Himachal Pradesh High Court

___________________________________________________ vs State Of Himachal Pradesh on 20 October, 2023

Bench: Sushil Kukreja

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP (M) No. 2528 of 2023 Reserved: 17.10.2023 Decided on: 20.10.2023

___________________________________________________ Rajeev Mahto ....Petitioner Versus

State of Himachal Pradesh ...Respondent

Coram The Hon'ble Mr. Justice Sushil Kukreja, Judge. Whether approved for reporting?1 __________________________________________________ For the petitioner : Mr. N.K. Thakur, Senior Advocate with Mr. Divya Raj Singh, Advocate.

For the respondent : Mr. Jitender Sharma, Additional Advocate General.

Sushil Kukreja, Judge

By way of instant petition, filed under Section 439 of

the Criminal Procedure Code, the petitioner is seeking bail in

case FIR No. 332/2020, dated 30.08.2020, registered at Police

Station Una, District Una, H.P., under Sections 307, 323, 324,

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

325, 326 and 34 of the Indian Penal Code (hereinafter referred

to as "IPC").

2. The prosecution story, in brief, is that on

29.08.2020, a telephonic information was received from

Regional Hospital, Una, at Police Station Una, that one Suresh

Kumar has been brought to the hospital in an injured condition

for treatment. Upon receiving such information, the police party

reached Regional Hospital, Una and procured the MLC of the

injured, who was not in a position to give statement. Thereafter,

the police party went to the place of occurrence and recorded

the statement of Gagan Verma, who in his statement stated that

today (29.08.2020) at about 8:45 P.M. when after having dinner,

he was walking outside his house, he heard noise of fighting

coming from Trishma Hotel side. When he reached there, he

saw that three persons were attacking Suresh Kumar with rods.

After receiving beatings, blood started oozing from his head and

he was crying in pain. In the meantime, father of Suresh

Kumar also reached the spot and they brought him to Hospital

at Una. Thereafter, the police completed all the codal formalities

and initially FIR, under Sections 325, 324, 307 and 34 of IPC

came to be registered. On 31.08.2020 accused Ram Dulaar

alias Ramu and accused Amarjeet alias Aamu were arrested.

During investigation, accused Ram Dulaar Bind got recovered

iron rod used by them for beating the injured. During further

investigation, it was found that on 29.08.2020, at about 8:15

P.M., accused Ram Dulaar alias Ramu, Amarjeet alias Aamu

and Rajeev Mahto (petitioner herein), who were under the

influence of liquor, went to the shop of the injured to purchase

cigarettes and qua payment thereof, they had an altercation.

Thereafter, the accused persons left the spot and at about 8:45

P.M., they came back with iron rod and assaulted the injured.

After final opinion from Medical Officer, Regional Hospital, Una,

Sections 326 and 323 were incorporated in the FIR. Accused

Rajeev Mahto, who is the resident of Bihar had absconded and

was arrested on 31.07.2023 by the Special Investigation Team.

3. The bail application has been filed on the ground

that he is innocent and has been falsely implicated in the

present case. Learned Senior Counsel for the petitioner

submitted that the petitioner is behind the bars since

31.07.2023 and no fruitful purpose will be served by keeping

him behind the bars for an unlimited period, as trial is not going

to be completed in near future. He also submitted that both the

co-accused have already been released on bail by the learned

trial Court, as such, the petitioner also deserves to be released

on bail on the ground of parity.

4. Conversely, the learned Deputy Advocate General

has submitted that the petitioner does not deserve to be

released on bail as he has been found involved in a serious

offence, so at this stage, in case he is enlarged on bail, he may

tamper with the prosecution evidence and may also flee from

justice.

6. I have given my considered thought to the rival

contentions raised and also gone through the police file as well

as the status report filed by the prosecution. The perusal of the

record reveals that the investigation in the case is complete and

the petitioner is lodged in judicial custody since 31.07.2023. In

Sanjay Chandra Vs. Central Bureau of Investigation, (2012)

1 Supreme Court Cases 49, it has been held that the object of

bail is to secure the appearance of the accused person at his

trial by reasonable amount of bail and that every man is deemed

to be innocent until duly tried and duly found guilty. Relevant

portion of the aforesaid judgment reads as under:-

"21. In bail applications, generally, it has been laid down from the earliest times that 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.

