Himachal Pradesh High Court

Rahul Baniyal vs State Of Himachal Pradesh on 25 November, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

                                                                                  2024:HHC:12439




     IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                                                 Cr. MP (M) No. 2117 of 2024 with
                                                       Cr.MP(M) No.2189 of 2024
                                                        Date of Decision: 25.11.2024
-----------------------------------------------------------------------------------------
1. Cr. MP (M) No. 2117 of 2024

Rahul Baniyal                                                                   ...Petitioner
                                            Versus
State of Himachal Pradesh                                             ...Respondent
----------------------------------------------------------------------------------------
2. Cr. MP (M) No. 2189 of 2024

Bhawani Singh Katoch                                                            ...Petitioner
                                            Versus
State of Himachal Pradesh                                                   ...Respondent

-----------------------------------------------------------------------------------------
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1
---------------------------------------------------------------------------------------
For the Petitioner(s):                    Mr.       N.K.Thakur            and        Mr.
                                          N.S.Chandel, Senior Advocates
                                          with Mr. Divya Raj Singh and Mr.
                                          Vinod Gupta, Advocates.
For the Respondent:                           Mr.     Rajan Kahol, Mr. Vishal
                                              Panwar and Mr. B.C.Verma,
                                              Additional Advocate Generals with
                                              Mr. Rahul Thakur, and Mr. Ravi
                                              Chauhan,      Deputy   Advocate
                                              Generals.
-----------------------------------------------------------------------------------------
Sandeep Sharma, J. (Oral)

Bail petitioners namely, Rahul Baniyal and Bhawani

Singh Katoch, who are behind the bars since 16.6.2024 have

approached this Court in the instant proceedings filed under

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

2 2024:HHC:12439

Section 483 of the Bharatiya Nagarik Suraksha Sanhita for grant of

regular bail in case FIR No.37 of 2024, dated 29.02.2024, under

Sections 307, 325, 341, 323, 504, 506 and Section 34 of IPC,

registered at police Station, Damtal, District Kangra, Himachal

Pradesh. Respondent-State has filed status report and ASI Vicky

Raj, has come present alongwith the record. Record perused and

returned.

2. Close scrutiny of the record/status report reveals that

on 29.02.2024, complainant Rajinder Singh, who is a wrestler, got

his statement recorded under Section 154 Cr.P.C, alleging therein

that on 28.2.2024, at about 9.50 PM, while he was going towards

his house from Sekhupur driving car bearing registration No.

HP-38-H-4545(Kia seltos), victim/injured Abhishek was also going

towards his village driving car bearing registration No.PB-35-7171.

He alleged that when he as well as Abhishek, who at that relevant

time was driving his vehicle ahead of his car, had reached near

railway crossing Kandrori, railway crossing was closed. He alleged

that since he as well as Abhishek was waiting for opening of

railway crossing, persons namely, Bhawani, Abu, Manjit and Rahul

Baniyal came from Atria side and started hurling abuses to victim/

injured Abhishek. He alleged that afore persons, besides hurling

abuses and extending threats, also pulled Abhishek out of his car

and gave him merciless beatings with Darat (sickle) and fists, as a 3 2024:HHC:12439

result thereof, above named Abhishek suffered grevious injuries.

He alleged that he immediately intervened and tried to stop

persons, as detailed hereinabove, from giving beatings to

victim/injured. He alleged that he also telephonically informed his

brother Randhir Singh with regard to quarrel, who also reached on

the spot, but before persons responsible for giving beatings to

Abhishek could be apprehended, they fled from the spot.

Complainant alleged that he immediately took the victim/injured to

Amandeep hospital, Pathankot. Police after having reached the

hospital, as detailed hereinabove, though attempted to record the

statement of the victim/ injured Abhishek, but since he was not

declared fit by the doctor attending upon him, police was unable to

record his statement and as such, police started investigation on

the basis of the statement made by the complainant, named

hereinabove.

3. After having obtained medical opinion from the doctor

attending upon the victim/injured Abhishek, who opined injuries

suffered by the victim/injured, named hereinabove, to be grevious

and dangerous to life, police at first instance, apprehended person

namely Manjit, who at relevant time was already behind the bars in

another FIR No.21 of 2024. Other accused namely, Bhawani and

Rahul (petitioners herein) and Abu, though at first instance,

attempted to obtain anticipatory bail from this Court, but such 4 2024:HHC:12439

prayer of them was not accepted and as such, they after having

withdrawn their petitions filed for anticipatory bail, surrendered and

since then they are behind the bars. Since challan stands filed in

the competent court of law and nothing remains to be recovered

from the bail petitioners, coupled with the fact that bail petitioners

are behind the bars for more than five months, prayer has been

made on their behalf for grant of regular bail.

