_________________________________________________ vs State Of Himachal Pradesh
2023 Latest Caselaw 17693 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr.MP(M) No.1964 of 2023

Reserved on : 04.10.2023 Date of Decision: 08.11.2023

_________________________________________________ Abhishek alias Mittu ....Petitioner Versus

State of Himachal Pradesh ...Respondent _________________________________________________ Coram

Hon'ble Mr. Justice Sushil Kukreja, Judge

Whether approved for reporting?1 ________________________________________________ For the petitioner: Mr. Umesh Kanwar, Advocate.

For the respondent: Mr. Raj Kumar Negi, Additional Advocate General.

________________________________________________

Sushil Kukreja, Judge The instant bail application has been filed by the

petitioner under Section 439 of the Code of Criminal

Procedure (Cr.P.C.) for grant of bail in case FIR

No.167/2021, dated 28.11.2021, under Sections 436, 380 &

457 of the Indian Penal Code (for short, 'IPC'), registered at

Police Station Nagrota Bagwan, District Kangra, H.P.

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

2. Brief facts of the case, as per the status report

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filed by the respondent-State, are that on receipt of a

telephonic information that a fire broke out in a shop at Main

Bazar, New Bus Stand, Nagrota Bagwan, the police as well

as a team of RFSL visited the place of occurrence and

collected scientific samples for analysis. During the

investigation, the complainant, i.e. owner of the shop,

disclosed that an amount of Rs.10,000/- and a laptop, which

were inside the shop, were also missing. After analysis of

the scientific samples, it was found that shop was set ablaze

by some unknown person, therefore, an FIR was registered

under Section 436 IPC.

3. During the course of investigation, police

prepared the spot map, recorded the statements of the

witnesses and thereafter, Sections 457 and 380 of IPC were

added in the FIR. On 13.11.2021, one Abhishek @ Mittu

(petitioner herein) was arrested in connection with FIR

No.158 of 2021, dated 13.11.2021, registered under Section

436 IPC, who during the course of interrogation, disclosed to

the police that during the intervening night of 07/08.10.2021,

he set on fire the shop of Darshan Lal and had also stolen a

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laptop alongwith cash from the shop, hence, he (petitioner)

was arrested in the present case. The petitioner got

recovered the laptop, which was stolen by him from the

aforesaid shop. The police also procured the CCTV footage

obtained in FIR No.158 of 2021, in which, the presence of

the petitioner was depicted on the place of occurrence and

the said footage matched with the petitioner. The

complainant produced two abstracts of building costs, as per

which, he suffered the total loss to building due to fire to the

extent of Rs.12,92,672/- and Rs.23,05,903/- and the loss of

items to the tune of Rs.32,65,959/- and Rs.26,95,898/-.

4. The bail application has been filed by the

petitioner on the ground that he is innocent and has been

falsely implicated in the present case. Learned counsel for

the petitioner contended that as per RFSL report, no

conclusion has been arrived at by the expert about the

identification of the petitioner on the date and the place of the

incident. He further contended that the investigation of the

case is complete, as such, the petitioner, who is in custody

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since 28.11.2021, may be released on bail.

5. Per contra, the learned Additional Advocate

General has opposed the application on the ground that the

petitioner is involved in the serious offence and keeping in

view the gravity of the offence, he is not entitled to be

released on bail. r

6. I have heard the learned counsel for the

petitioner as well as learned Additional Advocate General

and have also gone through the record of the case. From the

perusal of the record, I am of the firm opinion that the

petitioner has not made out a case for grant of bail, as prima

facie there appears to be an active involvement of the

petitioner in the alleged incident of fire as well as theft and

there is also sufficient material against him collected by the

investigating agency.

7. The law with respect to the grant or refusal of bail

is well settled. It has been held by the Hon'ble Supreme

Court in a catena of judgments that the grant of bail involves

the balancing of numerous factors, among which the nature

of the offence, the severity of the punishment and a prima

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facie view of the involvement of the accused are important.

