Decided On: 25.10.2024 vs State Of Himachal Pradesh
2024 Latest Caselaw 15724 HP

Himachal Pradesh High Court

Decided On: 25.10.2024 vs State Of Himachal Pradesh on 25 October, 2024

2024:HHC:10316

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MP (M) No.2306 of 2024 Decided on: 25.10.2024 __________________________________________________________ Shiv Kumar Bisht .....Petitioner Versus State of Himachal Pradesh ......Respondent

Coram Hon'ble Mr. Justice Ranjan Sharma, Judge 1 Whether approved for reporting?

For the petitioner: Mr. Ashok Sharma, Senior Advocate with Mr. Sagar Chhabra, Advocate. For the respondent: Mr. B.N. Sharma, Additional Advocate General.

Mr. Naresh Sharma, SDPO, Rampur Bushehr, District Shimla [H.P.], present in person, with records.

Mr. Chaman Negi, Advocate, for the complainant.

Ranjan Sharma, Judge [Oral]

Bail petitioner, Shiv Kumar Bisht, has come

up before this Court, in petition under Section 483 of

Bharatiya Nagarik Suraksha Sanhita [hereinafter

referred to as 'BNSS'] for grant of regular bail,

originating from FIR No.107 of 2024, dated

13.10.2024, registered at Police Station, Rampur

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

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Bushehr,   District   Shimla    [H.P.],    under   Sections

329 and 351 (2) of Bharatiya Nyaya Sanhita

[hereinafter referred to as 'BNS'] and 3(1) (f) of

Scheduled Castes and Scheduled Tribes [Prevention of

Atrocities] Act, 1989 [hereinafter referred to as

'SC&ST Act'].

FACTUAL MATRIX:

2. Case set up by Mr. Ashok Sharma, Learned

Senior Counsel, assisted by Mr. Sagar Chhabra,

Learned Counsel, is that FIR allegedly registered

against the bail petitioner on 13.10.2024, is just

an abuse of law. It has been further averred that on

30.03.2024, bail petitioner and his brother had filed an

application before Naib-Tehsildar, Sub-Tehsil Taklech,

Tehsil Rampur Bushehr, District Shimla [H.P.],

seeking correction in column of possession of land

situated in Kuhal Patiana, Sub-Tehsil Taklech, District

Shimla [H.P.], so as to avoid any dispute between them

and their father's sister [bua] and other relatives to

whom, father had given a portion of land from his large

chunk of lands.

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2(i).      It is averred that FIR was registered with

ulterior motive, just and to put pressure on the bail

petitioner and his brother to vacate the said land. It is

averred that the Complainant, has filed FIR, by giving

a different angle to the entire aspect.

2(ii). Bail petitioner has furnished the

undertakings that he shall abide by all the terms and

conditions, which may be imposed by this Court. It is

averred that the bail petitioner is a law abiding citizen

and can never think of violating the law in any maner.

In this background, the prayer for bail,

has been made by way of the instant petition. [

PROCEEDINGS BEFORE THIS COURT:

3. Upon listing of instant application on

18.10.2024, bail petitioner, Shiv Kumar Bisht,

surrendered before this Court and was enlarged on

interim bail, on 18.10.2024.

3(i). Upon issuance of notice, the State

Authorities have furnished the Status Report dated

25.10.2024, on Instructions of Sub-Divisional Police

Officer, Rampur Bushehr, District Shimla [H.P.], which

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is taken on record. Copy of the Status Report was

furnished to Learned Senior Counsel for the petitioner

and Mr. Chaman Negi, Learned Counsel, for the

complainant.

At this stage and with consent of parties, the

instant petition is taken up for disposal today.

STAND OF STATE AUTHORITIES:

4(i). Perusal of the Status Report dated

25.10.2024, states that FIR No.107 of 2024, dated

13.10.2024, was registered at instance of Complainant

-Jagat Singh Negi, son of late Shri Vinay Singh Negi,

R/o VPO Kamru, Tehsil Sangla, District Kinnaur [HP].