4. Mr. N.K. Thakur and Mr. N.S Chandel, learned Senior

counsel duly assisted by Mr. Divya Raj Singh and Mr. Vinod Gupta,

Advocates, representing the petitioners, vehemently argued that

though bare perusal of status report, nowhere suggests that bail

petitioners herein gave beatings to the victim/ injured, but even

otherwise, this Court cannot lose sight of the fact that bail

petitioners have already suffered for more than five months and

their right to bail is being attempted to be defeated by the

prosecution on the false pretext that victim/injured is not in a fit

state of mind, whereas there is ample material available on record

suggestive of the fact that victim/injured has fully recovered from

the injuries suffered by him in the incident and he had been not

only attending public function, but is also roaming here and there

with his friends. While referring to the fresh status report filed by

the respondent-State, learned Senior counsel representing the

petitioners submitted that victim/injured is out of danger and after 5 2024:HHC:12439

his being discharged from Dayanand Medical College, Ludhiana,

he has been visiting his nearby relatives. Learned Senior counsel

representing the petitioners further argued that though certificate

adduced on record allegedly given by doctor attending upon the

victim/injured, suggests that on account of injury suffered by the

victim/injured, there is a loss of memory and forgetfulness and

irrelevant behaviour, but such fact, if any, may not be a ground to

deny the bail to the petitioners, especially when guilt, if any, of

them is yet to be established on record by the prosecution by

leading cogent and convincing evidence. While making this Court

peruse certain photographs, learned Senior counsel representing

the petitioners further submitted that the victim/injured has fully

recovered from the injuries and at present is hale and hearty and

false information is being given to this Court as well as police with

regard to ill-health of the victim/injured, so that prayer made on

behalf of the petitioners for grant of bail cannot be accepted.

5. While fairly acknowledging the factum with regard to

filing of the challan in the competent court of law, Mr. Rajan Kahol,

learned Additional Advocate General, states that though nothing

remains to be recovered from the bail petitioner, but keeping in

view gravity of the offence alleged to have been committed by

them, they do not deserve any leniency. While making this Court

peruse status report as well as record brought by the Investigating 6 2024:HHC:12439

Officer, Mr. Kahol, states that number of criminal cases already

stand registered against the petitioners, which itself suggests that

they are hardened criminal and in the event of their being enlarged

on bail, they may not only flee from justice, but may again cause

harm to the victim/injured. Learned Additional Advocate General

further submitted that there is overwhelming evidence adduced on

record suggestive of the fact that bail petitioners alongwith other

two accused namely, Manjeet and Abu had planned to kill victim/

injured Abhishek and in that regard, though severe injuries were

inflicted, but with timely medical intervention, life of victim/injured

could be saved. Learned Additional Advocate General further

submitted that since statement of victim/injured is yet to be

recorded, coupled with the fact that in past, same attempt to kill

him was made by the accused, named in the FIR, it may not be in

the interest of justice to enlarge bail petitioners on bail, rather

having taken of their antecedents, their prayer for grant of bail may

be rejected.

6. Having heard learned counsel for the parties and

perused material available on record, this Court finds that till date,

statement of victim/injured has not been recorded by the police.

Alleged incident had taken place on 29.02.2024, but despite

repeated attempts, police has been not able to record the

statement of the victim/injured. Status report reveals that though 7 2024:HHC:12439

on number of occasions Investigating Officer sought permission

from the doctor attending upon the victim/injured to record his

statement, but since victim/ injured was declared unfit, his

statement could not be recorded. It also clearly emerges from the

record that at present victim/ injured stands discharged from the

hospital and after his discharge, he had been staying with his sister

at Ludhiana. Since, on the last date of hearing, Sh. N.K. Thakur,

learned Senior counsel representing one of the bail petitioner had

raised serious doubt with regard to correctness of the averments

contained in the status report with regard to ill-health of the

victim/injured, this Court vide order dated 6.11.2024 specifically

called upon learned Additional Advocate General to have

instructions with regard to correctness of photographs/video made

available to this Court suggestive of the fact that victim/injured is

fully fit and can be seen sitting in Ram Lila on 4th October, 2024.

Pursuant to afore order passed by this Court, respondent-State

has filed status report, perusal whereof clearly reveals that victim/

injured after his discharge from Dayanand Medical College,

Ludhiana not only visited his sister at Ludhiana, but thereafter he

had been also attending public functions alongwith his friends.

Though, police after passing of order 6.11.2024 repeatedly

attempted to record the statement of the victim/injured, but every

time he was not found at home, rather police was informed that he 8 2024:HHC:12439

has gone to Ludhiana for checkup. Since victim/injured already

stands discharged from DMC, Ludhiana, there is otherwise no

requirement, if any, for the police to have prior permission of the

doctor to record the statement of the victim/injured. Moreover, this

Court finds that at no point of time, victim/injured after his being

discharged from DMC, Ludhiana ever attempted to come present

before the police to make a statement, rather there appears to be

repeated attempts on his part to evade the police.