22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted 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 this country, 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.

23. Apart from the question of prevention being the object of a 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 un-convicted person for the purpose of giving him a taste of imprisonment as a lesson."

7. In Manoranjana Sinh alias Gupta Vs. CBI, (2017)

5 SCC 218, the Hon'ble Apex Court reiterated the decision

rendered in Sanjay Chandra's case (supra) by holding as

under:-

"16. This Court in Sanjay Chandra Vs. Central Bureau of Investigation (2012) 1 SCC 40, 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 nor 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 a 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 and 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 that 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."

8. Similar reiteration of law can be found in Dataram

Singh Vs. State of Uttar Pradesh & Another,(2018) 3 SCC 22,

wherein it has been held that a person is believed to be innocent

until found guilty and the grant of bail is the general rule and

putting a person in jail or in a prison or in a correction home is

an exception. Relevant portion of the aforesaid judgment reads

as under:-

"1. 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.

..................

4. 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."

9. In the instant case, as observed earlier, the

investigation in the case is complete and the petitioner is lodged

in judicial custody. The trial is still to commence, which may take

sufficiently long time to conclude. Moreover, the complicity, if

any, of the petitioner is yet to be established on record, as such,

no fruitful purpose will be served by keeping him behind the bars

for an unlimited period. The prosecution has failed to produce

any material on record to suggest that the petitioner will tamper

with the prosecution evidence or will abscond and flee from

justice, if enlarged on bail. Furthermore, the other co-accused

have already been released on bail by the learned trial Court, as

such, the petitioner also deserves to be released on bail on the

ground of parity.

10. Hence, after going through the material available on

record and considering the overall facts and circumstances of

the case, this Court finds that the present is a fit case where

judicial discretion to admit the petitioner on bail is required to be

exercised in his favour. Accordingly, all the bail application is

allowed and it is ordered that the petitioner, who has been

arrested by the police, in case FIR No. 332/2020, dated

30.08.2020, registered at Police Station Una, District Una, H.P.,

under Sections 307, 323, 324, 325, 326 and 34 of IPC, shall be

forthwith released on bail, subject to his furnishing personal

bonds to the tune of Rs. 50,000/- (Rupees fifty thousand), with

one local surety of district Una in the like amount, to the

satisfaction of learned Trial Court. This bail order is subject,

however, to the following conditions:-

(i) that the petitioner will appear before the Court and the Investigating Officer whenever required ;

(ii) that he will not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing any facts to the Court or the police;

(iii) that he will not tamper with the prosecution evidence nor he will try to win over the Prosecution witnesses or terrorise them in any manner;

(iv) that he will not deliberately and intentionally act in a manner which may tend to delay the investigation or the trial of the case.

(v) that he will not leave India without prior permission of the Court.

11. Needless to say that the Investigating agency shall

be at liberty to move this Court for cancellation of the bail, if any

of the aforesaid conditions is violated by the petitioners.

12. 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.

13. The Registry is directed to forward a soft copy of

the bail order to the Superintendent, District Jail, Una at

Bangarh, through e-mail, with a direction to enter the date of

grant of bail in the e-prison software.

14. In case, the petitioner is not released within a

period of seven days from the date of grant of bail, the

Superintendent, District Jail, Una at Bangarh, is directed to

inform this fact to the Secretary, DLSA, Una. The

Superintendent, District Jail, Una at Bangarh, is further

directed that if the petitioner fails to furnish the bail bonds, as

per the order passed by this Court, within a period of one

month from today, the said fact be submitted to this Court.




                                                          ( Sushil Kukreja )
October 20, 2023                                             Judge
     (raman)
             Digitally signed by VIRENDER BAHADUR

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