Status Report indicates that complainant is owner in

possession of land comprising Khasra No.2120,

situated at Chak Kuhal Patiana, Sub-Tehsil Taklech,

District Shimla [H.P.], but the complainant ordinarily

resides at Village Kamru, Tehsil Sangla, District

Kinnaur [HP] and he visits the alleged site in i.e. Kuhal

Patiana, occasionally. It is averred that complainant,

Jagat Singh, visited his land at Kuhal Patiana in

Taklech [District Shimla] on 13.08.2024 and found

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that about 5-6 Bighas of his land has been encroached

by bail petitioner, Shiv Kumar Bisht and his brother-

co-accused Vijay Singh Bisht by cultivating apple trees

and by constructing a kacha dhara on said land.

4(ii). Status Report further indicates that after

registration of FIR, the police swung into action,

During investigation, the police summoned the

complainant, Jagat Singh, on 21.10.2024 and his

land was inspected in presence of witnesses. Even

photography and videography on the spot was also

undertaken and map was prepared. Even the

statements of complainant and other witnesses were

recorded under Section 180 of BNSS. Status Report

further indicates that on 22.10.2024, the complainant,

Jagat Singh, is alleged to have produced documents to

assert his claim.

4(iii). Police Authorities have stated that on

24.10.2024, the police has forwarded a letter, to SDM,

Rampur Bushehr, District Shimla [H.P.], seeking

demarcation of land comprising in Khasra No.2120,

which is alleged to have been encroached upon by the

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bail petitioner, Shiv Kumar Bisht and his brother, co-

accused, Vijay Singh Bisht. It is stated in Status

Report that the application seeking demarcation has

been forwarded by SDM concerned to Naib-Tehsildar

Taklech, Tehsil Rampur Bushehr, District Shimla

[H.P.], for necessary action.

In the backdrop of factual narration in

Status Report, the State Authorities have admitted

that the bail petitioner and his brother joined

investigation on 19.10.2024 and they were duly

interrogated. However, it is further stated that

investigation is under way. Based on these averments,

the Learned State Counsel, on Instructions of Sub-

Divisional Police Officer, Rampur Bushehr, states that

the bail is not being opposed, as the matter involving

accusation, appears to a civil dispute inter-se the

complainant and the bail petitioner and his brother-co-

accused.

5. Heard Mr. Ashok Sharma, Learned Senior

Counsel, assisted by Mr. Sagar Chhabra, Advocate

for the bail petitioner; and Mr. B.N. Sharma, Learned

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Additional Advocate General, for respondent-State;

and Mr. Chaman Negi, Learned Counsel, for

complainant.

6. Notably, the claim of the suspect-accused

for pre-arrest or post-arrest bail-regular bail is

to be examined/tested within the parameters

prescribed of the Code of Criminal Procedure and also

the broad para-meters mandated by the Hon'ble

Supreme Court regulating grant of bail in Gurbaksh

Singh Sibbia versus State of Punjab (1980) 2 SCC

565, Ram Govind Upadhyay versus Sudarshan

Singh (2002) 3 SCC 598; Kalyan Chandra Sarkar

versus Rajesh Ranjan, (2004) 7 SCC 528; Prasanta

Kumar Sarkar versus Ashish Chatterjee, (2010) 14

SCC 496; reiterated in P. Chidambaram versus

Directorate of Enforcement, (2019) 9 SCC 24,

mandating that the bail {anticipatory or regular} is to

be granted where the case is frivolous or groundless

and no prima-facie or reasonable grounds exists which

lead to believe or point out towards accusation; and

these parameters for regular bail have been reiterated

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in Sushila Aggarwal versus State- NCT Delhi,

(2020) 5 SCC 01.

6(i). While dealing with the claim for bail, the

three judges bench of Hon'ble Supreme Court, after

reiterating broad parameters has held in Deepak

Yadav versus State of Uttar Pradesh, (2022) 8 SCC

559, in Para-25 that the nature of the crime has a

huge relevancy, while considering claim for bail.