7. Having perused the photographs as well as video

adduced on record, veracity of which has been verified by the

police in the latest status report, this Court finds that victim/injured

has recovered from the injuries suffered by him in the alleged

incident and he had been attending public function with his family

members and his friends. No doubt offence alleged to have been

committed bail petitioners is grevious and cannot be taken lightly,

but status report if perused in its entirety, nowhere attributes

specific role, if any, played by the bail petitioners by giving beatings

to the victim/injured, rather complainant Rajinder Singh in his

statement stated that persons namely, Manjeet, Bhawani, Abu and

Rahul Baniyal gave beatings to Abhishek with Darat and fist blows.

Whether injuries suffered by victim/injured Abhishek, which

subsequently came to be opined to be dangerous to life, were

actually inflicted by bail petitioners herein, is a question to be 9 2024:HHC:12439

deiced by the Court below in totality of evidence to be collected on

record by the prosecution.

8. No doubt, status report reveals that in past six criminal

cases stand registered against bail petitioner Bhawani Singh, but

information made available by learned Additional Advocate

General pursuant to the direction issued by this Court, suggest that

out of six cases, two have been disposed of and four criminal

cases are still pending. Learned Senior counsel representing bail

petitioner Bhawani Singh, while refuting aforesaid submission

made by learned Additional Advocate General, submitted that FIR

Nos.287 of 2016 and 26 of 2019 already stand quashed by this

Court, while exercising power under Section 482 Cr.P.C. He

further submitted that out of six cases, as detailed in status report,

two were tried by Gram Panchayat concerned and in such cases

matter has been compromised, as result thereof, FIR Nos.

104/2018 and 147 of 2021 also stand settled. He submitted that as

of today, only two cases in FIR Nos. 23/2021 and 59 of 2022 are

pending adjudication, wherein admittedly guilt, if any, of the

petitioner Bhawani Singh is yet to be established on record.

9. As per status report, one case was registered against

bail petitioner Rahul Baniyal, but same also stands settled. It is

important to note that victim/injured Abhishek is/was co-accused in

FIR No.26 of 2019 alongwith petitioner Bhawani Singh, which now 10 2024:HHC:12439

stands quashed. Since in majority of cases, bail petitioner

Bhawani Singh stand acquitted and there is no case pending

against bail petitioner Rahul Baniyal, mere pendency of two FIRs

may not be a ground for this Court to reject the prayer made on

behalf of the bail petitioners for grant of bail. It is also not in dispute

that qua alleged incident of 29.02.2024 bail petitioner Bhawani

Singh had filed cross FIR against the victim/injured Abhishek and

others, which is also pending adjudication in the competent court of

law.

10. Though, case at hand is to be decided by learned trial

Court in the totality of evidence collected on record by the

prosecution, but keeping in view the aforesaid aspects of the

matter, this Court sees no reason to curtail the freedom of the bail

petitioners for an indefinite period during the trial, especially when

they have already suffered for more than five month and their guilt

is yet to be established on record.

11. 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. Apprehension

expressed by learned Additional Advocate General that in the

event of bail petitioners being enlarged on bail, they may flee from

justice or may again indulge in such activities, can be best met by

putting bail petitioners to stringent conditions.

11 2024:HHC:12439

12. Hon'ble Apex Court in Criminal Appeal No. 227/2018,

Dataram Singh vs. State of Uttar Pradesh & Anr decided on

6.2.2018 has held that freedom of an individual cannot be curtailed

for indefinite period, especially when his/her guilt is yet to be

proved. It has been further held by the Hon'ble Apex Court in the

aforesaid judgment that a person is believed to be innocent until

found guilty.

13. Hon'ble Apex Court in Sanjay Chandra versus

Central Bureau of Investigation (2012)1 Supreme Court Cases

49 has held that gravity alone cannot be a decisive ground to deny

bail, rather competing factors are required to be balanced by the

court while exercising its discretion. It has been repeatedly held by

the Hon'ble Apex Court that 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.

14. In Manoranjana Sinh alias Gupta versus CBI, (2017)

5 SCC 218, Hon'ble Apex Court has held that the 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 also, normal rule is of bail

and not jail. Apart from above, Court has to keep in mind nature of 12 2024:HHC:12439

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.

15. The Apex Court in Prasanta Kumar Sarkar versus

Ashis Chatterjee and another (2010) 14 SCC 496, has laid down

various principles to be kept in mind, while deciding petition for

bail viz. prima facie case, nature and gravity of accusation,

punishment involved, apprehension of repetition of offence and

witnesses being influenced.

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

case for themselves, as such, present petitions are allowed. Bail

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

furnishing bail bonds in the sum of Rs.50,000/- each with two local

sureties in the like amount each, 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 13 2024:HHC:12439