Himachal Pradesh High Court

Karan Saini vs State Of Himachal Pradesh on 22 November, 2022

Bench: Sandeep Sharma

          IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                                                      Cr. MP (M) No. 2432 of 2022 a/w
                                                    Cr.MP(M) Nos.2445 &2460 of 2022




                                                                             .

                                                        Date of Decision: 22.11.2022
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     1. Cr.MP(M) No.2432 of 2022





     Karan Saini                                                                     ...Petitioner
                                                 Versus
     State of Himachal Pradesh                                             ...Respondent
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     2. Cr.MP(M) No.2445 of 2022

     Aditya Kaundal                                                                  ...Petitioner
                                                 Versus

     State of Himachal Pradesh                                             ...Respondent

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     3. Cr.MP(M) No.2460 of 2022

     Rinku Kumar                                                                     ...Petitioner



                                                 Versus
     State of Himachal Pradesh                                                  ...Respondent




     -----------------------------------------------------------------------------------------
     Coram:





     The Hon'ble Mr. Justice Sandeep Sharma, Judge.
     Whether approved for reporting?1
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     For the Petitioner(s)                     Mr. N.K.Thakur, Senior Advocate
                                               with Mr. Divya Raj Singh, Advocate.
     For the Respondent                            Mr. Sudhir Bhatnagar and Mr.
                                                   Narender   Guleria,    Additional
                                                   Advocate Generals with Mr. Sunny
                                                   Dhatwalia, Assistant    Advocate
                                                   General.
     -----------------------------------------------------------------------------------------
     Sandeep Sharma, J. (Oral)

Whether reporters of the local papers may be allowed to see the judgment?

Bail petitioners, namely Karan Saini, Aditya Kaundal and

Rinku Kumar, who are behind the bars for the last more than one year,

have approached this Court in the instant proceedings filed under

Section 439 of the Code of Criminal Procedure, praying therein to grant

regular bail in case FIR No.58 of 2021, dated 17.04.2021, registered at

police Station, Kangra, District Kangra, Himachal Pradesh under

Sections 302, 323, 341, 504, 147, 149 and 34 of IPC.

2. Respondent-State has filed status report and ASI Rakesh

r to Kumar has come present alongwith the record. Record perused and

returned.

Close scrutiny of the record/status report suggests that on

17.04.2021, complainant namely, Smt. Urmila Devi wife of late Sh.

Joginder Aggarwal got her statement recorded under Section 154

Cr.P.C., alleging therein that on 14.04.2021, while her both sons were

coming back from their work, accused namely Aman, who supplies milk

in the house of her sister-in-law reached below her house. Complainant

alleged that above named Aman had already called her two cousins,

who were sitting near Satyanarayan Mandir. Complainant further alleged

that her sister-in-law Smt. Surendra Devi, who had inimical relation with

her family, has made above named Aman Kumar her son. Complainant

also alleged that her sister-in-law was asking sons of her brother-in-law

namely Sumit, Sachin, Chakshu and Arpit to go below the house and

thereafter all the boys ran downwards and she also alongwith her

husband followed them and found that near Satyanarayan Mandir her

sons were being given beatings by person namely Aman as well as his

younger brother. Complainant alleged that when they intervened, Aman

not only hurled abuses but also made casteist remarks. Complainant

alleged that when they were going towards police Station from Bata Gali,

person namely, Aman called 7-8 boys and gave merciless beatings to

her husband, as a consequence of which, he suffered multiple injuries.

In the aforesaid backdrop, FIR, as detailed hereinabove, came to be

registered against persons namely Aman and Sahil Chaudhary.

However, subsequently, husband of the complainant namely Sh.

Joginder Aggarwal, who after having received injuries was admitted in

the hospital and referred to RPGMC Tanda, District Kangra, Himachal

Pradesh, passed away on 18.04.2021, as a result of which, Section

302 of IPC also came to be incorporated in the FIR. During

investigation police found role of present bail petitioners in the alleged

commission of offence alongwith main accused Aman and Sahil

Chaudhary and as such, their names also came to be incorporated in

the FIR. For the last more than one year all the bail petitioners are

behind the bars. Since investigation in the case is complete and nothing

remains to be recovered from the bail petitioners, coupled with the fact

that two co-accused namely Arpit Aggarwal and Akshay Thakur already

stand enlarged on bail, petitioners have approached this Court in the

instant proceedings for grant of regular bail.