6(ii). In Ansar Ahmad versus State

of Uttar Pradesh, 2023 SCC Online SC 974, the

Hon'ble Supreme Court had expanded the horizon

of broad parameters which are to be taken into

account, for considering the claim for regular bail or

anticipatory bail as under:

"11. Mr. R. Basant, the learned Senior Counsel appearing for one of the private respondents that the Court while granting bail is not required to give detailed reasons touching the merits or de-merits of the prosecution case as any such observation made by the Court in a bail matter can unwittingly cause prejudice to the prosecution or the accused at a later stage. The settled proposition of law, in our considered

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opinion, is that the order granting bail should reflect the judicial application of mind taking into consideration the well-known parameters including:

(i) The nature of the accusation weighing in the gravity and severity of the offence;

(ii) The severity of punishment;

(iii) The position or status of the accused, i.e. whether the accused can exercise influence on the victim and the witnesses or not;

(iv) Likelihood of accused to approach or try to approach the victims/ witnesses;

(v) Likelihood of accused absconding from proceedings;

(vi) Possibility of accused tampering with evidence;

      (vii)    Obstructing  or   attempting           to
               obstruct the   due    course           of
               justice;

(viii) Possibility of repetition of offence if left out on bail;

(ix) The prima facie satisfaction of the court in support of the charge including frivolity of the charge;

(x) The different and distinct facts of each case and nature of substantive and corroborative evidence.

12. We hasten to add that there can be several other relevant factors which, depending upon the peculiar facts and circumstances of a case, would be

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required to be kept in mind while granting or refusing bail to an accused.

It may be difficult to illustrate all such circumstances, for there cannot be any straight jacket formula for exercising the discretionary jurisdiction vested in a Court under Sections 438 and 439 respectively of the Cr.PC, as the case may be."

6(iii). In normal parlance, the principle of law is

that bail is a rule and jail is an exception. However,

this Court is conscious of the fact that the power

under Section 483 BNSS is an extraordinary power and

the same has to be exercised sparingly. It is trite law

that while considering the prayer for bail {pre-arrest

bail or regular bail], prima-facie opinion is to be

gathered or whether any other reasonable grounds

exist pointing towards the accusation or whether the

accusation is frivolous with ulterior motive of either

injuring or humiliating a person or whether a person

has falsely been roped in needs to be tested, in the

background of self-imposed restrains or the broad

parameters mandated by law as referred to above.

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6(iv).      This Court is also conscious of the fact

that as per mandate of law, in Criminal Appeal

No.3840 of 2023, titled as Saumya Churasia versus

Directorate of Enforcement, decided on 14.12.2023,

while considering the prayer for bail, though a Court

is not required to weigh the evidence collected by

the Investigating Agency meticulously, nonetheless, the

Court should keep in mind, nature of accusation,

nature of evidence collected in support thereof, severity

of punishment prescribed for alleged offences,

character of accused, circumstances which are

peculiar to accused, reasonable possibility of securing

presence of accused during trial, reasonable

apprehension of witnesses being tampered with and

large societal interests are to be kept in mind.

In this background, while testing the claim

for bail, the Court is required to form a prima-facie

opinion in the context of broad-parameters, referred

to above, but without delving into the evidence on

merits, as it may tend to prejudice the rights of

accused as well as prosecution.

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ANALYSIS OF CLAIM IN INSTANT CASE:

7. In the entirety of facts and circumstances

including statutory provisions and the mandate of

law, this Court is of the considered view, the instant

bail petition is allowed and the bail petitioner,

Shiv Kumar Bisht, is entitled to be enlarged on bail,

by making the interim bail orders dated 18.10.2024,

absolute, for the following reasons:-

8(i). Prima facie accusation is not made out

against the bail petitioner, at this stage.

8(ii). The material on record, including Status

Report do not point out any reasonable grounds to

believe, the accusation against the bail petitioner, at

this stage.

8(iii). The Status Report, as furnished to this

Court, indicates that an inter-se civil dispute alleging

encroachment on land, situated in Chak Kuhal

Patiana, Sub-Tehsil Taklech, Tehsil Rampur Bushehr,

District Shimla [H.P.], exists between the complainant-

Jagat Singh and the bail petitioner [Shiv Kumar Bisht

and his brother-co-accused Vijay Singh Bisht, for

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which, the State Authorities-Police started

investigation, whereby, an application was made to

SDM-cum-Collector, Rampur Bushehr for ordering

demarcation, and this request was further sent to

Naib-Tehsildar, Taklech for further action, which is

pending before the said authority. Status Report

narrates that prior to this, police along with

complainant visited the spot, which was videographed

in presence of witnesses.

