Himachal Pradesh High Court

_________________________________________________ vs State Of Himachal Pradesh on 9 March, 2023

Bench: Sushil Kukreja

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.438 of 2023

Reserved on: 01.03.2023 Date of Decision: 09.03.2023

_________________________________________________ Sukhwinder Singh ....Petitioner Versus

State of Himachal Pradesh ...Respondent _________________________________________________

Coram

Hon'ble Mr. Justice Sushil Kukreja, Judge Whether approved for reporting?1 ________________________________________________

For the petitioner: Mr. H.S.Rana, Advocate. For the respondent:

Mr. B.C. Verma, Additional Advocate General with Mr. R.P. Singh,

Deputy Advocate General.

________________________________________________

Sushil Kukreja, Judge

The instant bail application has been maintained

by the petitioner under Section 438 of the Code of Criminal

Procedure for grant of anticipatory bail, in the event of his

arrest, in case FIR No. 321/2022, dated 06.12.2022, under

Sections 302, 323, and 504 read with Section 34 of the

1 1. Whether reporters of Local Papers may be allowed to see the judgment? Yes.

Indian Penal Code (hereafter referred to as "IPC"), registered

at Police Station Nalagarh, Police District Baddi, H.P.

2. Status report stands filed.

3. As per the status report filed by the

respondent/State, on 06.12.2022, Shri Nand Lal, Chairman,

New Serenity Home Center, Nalagarh, made a complaint to

the police, wherein he stated that he received a telephonic

call from the Center that a quarrel took place in the Center

and a person, who sustained injuries in the quarrel, has been

taken to P.G.I. for treatment. Later on, the police was

informed that Deepak Kumar (aforesaid injured) died in PGI.

During the course of investigation, police recorded the

statement of one Vikram Singh, under Section 154 Cr.P.C.,

wherein he has stated that on 20.11.2022 he was admitted in

the Serenity Home Center, as he was a drug addict. He has

further stated that during the night of 5/6.12.2022, around

01:30 a.m., Sandeep Kumar, Gurwinder Singh, Imran Khan

and Hardeep Singh came inside the Centre and Sandeep

Kumar shouted the names of Sumit, Ashok, Deepak, Shivam

and Amrit Pal. Accused Sandeep slapped Deepak and other

accused also slapped him. Accused persons made Sumit

Kumar, Ashok, Deepak, Shivam and Amrit Pal to take off

their clothes and thereafter for about three hours, with

intervals, accused persons gave beatings to the above

persons. Accused Hardeep Singh gave beatings with the

help of bamboo stick. Thereafter, accused persons went

from the spot, however, around 07:00 a.m., in the morning,

accused persons again came back and gave beatings to the

above five persons. Deceased Deepak was lying on the

floor and he asked for water, so Vikram Singh and others

gave him water and he fell unconscious. Thereafter, accused

persons came inside and made Deepak to wear clothes and

took him outside. After half an hour, accused persons also

took other injured out of the room. Vikram Singh has further

stated in his statement that accused Hardeep Singh threw a

bamboo stick out of the room and while accused were giving

beatings, they were using abusive language and saying how

dare you brought chitta (heroin) inside. Injured Deepak was

shifted for treatment to PGI, however, he succumbed to the

injuries. Upon the statement of Shri Vikram Singh, police

registered a case and the investigation commenced. Police,

during the course of investigation, collected scientific

samples, effected relevant recoveries and recorded the

statements of the witnesses. Postmortem examination on

the corpse of the deceased was conducted. After the

incident, all the accused absconded, however, except for the

petitioner, all of them were arrested. The petitioner evaded

his arrest and ultimately he filed the instant bail petition

seeking anticipatory bail and vide order dated 22.02.2023, he

was granted interim bail.

4. The learned counsel for the petitioner

contended that the petitioner is innocent and he has been

falsely implicated in the present case. He also submitted that

the investigation of the case is complete and the custodial

interrogation of the petitioner is not required, therefore, it is

prayed that the petitioner be enlarged on bail.