4. While fairly admitting factum with regard to filing of the

challan in the competent court of law, Mr. Sudhir Bhatnagar, learned

Additional Advocate General, submits that though nothing remains to be

recovered from the bail petitioners, but keeping in view the gravity of

offence alleged to have been committed by them, they do not deserve

any leniency and as such, prayer made on their behalf deserves outright

rejection. While making this Court peruse the record, Mr. Bhatnagar,

learned Additional Advocate General, submits that there is

overwhelming evidence available on record suggestive of the fact that

present bail petitioners actively participated in the scuffle in which

Joginder Aggarwal expired after his having suffered injuries in the

alleged scuffle interse sons of the deceased Joginder Aggarwal and the

accused namely Aman and Sahil Chaudhary. Mr. Bhatnagar, contends

that as per CCTV footage bail petitioners were not only present there but

they also gave beatings to the son of the complainant and her husband,

as a result of which they all suffered multiple injuries and as such, it

cannot be said that they have been falsely implicated in the case. Lastly,

learned Additional Advocate General submits that since statements of

material prosecution witnesses are yet to be recorded, it may not be in

the interest of justice to enlarge the bail petitioners on bail because in

the event of their being enlarged on bail, they may not only flee from

justice, but may also temper with the prosecution evidence.

5. Having heard learned counsel for the parties and perused

the material available on record, this Court finds force in the submission

of learned counsel for the petitioners, who, while making this Court to

peruse DDR dated 15.04.2021 argued that at first instance Raghav

Kumar son of late Sh. Joginder Aggarwal alongwith mother i.e.

complainant, brother and deceased Joginder Aggarwal lodged a

complaint at police Station on 15.4.2021 at 1.20 AM, alleging therein that

on 14.4.2021, at about 10.30 PM, while he alongwith his brother was

going back to his house, person namely Aman Kumar not only started

hurling abuses but also gave beatings. Above named complainant also

alleged that his brother Satyam, whose shop is also in the middle Bazar

reached near Satyanarayan Mandir but accused persons namely Aman

Kumar and Sahil Chaudhary gave beatings to him as well as other family

members. Raghav while getting the report lodged on 15.4.2021 further

alleged that while they were taking their father to the hospital, Aman

Kumar and Sahil Chaudhary alongwith 7-8 friends reached near Bata

Gali and started giving beatings to him as well as other family members,

as a result of which, his father Sh. Joginder Aggarwal fell on the ground

and suffered injuries. After recording of aforesaid report in DDR,

deceased Joginder Aggarwal alongwith his son Raghav and complainant

went to Civil Hospital Kangra, where doctor after having examined him

opined injuries to be simple in nature i.e. bruise and contusion. However,

on 16.4.2021, deceased felt unwell and as such, he was taken to

Mission Hospital Kangra from where he was referred to RPGMC Tanda.

Deceased remained admitted at RPGMC, Tanda for two days and

unfortunately expired on 18.4.2021 at 8:30 PM.

6. Medical evidence adduced on record reveals that no

grievous injuries ever came to be inflicted on the person of deceased

Joginder Aggarwal in the alleged scuffle, if any, interse parties.

Postmortem report adduced on record by the prosecution reveals that

cause of the death of the petitioner at hand is "traumatic pneumothorax

as a consequence of blunt force chest trauma". Most importantly, it has

been opined in the aforesaid report that "findings are also consistent with

chronic lung disease". Though, postmortem report indicates that cause

of death can be on account of blunt force chest trauma but since there is

no history of any external injury suffered by deceased on account of his

having received beatings from the present bail petitioner and other

accused named in the FIR, chronic lung disease can be one of the factor

of the death of the deceased Joginder Aggarwal.