Even the accusation against the bail

petitioner under Sections 329 and 351 (2) of BNS and

3 (1) (f) of SC&ST Act, as to whether the bail petitioner

and his brother has wrongly occupied or cultivated the

land of the complainant-Jagat Singh, is a matter to be

tested, examined and proved on the basis of

demarcation and other parameters in accordance with

the Land Revenue Act or by asserting any other right/

interests inter-se in any manner permissible in law.

Unless and until, the aforesaid facts are ascertained

and proved in appropriate proceedings, this Court is

of the considered view, that the prima facie accusation

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is not borne out, which, at this stage, appears to be of

a civil dispute inter-se the parties.

8(iv). Claim for bail has force, for the reason,

that no prima facie accusation or reasonable grounds

exist against the bail petitioner. The object of bail is

neither punitive nor preventative. Once the material on

record, as contained in the Status Report, does not

suggest towards accusation, therefore, in these

circumstances, the bail becomes a right. Denial of bail

will certainly deprive and curtail the liberty of bail

petitioner, at this stage. Moreover, bail cannot be

sought to be denied so as to make an accused to

taste imprisonment as a lesson, so as to give

precedence to punitively by ignoring his liberty under

Article 21 of the Constitution of India, when in facts of

instant case, neither any prima facie accusation nor

reasonable grounds exist against the bail petitioner, at

this stage.

PRESUMPTION OF INNOCENCE-CLAIM FOR BAIL:

8(v). Implicating the petitioner on the basis

of mere suspicion or conjectures when, the accusation

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is yet to be examined, considered and proved during

the trial cannot be permitted, for the reason that till

the accusation is proved, the petitioner-accused is to

be treated as innocent in the eyes of law. Denial of bail

can neither be punitive nor preventative as per

mandate of law, of the Hon'ble Supreme Court of India

in Guddan alias Roop Narayan Versus State of

Rajasthan, 2023 SCC OnLine SC 1242, in following

terms:-

"11. In the case of Sanjay Chandra V. Central Bureau of Investigation, (2012) 1 SCC 40, while hearing a bail Application in a case of an alleged economic offence, this court held that the object of bail is neither punitive nor preventative. It was observed 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 is 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.

23. Apart from the question of prevention being the object of 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

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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 unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.

25. The provisions of CrPC confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trial or in appeal against convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, is a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognised, then it may lead to chaotic situation and would jeopardise the personal liberty of an individual.

27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."

12. Further, in the case of Sandeep Jain v. National Capital Territory of Delhi, (2000) 2 SCC 66, this Court, while hearing a bail application held that conditions for grant of bail cannot become so onerous that their existence itself is tantamount to refusal of bail. This Court held as under:

" We are unable to appreciate even the first order passed by the Metropolitan Magistrate imposing the onerous condition that an accused at the FIR stage should pay a huge sum of Rs. 2 lakhs to be set at liberty. If he had paid it is a different matter. But the fact that he was not able to pay that amount and in default thereof he is to languish in jail for more than 10 months now, is sufficient indication that he

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was unable to make up the amount. Can he be detained in custody endlessly for his inability to pay the amount in the range of Rs.2 lakhs? If the cheques issued by his surety were dishonoured, the Court could perhaps have taken it as a ground to suggest to the payee of the cheques to resort to the legal remedies provided by law.

Similarly if the Court was dissatisfied with the conduct of the surety as for his failure to raise funds for honouring the cheques issued by him, the Court could have directed the appellant to substitute him with another surety. But to keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is not only hard but improper. It must be remembered that the Court has not even come to the conclusion that the allegations made in the FIR are true. That can be decided only when the trial concludes, if the case is charge-sheeted by the police."

REFORMATIVE INTENT AND CLAIM FOR BAIL:

8(vi). While dealing with claim for bail, the

humanist and reformative intent and the personal

liberty, being sacrosanct, under Article 21 of the

Constitution of India, needs to be balanced and given

due weightage as per the mandate of Hon'ble Supreme

Court, in Criminal Appeal No.2787 of 2024, titled

as Javed Gulam Nabi Shaikh Versus State of

Maharashtra and Another, in following terms:-

"18 Criminals are not born out but made. The human potential in everyone is

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good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents, juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations."

