Himachal Pradesh High Court
Raj Chander Negi vs State Of Himachal Pradesh on 16 October, 2024
Neutral Citation No. ( 2024:HHC:9772 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) No. 1919 of 2024
Reserved on: 25.09.2024
Date of Decision: 16.10.2024.
Raj Chander Negi ...Petitioner
versus
State of Himachal Pradesh ...Respondent
Corams
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Petitioner : Mr. George, Advocate.
For the Respondent : Mr. Ajit Sharma, Deputy Advocate
General.
For the complainant : Mr R.K. Bawa Senior Advocate
assisted with Mr Abhinav Thakur.
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 2024, dated 12.04.2024, for the
commission of offences punishable under Sections 307 and 201
read with Section 34 of IPC and Section 25 of the Arms Act
registered at Police Station Reckong-Peo, District Kinnaur, H.P.
The prosecution case is false. The co-accused Smt. Chander
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
Neutral Citation No. ( 2024:HHC:9772 )
Bhagti has been released on bail. The police did not investigate
the matter fairly and only one side story was taken into
consideration. The complainant party consisted of 10-12
persons who were erecting a permanent gate to close the free
access of the petitioner. They became aggressive and caught
hold of the petitioner's wife. The petitioner became
apprehensive about the safety of his wife and acted in self-
defence. The petitioner is a senior citizen of 68 years of age. He
is suffering from various ailments. He is receiving treatment
from the Post Graduate Institute of Chandigarh. The
complainant party is closely related to the petitioner and his
wife. A false case was made due to the family property dispute.
Civil litigation is pending between the parties. The petitioner has
been in custody since 12.04.2024. Some false cases were
registered against the petitioner due to personal enmity. The
investigation is complete. The chargesheet has been filed before
the Court. The petitioner is a permanent resident of Village
Purbani, Tehsil Reckong-peo. He belongs to a respectable
family. He would abide by all the terms and conditions, which
the Court may impose. Hence, the petition.
Neutral Citation No. ( 2024:HHC:9772 )
2. The petition is opposed by filing a status report
asserting therin that the police received a telephonic
information on 12.04.2024 at around 3:46 PM that there was
gunfire in village Purbani. The police party reached the spot and
found three women lying in an injured condition. They were
taken to hospital. Sheetal Negi informant made a statement
before the police that her brother Nitesh Negi was to be married
w.e.f. 17.04.2024 till 20.04.2024. The informant and her younger
sister visited their home on 11.04.2024. A gate was to be erected
on the stairs on 12.04.2024. When the gate was being erected,
the petitioner and his wife came out of their home and
obstructed the construction of the gate. The petitioner and his
wife started arguing with the informant and her family
members. Petitioner's wife pushed the iron gate, which fell on
the maternal aunt of the informant. The petitioner went inside
and came out with the gun. He shot Krishan Leela in her
stomach. When the informant tried to take care of injured
Krishan Leela, the petitioner fired at Sweety Rani, the
informant's sister. She sustained injuries on her neck. The
petitioner fired at the informant's mother but she escaped. The
petitioner shot Bharti who suffered injury on her left leg. The
Neutral Citation No. ( 2024:HHC:9772 )
petitioner searched for the informant and her mother but they
concealed themselves. However, the petitioner saw the
informant's mother and fired at her. Kalpana dragged the
informant's mother and she was saved. The petitioner searched
for the remaining persons with the gun. The petitioner's wife
was pointing towards at the people. The police registered the
FIR and conducted the investigation. The gun was seized and
sent to SFSL. As per the report, the cartridges recovered by the
police could have been fired from the gun seized from the
petitioner. The lead residue was detected on the gun. Bharti Devi
remained admitted to the hospital w.e.f. 13.04.2024 till
27.04.2024. Sweety Rani remained admitted to the hospital w.e.f.
13.04.2024 till 18.05.2024 and Krishan Leela remained admitted
w.e.f. 13.04.2024 till 28.07.2024 at IGMC, Shimla. The petitioner
had shot at his sisters, his sister-in-law and his nieces. Krishan
Leela had sustained serious injuries on the perineal region and is
unable to walk. The petitioner can indulge in the commission of
a similar offence in case of his release on bail. Five FIRs were
registered against the petitioner. He was acquitted in three FIRs
and FIR No. 1/2007 dated 16.10.2007 and FIR No. 92 of 2023
dated 18.09.2023 are pending disposal. The petitioner had
Neutral Citation No. ( 2024:HHC:9772 )
remained at various places and he would conceal himself in case
of release of bail.
3. I have heard Mr. George, learned counsel for the
petitioner, Mr. Ajit Sharma, learned Deputy Advocate General
for the respondent/State, and Mr R.K. Bawa, learned Senior
Advocate, assisted Mr. Abhinav Thakur learned counsel for the
complainant/victim.
4. Mr. George, learned counsel for the petitioner
submitted that the petitioner is innocent and he was falsely
implicated. Many persons from the complainant's community
had gathered on the spot, who gave beatings to the petitioner's
wife. The petitioner had a reasonable apprehension regarding
the safety of his wife and he fired in self-defence. The petitioner
is an aged person, who is suffering from various ailments.
Keeping the petitioner in custody would compromise his health.
The police have filed the chargesheet and no recovery is to be
effected from him. Therefore, he prayed that the present
petition be allowed and the petitioner be released on bail. He
relied upon the judgments in Union of India vs. K.A. Najeeb AIR
2021 Supreme Court 712, Gurwinder Singh versus State of Punjab
Neutral Citation No. ( 2024:HHC:9772 )
and another 2024 Live Law (SC) 100 and Gurbaksh Singh Sibbia etc
vs. State of Punjab 1980 (2) SCC 565 in support of his submission.
