Himachal Pradesh High Court

Reserved On: 23.09.2024 vs State Of Himachal Pradesh on 4 October, 2024

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 1672 of 2024 Reserved on: 23.09.2024 Date of Decision: 04.10.2024

Vijay Charan ...Petitioner Versus

State of Himachal Pradesh ...Respondent

Coram Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No.

For the Petitioner : Mr. Nand Lal Thakur, Advocate. For the Respondent : Mr. Ajit Sharma, Deputy Advocate General for respondent/State.

Rakesh Kainthla, Judge

The petitioner has filed the present petition for

seeking regular bail. It has been asserted that the petitioner was

arrested vide FIR No. 34 of 2007, registered for the commission

of an offence punishable under Section 20 of the Narcotic Drugs

and Psychotropic Substances Act (in short 'NDPS Act') at Police

Station Aut, District Mandi, H.P.

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

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2. As per the prosecution, the petitioner was found in

possession of 350 grams of Charas. The charge sheet was filed in

the Court of learned Special Judge-II, Mandi, however the police

challan was sent to the Chief Judicial Magistrate, Mandi, H.P. in

view of the report of the FSL and judgment of this Court in case

titled Dharam Pal vs State HLJ 2007 (HP) 827. The petitioner

appeared before the Court on 01.04.2010 and the matter was

listed on 12.05.2010. The petitioner could not appear before the

Court on that day because he was out of station to earn his

livelihood. He could not contact his counsel and was not aware

of the next date of hearing. Hence, non-bailable warrants of

arrest were issued against him and he was declared a proclaimed

offender on 04.03.2013. The petitioner was arrested and

produced before learned Chief Judicial Magistrate 27.03.2024

from where he was sent in judicial custody. The investigation is

complete and no recovery is to be effected from the petitioner.

The petitioner would abide by all the terms and conditions,

which the Court may impose. The petitioner has been behind the

bars for the last four months and his trial is not likely to be

concluded soon. Hence, the present petition.

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3. The present petition is opposed by filing a status

report asserting that the police were on patrolling duty on

06.03.2007. The police found the petitioner coming from

Balichowki on foot with a polythene bag. He tried to run away

after seeing the police. The police apprehended him and

recovered 300 grams of Charas from the polythene bag. The

police arrested the petitioner and seized the Charas. The Charas

was sent to FSL, Junga and as per the report of analysis, the

sample had 24.25% w/w resin in it. The petitioner did not

appear before the Court, hence, he was declared a proclaimed

offender on 20.06.2013. He was arrested and produced before the

learned Trial Court on 27.03.2024. The petitioner absconded for

11 years, which affected the progress of the trial. He would again

abscond in case he is released on bail. Therefore, it was prayed

that the present petition be dismissed.

4. I have heard Mr. Nand Lal Thakur, learned counsel

for the petitioner and Mr. Ajit Sharma, learned counsel for the

respondent/State.

5. Mr Nand Lal Thakur, learned counsel for the

petitioner submitted that the petitioner has been in judicial

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custody for more than four months. The trial is not progressing

and the petitioner is entitled to bail. He would abide by all the

terms and conditions which the Court may impose. Therefore,

he prayed that the present petition be allowed and the petitioner

be released on bail.

6. Mr. Ajit Sharma, learned Deputy Advocate General for

the respondent/State submitted that the petitioner had

absconded. He was declared a proclaimed offender and he was

apprehended after 11 years. He would again abscond in case of he

is released on bail, therefore, he prayed that the present

petition be dismissed.

7. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

8. The Hon'ble Supreme Court discussed the

parameters for granting the bail in Bhagwan Singh v. Dilip

Kumar, 2023 SCC OnLine SC 1059 as under: -

12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the

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application for a grant of bail. However, it can be noted that;

(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail 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 accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.

(d) Frivolity of prosecution should always be considered and it is only the element of genuineness that shall have to be 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 have an order of bail.

13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts have been explained in the following words:

"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 of course. Though at the stage of granting bail a detailed examination of evidence and elaborate

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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 with 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. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] and Puran v.

Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124].)"

9. A similar view was taken in State of Haryana vs

Dharamraj 2023 SCC Online 1085, wherein it was observed:

"7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the relevant principles were restated thus:

'9. ... It is trite that this Court does not, normally, interfere with an order passed by the High Court

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granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(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. The status report shows that the petitioner was

found in possession of the polythene bag containing 300 grams

of Charas. This allegation, prima facie, shows the involvement

of the petitioner with the commission of an offence punishable

under Section 20 of the NDPS Act.

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11. It is an admitted case that the petitioner had not

appeared before the Court and he was declared a proclaimed

offender. The petitioner explained that he is a resident of Punjab

and could not contact his counsel. This is no explanation at all.

He was aware of the fact that a case was pending against him.

He was trusted by the Court by granting him bail that he would

appear before the Court on each and every date of hearing but he

betrayed the trust placed by the Court upon him and the trial

could not proceed further for 11 years because of his absence.

12. It was laid down by the Hon'ble Supreme Court in

Talab Haji Hussain Versus Madhukar Purshottam Mondkar AIR

1958 SC 376 that the primary object of the Criminal Procedure is

to ensure a fair trial and where the progress of a trial is

obstructed by the accused, the Court is justified in taking him

into custody. It was observed: -

"[6] Now it is obvious that the primary object of criminal procedure is to ensure a fair trial of accused persons. Every criminal trial begins with the presumption of innocence in favour of the accused, and provisions of the Code are so framed that a criminal trial should begin with and be throughout governed by this essential presumption, but a fair trial has naturally two objects in view; it must be fair to the accused and must also be fair to the prosecution. The test of fairness in a criminal trial must be judged from this dual point of view. It is

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therefore of the utmost importance that, in a criminal trial, witnesses should be able to give evidence without any inducement or threat either from the prosecution or the defence. A criminal trial must never be so conducted by the prosecution as would lead to the 'conviction of an innocent person; similarly, the progress of a criminal trial must not be obstructed by the accused so as to lead to the acquittal of a really guilty offender. The acquittal of the innocent and the conviction of the guilty are the objects of a criminal trial and so there can be no possible doubt that, if any conduct on the part of an accused person is likely to obstruct a fair trial, there is an occasion for the exercise of the inherent power of the High Courts to secure the ends of justice. There can be no more important requirement of the ends of justice than the uninterrupted progress of a fair trial; and it is for the continuance of such a fair trial that the inherent powers of the High Courts are sought to be invoked by the prosecution in cases where it is alleged that accused persons, either by suborning or intimidating witnesses, are obstructing the smooth progress of a fair trial, Similarly, if an accused person who is released on bail jumps bail and attempts to run to a foreign country to escape the trial, that again would be a case where the exercise of the inherent power would be justified in order to compel the accused to submit to a fair trial and not to escape its consequences by taking advantage of the fact that he has been released on bail and by absconding to another country. In other words, if the conduct of the accused person subsequent to his release on bail puts in jeopardy the progress of a fair trial itself and if there is no other remedy which can be effectively used against the accused person, in such a case the inherent power of the High Court can be legitimately invoked. In regard to non- bailable offences, there is no need to invoke such power because S. 497 (5) specifically deals with such cases. The question which we have to decide in this case is whether the exercise of inherent power under S. 561-A against persons accused of bailable offences, who have been

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released on bail, is contrary to or inconsistent with the provisions of S. 496 of the Code of Criminal Procedure."

13. There is force in the submission of Mr. Ajit Sharma,

learned Deputy Advocate General that the petitioner is not

likely to attend the hearing in case he is released on bail.

14. It was submitted that there is a delay in the progress

of the trial. This is not acceptable. The copies of the order

sheets have not been filed to establish the delay. The accused

has been in custody and the trial takes some time for its

completion. The period of four months is insufficient to

complete the trial and the plea that there is a delay in the trial is

not acceptable.

15. In view of the past conduct of the petitioner, he is not

entitled to a concession of bail. Thus, the present petition fails