Himachal Pradesh High Court
Durej Pal Alias Suresh Paul vs Unknown on 19 October, 2022
Bench: Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 19th DAY OF OCTOBER, 2022
.
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL MISC.PETITION (MAIN) No. 2249 OF 2022
Between:
NITIN, SON OF LATE DUREJ PAUL
ALIAS SURESH PAL, AGED ABOUT
22 YEARS, RESIDENT OF TRIVENI
NIWAS, HOUSE NO.43, SUNNY SIDE,
SOLAN, TEHSIL AND DISTRICT
SOLAN, HIMACHAL PRADESH
THROUGH HIS MOTHER SMT.
TRIVENI, WIFE OF LATE SHRI
DUREJ PAL ALIAS SURESH PAUL,
AGED 43, SUNNY SIDE, SOLAN,
TEHSIL AND DISTRICT SOLAN,
HIMACHAL PRADESH SINCE THE
PETITIONER IS IN JUDICIAL LOCK-
UP.
....PETITIONER
(BY MS. DHANVANTI, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
....RESPONDENT
(BY MR. NARINDER GULERIA,
ADDITIONAL ADVOCATE GENERAL
WITH MS. SVANEEL JASWAL
DEPUTY ADVOCATE GENERAL AND
MR. SUNNY DHATWALIA,
ASSISTANT ADVOCATE GENERAL)
Whether approved for reporting?
This petition coming on for orders this day, the Court passed the
following:
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2
ORDER
Bail petitioner namely, Nitin, who is behind the bars since
.
25.05.2022, has approached this Court in the instant proceedings filed under
Section 439 of the Code of Criminal Procedure, praying therein for grant of
regular bail in case FIR No. 47 of 2022, dated 24.05.2022, under Sections 307,
324, 341 and 506 of IPC, registered at police Station, Parwanoo, District Solan,
H.P.
2. Respondent-State has filed status report in terms of order dated
12.10.2022 and ASI Daljeet Singh has also come present alongwith the record.
Record perused and returned.
3. Close scrutiny of the record/status report reveals that on
24.05.2022, complainant Kusum Lata, lodged a complaint at police Station,
Parwanoo, District Solan, H.P., alleging therein that she has been working in
Cosmo Company, Jabli and prior to this, she had been working in Roma
Pharma Company Solan. She alleged that while she was working in Roma
Company, Solan, petitioner herein came into her contact and they became
friend. She alleged that bail petitioner wanted to solemnize marriage with her
but when she refused, bail petitioner got angry. She alleged that for the last 3-4
months, she had stopped talking to bail petitioner and had started working in
Cosmo Company, Jabli. She alleged that today at 6.00 PM, while she was
going back after office hours, bail petitioner, who was standing near the gate of
the company stopped her and asked why she does not talk to him and when
she told him that she does not want to talk with him, he attacked her with knife,
as a consequence of which, she suffered serious injuries on her neck/throat as
well as right eye. In the aforesaid background, FIR, as detailed hereinabove,
came to be lodged against the bail petitioner and he is in custody since
.
25.5.2022. Since investigation in the case is complete and challan stands filed
in the competent court of law, petitioner has 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. Narender Guleria, learned Additional Advocate
General, 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. He further states that
medical evidence adduced on record clearly reveals that though victim/
prosecutrix suffered simple injuries, but injury was caused by sharp edged
weapon and in case victim/prosecutrix had not made an attempt to save
herself, she would have received grievous injuries after being hit by the sharp
edged weapon. While opposing the prayer made on behalf of the petitioner,
learned Additional Advocate General contends that since statement of the
victim/prosecutrix is yet to be recorded, it may not be in the interest of justice to
enlarge the bail petitioner on bail because in the event of his being enlarged on
bail, he may not only flee from justice but may again cause harm to the
victim/prosecutrix.
5. Having heard learned counsel representing the parties and
perused the material available on record, this Court finds that some altercation
took place interse complainant and bail petitioner on the date of alleged
incident and bail petitioner attacked the complainant with paper cutter, as a
consequence of which, she suffered injuries on her eye and neck. Doctor in
MLC though has stated that injury was caused by sharp edged weapon, but
.
has categorically opined that in the alleged incident complainant has suffered
simple injuries. No doubt, complainant was attacked with sharp edged weapon
but since it stands recorded in the MLC rendered by the Doctor that in the
alleged incident complainant suffered simple injuries, coupled with the fact that
bail petitioner is already behind the bars for more than four months, there
appears to be no reason/justification to let the bail petitioner incarcerate in jail
for indefinite period during the trial, especially guilt, if any of him is yet to be
established on record. Though, in status report it has been claimed that the
petitioner has admitted his guilt but confession, if any, made by the accused
during the investigation is of no consequence, rather offence, if any, alleged to
have been committed by him is required to be proved in accordance with law
by the prosecution by leading cogent and convincing evidence.
6. Hon'ble Apex Court as well as this Court have held in catena of
cases that one is deemed to be innocent till the time his /her guilt is not proved,
in accordance with law and as such, this Court sees no reason to curtail the
freedom of the bail petitioner for indefinite period during the trial, especially
when nothing remains to be recovered from him. Apprehension expressed by
learned Additional Advocate General that in the event of bail petitioner being
enlarged on bail, he may flee from justice or may again indulge in such
activities, can be best met by putting bail petitioner to stringent conditions.
7. 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 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
deemed indigent status of an accused is also an extremely
important factor and even Parliament has taken notice of it by
rincorporating 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. 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."
9. 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.
10. 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. Consequently, in view of the above, present bail petition is
allowed. Petitioner is ordered to be enlarged on bail, subject to his furnishing
personal bond in the sum of Rs. 50,000/- with one surety in the like amount, to
the satisfaction of the learned 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;
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 her
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.
12. It is clarified that if the petitioner misuses his liberty or violates
any of the conditions imposed upon him, 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 bail petition stands disposed of accordingly.
14. Learned counsel for the petitioner is permitted to produce copy of
order downloaded from the High Court website before the trial Court, who shall
.
not insist for certified copy of the order, however, it may verify the order from
the High Court website or otherwise.
19th October,2022 (Sandeep Sharma),
(shankar) Judge
r to