5. Mr. Ajit Sharma, learned Deputy Advocate General for
the respondent/State submitted that the petitioner/accused has
committed a heinous crime. He had fired at his sister, his sister-
in-law and nieces repeatedly. There is no evidence that the life
of the petitioner's wife was in danger and simple construction of
the iron gate will not give rise to private defence to shoot at the
members of the informant party. Therefore, he prayed that the
present petition be dismissed.
6. Mr R.K. Bawa, learned Senior Advocate assisted by Mr
Abhinav Thakur, Advocate, for the complainant/victim
submitted that allegations against the petitioner are heinous. He
had fired at his sisters, sister-in-law and nieces over the land
dispute. There is no evidence that the life of the petitioner's wife
was in danger and the petitioner was not justified in shooting at
the informant and her family members. The petitioner's sister
Krishan Leela has been seriously injured and her life is in
danger. The petitioner can again cause serious harm to her in
case of release on bail. Therefore, he prayed that the present
Neutral Citation No. ( 2024:HHC:9772 )
petition be dismissed. He relied upon the judgments of the
Hon'ble Supreme Court in Puran vs. Rambilas and another (2001)
6 Supreme Court Cases 338, Ram Govind Upadhyay vs Sudarshan
Singh and others (2002) 3 Supreme Court Cases 598, State of U.P.
versus Amarmani Tripathi (2005) 8 Supreme Court Cases 21,
Kalyan Chandra Sarkar versus Rajesh Ranjan Alias Pappu Yadav
and Another (2004) 7 Supreme Court Cases 528, Gurcharan Singh
and others vs. State (1978) 1 Supreme Court Cases 118 and Prahlad
Singh Bhati versus NCT, Delhi and Another (2001) 4 Supreme Court
Cases 280 in support of his submission.
7. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
8. The parameters for granting bail were considered by
the Hon'ble Supreme Court in Bhagwan Singh v. Dilip Kumar @
Deepu @ Depak, 2023 SCC OnLine SC 1059, wherein it was
observed 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 application for a
grant of bail. However, it can be noted that;
Neutral Citation No. ( 2024:HHC:9772 )
(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 granting bail.
(c) While it is not accepted to have the entire
evidence establishing the guilt of the accused
beyond reasonable doubt 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 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
Neutral Citation No. ( 2024:HHC:9772 )
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 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;
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(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 present petition has to be decided as per the
parameters laid down by the Hon'ble Supreme Court.
11. The MLC of the petitioner's wife Chander Bhagti
shows that she had suffered an abrasion on her face and prima
facie the plea of the petitioner that her life was in danger is not
acceptable. Section 100 of the Indian Penal Code provides the
right of private defence of the body to the extent of causing
death if there is an assault which may reasonably cause the
apprehension of death or grievous hurt or an assault to commit
rape, gratify unnatural lust, kidnapping or abducting,
wrongfully confining a person or throwing or administering
acid. The right of private defence of the property to the extent of
causing death is provided under Section 103 and can be exercised
when robbery, house breaking by night, mischief theft, and
Neutral Citation No. ( 2024:HHC:9772 )
house trespass are being caused and there is a reasonable
apprehension that death or grievous hurt would be a
consequence. In the present case, these conditions have not
been satisfied. Hence, the plea taken by the petitioner that he
had acted in his right of private defence cannot be accepted.
12. In any case, it was rightly submitted on behalf of the
respondents that Section 105 of the Indian Evidence Act puts the
burden of proving that the case of the accused falls within the
exception upon him. Therefore, the exercise of the right of
private defence would be adjudicated during the trial and not at
this stage.
13. The petitioner had fired five gunshots. The first one
was directed at his sister and she suffered injuries on her
stomach and adjacent areas. This can by no stretch of
imagination be attributed to the right of the private defence.
Thereafter, he fired at other persons after reloading the gun.
Therefore, the act of the petitioner was prima facie outside the
purview of his right of private defence.
14. The petitioner also searched for the informant and
her mother, who escaped detection by concealing themselves. In
Neutral Citation No. ( 2024:HHC:9772 )
the meantime, the police arrived on the spot. This shows the
intent of the petitioner to shoot at the informant and her other
family members. This act of the petitioner would give rise to a
reasonable apprehension that the petitioner would indulge in
the commission of a similar offence in case of his release on bail.
15. The learned counsel for the petitioner submitted that
the petitioner is suffering from various ailments and is getting
treatment from PGI, Chandigarh. He filed medical records to
establish this fact. The medical record does not show any serious
ailment, which cannot be treated inside the jail. Therefore, the
petitioner cannot claim the bail on the ground of his medical
condition.
16. The petitioner had shot at his sister and the other
relatives of the informant. Prima facie these allegations show the
commission of an offence punishable under Section 307 of IPC.
The offence is heinous and releasing the petitioner on bail would
compromise the safety of the informant party. Therefore, the
petitioner cannot be released on bail at this stage.
Neutral Citation No. ( 2024:HHC:9772 )
17. The judgments cited at the bar reiterated the well-
known principles of grant of bail which had already been noticed
by this Court and it is not necessary to discuss each judgment.
18. In view of the above, the present petition fails and
the same is dismissed.
19. The observations made herein before shall remain
confined to the disposal of the petition and will have no bearing,
whatsoever, on the merits of the case.
Date: 2024.10.16 (Rakesh Kainthla)
20:03:30 IST Judge
16th October, 2024
(Nikita)