5. Per contra, the learned Additional Advocate

General has opposed the application on the ground that the

petitioner is involved in a serious offence of murder and

beatings and keeping in view the gravity of the offence, he is

not entitled to be released on bail. He further contended that

the investigation in this case is in progress and the custodial

interrogation of the petitioner is required.

6. It is a settled law that the anticipatory bail can be

granted only in exceptional circumstances where the Court

is, prima facie, of the view that the petitioner has been falsely

implicated in the offence. Being an extraordinary remedy, it

should be resorted to only in a special case.

7. Having heard the learned counsel for the

petitioner as well as the learned Additional Advocate General

and after perusing the record of the case, it prima facie

reveals that at the time of the alleged incident, the petitioner

was present in Serenity Home Center. As per status report,

after committing the offence, the petitioner remained

absconded.Though, it would be inappropriate to discuss the

evidence in depth at this stage, because it is likely to

influence the trial Court, but the evidence collected during

investigation, particularly the statements of Shivam and Amit

Rana, prima facie, indicates the involvement of the petitioner

in a serious offence and there appears to be no reason to

falsely implicate the petitioner.

8. Once the allegations against the petitioner are of

such type, he cannot claim anticipatory bail as a matter of

right. It is a settled law that provisions for grant of

anticipatory bail under Section 438 Cr. P.C., are not to be

mechanically applied. Nature and gravity of the offence, the

position and status of the accused with reference to the

victim and witnesses, likelihood of the accused fleeing from

justice, possibility of the accused tampering with the

evidence and larger public interest are some of the

considerations which must weigh with the Court while

deciding the application for grant of anticipatory bail. Liberty

of a citizen is indeed of a paramount importance, but at the

same time, fair and fearless investigation of case of a serious

nature is of no less importance. The Court shall refrain from

exercising its discretion in favour of the accused under

Section 438, Cr. P.C., if it adversely affects the investigation

and larger public interest.

9. In XXXXX Versus Arun Kumar C.K. & Anr.,

2022 LiveLaw (SC) 870, it has been held by the Hon'ble

Supreme Court that custodial interrogation can be one of the

relevant aspects to be considered along with other grounds

while deciding an application seeking anticipatory bail. The

first and foremost thing that the court hearing an anticipatory

bail application should consider is the prima facie case put

up against the accused. The relevant portion of the judgment

is reproduced as under:-

"Be that as it may, even assuming it a case

where Respondent No.1 is not required for custodial interrogation, we are satisfied that the

High Court ought not to have granted discretionary relief of anticipatory bail. We are

dealing with a matter wherein the original complainant (appellant herein) has come

before this Court praying that the anticipatory bail granted by the High Court to the accused should be cancelled. To put it in other words, the complainant says that the High Court wrongly exercised its discretion while granting anticipatory bail to the accused in a very serious crime like POCSO and, therefore, the

order passed by the High Court granting

.

anticipatory bail to the accused should be

quashed and set aside. In many anticipatory bail matters, we have noticed one common

argument being canvassed that no custodial interrogation is required and, therefore, anticipatory bail may be granted. There

appears to be a serious misconception of law that if no case for custodial interrogation is made out by the prosecution, then that alone

would be a good ground to grant anticipatory

bail. Custodial interrogation can be one of the relevant aspects to be considered along with

other grounds while deciding an application seeking anticipatory bail. There may be many

cases in which the custodial interrogation of the accused may not be required, but that does

not mean that the prima facie case against the accused should be ignored or overlooked and

he should be granted anticipatory bail. The first and foremost thing that the court hearing an anticipatory bail application should consider is the prima facie case put up against the accused. Thereafter, the nature of the offence should be looked into along with the severity of the punishment. Custodial interrogation can be

one of the grounds to decline custodial

interrogation. However, even if custodial

interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory

bail.

10. In the instant case, since the petitioner-accused

is alleged to be involved in the commission of a serious

offence, hence, he is required to be interrogated. Therefore,

in view of the serious nature of allegations against him, a

wall cannot be created between the Investigating Agency

and the petitioner-accused. Moreover, the petitioner was

granted interim bail by this Court on 22.02.2023 and he was

ordered to join the investigation of the case, but as per the