At the stage of assessing whether a case is fit for the grant of

bail, the court is not required to enter into a detailed analysis

of the evidence on record to establish beyond reasonable

doubt the commission of the crime by the accused. However,

the Court is required to examine whether there is a prima

facie or reasonable ground to believe that the accused had

committed the offence and on a balance of the

considerations involved, the continued custody of the

accused sub-serves the purpose of the criminal justice

system. In Chaman Lal Vs. State of U.P. and Another,

(2004) 7 SCC 525, the Apex Court has laid down requisite

factors for consideration of bail i.e., (i) nature of accusation

and the severity of punishment in case of conviction and the

nature of supporting evidence, (ii) reasonable apprehension

of tampering with the witness or apprehension of threat to

the complainant, and (iii) prima facie satisfaction of the court

in support of the charge.

8. In Kalyan Chandra Sarkar Vs Rajesh Ranjan

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alias Pappu Yadav and Another, (2004) 7 SCC 528, the

Hon'ble Apex Court has held that the Court granting bail

should exercise its discretion in a judicious manner and not

as a matter of course. The relevant portion of the aforesaid

judgment reads as under:-

"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its

discretion in a judicious manner and not as a matter or course. Though at the stage of granting bail a detailed

examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted

particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of

mind. It is also necessary for the court granting bail to consider among other circumstances, the following

factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of

supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge.

9. The Hon'ble Apex Court referred to the factors to

be borne in mind while considering an application for bail in

Prasanta Kumar Sarkar vs Ashis Chatterjee and another,

.

(2010) 14 SCC 496 and the said factors are as follows:

9...............

"(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.

..........."

10. In Central Bureau of Investigation Vs. V. Vijay

Sai Reddy, (2013) 7 SCC 452, the Apex Court has reiterated

the principle by observing as follows:-

"34. While granting bail, the court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the legislature has used the words reasonable grounds for believing instead of the evidence which

means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case

.

against the accused and that the prosecution will be

able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond

reasonable doubt."

11. In Virupakshappa Gouda Vs. The State of

Karnataka, AIR 2017 SC 1685, the Apex Court held that an

order of bail cannot be granted in an arbitrary or fanciful

manner. The relevant portion of the aforesaid judgment

reads as under:-

"18. From the aforesaid principles, it is quite clear that an order of bail cannot be granted in an arbitrary or

fanciful manner. In this context, we may, with profit, reproduce a passage from Neeru Yadav Vs. State of Uttar Pradesh, wherein the Court setting aside an order

granting bail observed:-

"The issue that is presented before us is whether this

Court can annul the order passed by the High Court and curtail the liberty of the 2nd respondent. We are not oblivious of the fact that the liberty is a priceless

treasure for a human being. It is founded on the bed rock of constitutional right and accentuated further on human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilized society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be paralysed and immobilized. Deprivation of liberty of a person has

enormous impact on his mind as well as body. A democratic body polity which is wedded to rule of law,

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anxiously guards liberty. But, a pregnant and significant

one, the liberty of an individual is not absolute. The society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an

individual when an individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects

responsibility and accountability from the member, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem

of social stream. It is impermissible. Therefore, when an individual behaves in a disharmonious manner ushering

in disorderly things which the society disapproves, the legal consequences are bound to follow. At that stage, the Court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or caprice.

It has to be guided by the established parameters of law."

12. In Anil Kumar Yadav Vs. State (NCT) of Delhi,

AIR 2017 SC 5398, the Apex Court by relying upon various

judgments held that for ensuring the fair trial, witnesses must

be in a position to freely depose without fear. The relevant

portion of the aforesaid judgment reads as under:-

"29. In the present case, the trial is at a very crucial stage. The trial court is yet to record the testimony of material witnesses including the complainant as well as all the material witnesses. The trial has commenced and the trial is said to be posted for 04.12.2017. For ensuring the fair trial, witnesses must

be in a position to freely depose without fear. In the facts and circumstances of the case, we are

.

convinced that a fair trial can be ensured only if the

appellants are not enlarged on bail.