7. Record reveals that on 17.4.2021, police recorded the

statement of wife of deceased Joginder Aggarwal, who alleged that

while she alongwith her sons and husband was going to police station to

lodge report, persons namely, Aman, Sahil Chaudhary and Arpit

Aggarwal alongwith other accused named in the FIR reached on the

spot and gave beatings. If the aforesaid version put forth by the

complainant Smt. Urmila Devi, is perused juxtaposing initial report made

by Raghav son of deceased Joginder Aggarwal on 15.4.2021, as has

been taken note hereinabove, there appears to be merit in the

contention of learned counsel for the petitioners that at no point of time

names of present bail petitioners ever came to be mentioned in the initial

report lodged on 15.4.2021. Raghav while lodging report on 15.4.2021

specifically named two persons Aman and Sahil Chaudhary. If at that

time all the accused named in the FIR had given beatings to the

complainant as well as his deceased father, it is not understood why

Raghav at first instance failed to mention names of all the accused.

Leaving everything aside, even on 17.4.2021 complainant Urmila Devi

nowhere named present bail petitioners, rather she specifically named

Sumit, Sachin, Arpit and Chakshu.

8. Though, aforesaid aspects of the matter are to be

considered by the Court below in totality of evidence led on record by

the investigating agency, but this court having taken note of the fact that

bail petitioners are behind the bars for more than one year and till date

no charges have been framed against them, as a result of which, their

freedom is being curtailed for indefinite period during trial. Since

otherwise also there are material contradictions in the statements of

Raghav and complainant Urmila Devi while lodging reports dated

15.4.2021 and 17.4.2021, wherein admittedly both the parties never

named bail petitioners at first instance, prayer made on behalf of the

petitioners for grant of bail, especially when two co-accused namely

Arpit and Akshay already stand enlarged on bail, deserves to be

considered.

9. Though, at this stage, learned Additional Advocate

General submits that omission, if any, on the part of Raghav to mention

the name of present bail petitioners at the time of reporting the matter to

the police on 15.4.2021 may not be fatal to the case of the prosecution

because it is not necessary to give full particulars of the incident in the

FIR. However, this Court is not impressed with the aforesaid submission

of learned Additional Advocate General for the reason that even

subsequently on 17.4.2021 complainant Urmila Devi, who was otherwise

present alongwith Raghav at the time of lodging report on 15.4.2021

failed to take name of the present bail petitioner, rather she categorically

named persons namely, Aman, Sachin, Chakshu and Arpit.

10. Apart from above, this Court finds from the record that total

65 prosecution witnesses are to be examined; meaning thereby

considerable time is likely to be consumed in the conclusion of the trial,

especially when till date no prosecution witnesses have been examined.

All the bail petitioners are young and they are behind the bars for the last

more than one year.

11.

By now it is well settled that speedy trial is legal right of

the accused and one cannot be made to suffer indefinitely for delay in

trial and as such, this Court sees no reason to keep the bail petitioners

behind the bars for indefinite period during trial. Delay in trial has been

held to be in violation of the right guaranteed under article 21 of

Constitution of India. Reliance is placed on judgment passed by the

Hon'ble Apex Court in case titled Umarmia Alias Mamumia v. State of

Gujarat, (2017) 2 SCC 731, relevant para whereof has been reproduced

herein below:-

"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)."

12. 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 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 appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is r 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."

13. 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 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 and the order of the High Court is affirmed."

14. In the aforesaid judgment, Hon'ble Apex Court has held

that 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.

15. Hon'ble Apex Court as well as this Court have held in a

catena of judgments that one is deemed to be innocent, till the time

his/her guilt is proved in accordance with law, as such, there is no

justification to let bail petitioners incarcerate in jail for an indefinite

period during trial. Apprehension expressed by learned Additional

Advocate General that in the event of bail petitioners being enlarged on

bail, they may flee from justice, can be best met by putting the bail

petitioners to stringent conditions.

16. 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 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 r 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

17. 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 r 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."

18. 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.

19. 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.

20. In view of above, bail petitioners have carved out a case

for themselves. Consequently, present petitions are allowed and bail

petitioners are ordered to be enlarged on bail, subject to their furnishing

bail bonds in the sum of Rs.2,00,000/- each with two sureties in the like

amount, to the satisfaction of the learned trial Court, besides the

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