudit gave blow of sword on the head and other parts of bodies of

persons namely Vikas and Sumit Dogra and as such, there appears to be

.

no reason at this stage to keep all the accused, save and except Sumti

and Mudit behind the bars during trial, especially when guilt, if any of

them is yet to be established on record. This court finds from status

report that the victims have recovered from their injuries and at present

they are out of danger. Since another accused, Arun Rana was not seen

actively participating in the alleged offence, as such, learned Sessions

Judge, Una has already enlarged him on bail. Similarly, another person,

Rohit Kumar, who was alleged to have participated in the alleged

incident, was not found to have actively participated in the incident, and

as such was enlarged on bail by this Court. It has been stated in the

status report that all the accused named in the FIR with prior intention

to kill the victims, as named herein above, had attacked upon them but

such allegations are yet to be proved in accordance with law, by leading

cogent and convincing evidence. The question that whether the bail

petitioners, had come on the spot with intention to kill victims as named

herein above and they had inflicted injuries on their person, is yet to be

established on record and as such, this court sees no reason to let the

bail petitioners incarcerate in jail for an indefinite period during trial.

Apprehension expressed by learned Deputy Advocate General that in the

event of bail petitioners being enlarged on bail, they may flee from justice,

can be best met by putting them to the stringent conditions.

6. Otherwise also Hon'ble Apex Court as well as this Court

have held in catena of judgments, that till the time, guilt of a person is not

proved in accordance with law, he/she is deemed to be innocent.

7. 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 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 has 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:

"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 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.

8. 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 not jail.

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.

9. 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 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."

10. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5)

SCC 218, The Hon'ble Apex Court has held as under:-

" 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 trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted."

11. 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:

                (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.

11. In view of the aforesaid discussion as well

as law laid down by the Hon'ble Apex Court, bail

petitioners have carved out a case for grant of bail,

accordingly, the petitions are allowed and the

petitioners are ordered to be enlarged on bail in

.

aforesaid FIR, subject to their furnishing personal

bond in the sum of Rs. 1,00,000/- each with two

local sureties, in the like amount to the satisfaction

of concerned Chief Judicial Magistrate/trial Court,

with 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.

12. 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.

13. 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 this application alone. The petitions stand accordingly

disposed of.

Copy dasti.

(Sandeep Sharma) Judge

.

        27th September, 2021
            (reena)





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