30. We are conscious of the fact that the appellants are only under trials and their liberty is also a relevant

consideration. But equally important is to consider the impact of their release on bail on the prosecution witnesses and also its impact on society. In order to ensure that during trial the material witnesses depose

without fear and justice being done to the society, a balance has to be struck. Referring to Masroor v. State of Uttar Pradesh and another (2009) 14 SCC 286 and other cases, in State of Bihar v. Rajballav

Prasad alias Rajballav Prasad Yadav alias Rajballabh Yadav (2017) 2 SCC 178, this Court held as under:-

"26. We are conscious of the fact that the respondent is only an undertrial and his liberty is also a relevant consideration. However, equally important consideration is the interest of the society

and fair trial of the case. Thus, undoubtedly the courts have to adopt a liberal approach while considering bail applications of the accused

persons. However, in a given case, if it is found that there is a possibility of interdicting fair trial by the

accused if released on bail, this public interest of fair trial would outweigh the personal interest of the accused while undertaking the task of balancing the

liberty of the accused on the one hand and interest of the society to have a fair trial on the other hand. When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice-delivery system. It is this need for larger public interest to ensure that criminal justice-delivery system works efficiently, smoothly and in a fair manner that has to be given prime importance in such situations. After all, if there is a threat to fair trial because of intimidation

of witnesses, etc., that would happen because of wrongdoing of the accused himself, and the

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consequences thereof, he has to suffer........"

[underlying added]"

13. In Mahipal vs. Rajesh Kumar @ Polia and

another, (2020) 2 SCC 118, the Hon'ble Apex Court held

that the power to grant bail under Section 439 of Cr.P.C. is of

a wide amplitude. Though the grant of bail involves the

exercise of discretionary power of the Court, it has to be

exercised in a judicious manner and not as a matter of

course. In the said case, the guiding factors for exercise of

power to grant bail as held in Ram Govind Upadhyay vs.

Sudarshan Singh (2002) 3 SCC 598, were referred, which

are as follows:-

"11.............

3. Grant of bail though being a discretionary order but, however, calls for exercise of such a discretion in a

judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case...The nature of the offence is one of the basic considerations for the grant of bail - more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.

4. Apart from the above, certain other which may be attributed to be relevant considerations may also be

.

noticed at this juncture, though however, the same are

only illustrative and not exhaustive, neither there can be any. The considerations being:

(a) While granting bail the court has to keep in mind not

only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.

(c) While it is not expected to have the entire evidence establishing the guilt of the Accused beyond reasonable

doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.

(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall

have to be (2002) 3 SCC 598 considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the

normal course of events, the Accused is entitled to an order of bail."

14. In view of the above stated authoritative

pronouncement of law laid down by the Apex Court, coming

to the facts of the case on hand. The perusal of the status

report reveals that the alleged incident of setting on fire the

shop of the complainant took place during the intervening

night of 7/8-10-2021, however, no FIR was registered

regarding said incident as police was not aware as to

whether the fire was result of short circuiting, but when

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another incident of similar nature took place in the same

shop during the intervening night of 12/13.11.2021, FIR

No.158/21, dated 13.11.2021, under Sections 436 of IPC

was registered and during the course of investigation of that

case, the petitioner was arrested on 28.11.2021 and he

made a disclosure statement about his involvement in both

the incidents of setting on fire the shop of the complainant,

pursuant to which, the police also got recovered the laptop.

The status report also prima facie reveals the presence of

the petitioner near the place of occurrence and that the

complainant has suffered huge loss to his building as well as

to the items kept therein due to the fire.

15. Therefore, keeping in view the nature of the

allegations leveled against the petitioner and the fact that two

cases of Section 436 of IPC have been registered against

him and also in view of the larger public interest, the present

is not a fit case to exercise the discretion under Section 439

of Cr. P.C. in favour of the petitioner.

16. Hence, for the reasons mentioned above, the bail

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application filed by the petitioner is dismissed.

17. Be it stated that any expression of opinion given

in this order does not mean an expression of opinion on the

merits of the case and the trial Court will not be influenced by

any observations made therein.

                                                ( Sushil Kukreja )
                        r                             Judge

     November 08, 2023
           (VH)