ADHERANCE TO PRINCIPLE:- BAIL IS RULE:

8(vii). Depriving the petitioner the concession

of bail shall negate the principle that 'bail is a rule and

jail is an exception', as outlined by the Hon'ble

Supreme Court, in Manish Sisodia vs Directorate of

Enforcement, SLP (Criminal) No.8781 of 2024,

decided on 09.08.2024, as under :-

"49. We find that, on account of a long period of incarceration running for around 17 months and the trial even not having been commenced, the appellant has been deprived of his right to speedy trial.

50. As observed by this Court, the right to speedy trial and the right to liberty are sacrosanct rights. On denial of these rights, the trial court as well as the High Court ought to have given due weightage to this factor.

52. The Court also reproduced the observations made in Gudikanti Narasimhulu (supra), which read thus: "10. In the aforesaid context, we may

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remind the trial courts and the High Courts of what came to be observed by this Court in Gudikanti Narasimhulu v. Public Prosecutor, High Court reported in (1978) 1 SCC

240. We quote:

" What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said [R v. Rose, (1898) 18 Cox]:

" I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial"

53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well- settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non- grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that "bail is rule and jail is exception".

55. As observed by this Court in the case of Gudikanti Narasimhulu (supra), the objective to keep a person in judicial custody pending trial or disposal of an appeal is to secure the attendance of the prisoner at trial.

56. As observed by this Court in the case of Gudikanti Narasimhulu (supra), the objective to keep a person in judicial

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custody pending trial or disposal of an appeal is to secure the attendance of the prisoner at trial.

57. Insofar as the apprehension given by the learned ASG regarding the possibility of tampering the evidence is concerned, it is to be noted that the case largely depends on documentary evidence which is already seized by the prosecution. As such, there is no possibility of tampering with the evidence. Insofar as the concern with regard to influencing the witnesses is concerned, the said concern can be addressed by imposing stringent conditions upon the appellant."

NO APPREHENSION OF FLEEING AWAY:

8(viii). The Status Report filed by the State

Authorities does not indicate any likelihood of the bail

petitioner, fleeing away from the administration of

justice i.e. the Investigation or the Trial. In absence of

any such apprehension by the State Authorities the

claim for bail, needs to be accepted. Ordered

accordingly.

NO APPREHENSION OF TAMPERING WITH EVIDENCE OR WITNESSES:

8(ix). The Status Report filed by the State

Authorities does not indicate any likelihood of the

bail petitioner tampering with evidence or witnesses. In

absence of any such material in the Status Report, the

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claim for bail needs to be accepted. Ordered

accordingly.

NO PAST CRIMINAL ANTECEDENTS & AGE FACTOR:

8(x). Bail petitioner has furnished an undertaking

that he is a law-abiding citizen and shall not thwart

the justice in any manner. Even the State Authorities

have not pointed out any adversarial circumstances

indicating any past-criminal antecedents of the bail

petitioner. Moreover, the bail petitioner is about 66

years of age. There is a relevant consideration for

acceding to the prayer for bail, in peculiar facts

hereinabove.

NO APPREHENSION OF TAMPERING EVIDENCE OR WITNESSES:

8(xi). State Authorities have not expressed any

apprehension of tampering of witnesses or causing

inducement, threat or promise to the witnesses or

the persons acquainted with the facts of the case. In

absence of any such possibility, this Court is of

the considered view, that prayer for enlargement of

the petitioner on bail carries weight and the same is

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accepted.

NO ADVERSARIAL CIRCUMSTANCES POINTED BY STATE AUTHORITIES DURING INVESTIGATION:

8(xii). State Authorities have not pointed out any

adversarial circumstances, against the petitioner, that

he has evaded or not joined the investigation or

custodial interrogation is required. However, the

Status Report asserts that the bail petitioner has

participated and cooperated in investigation as and

when called. In these circumstances, the claim for bail

becomes a right of the present bail petitioner, in facts

of this case.

CONCLUSION AND DIRECTIONS:

9. Taking into account the facts and

circumstances and the mandate of law and

the discussion made hereinabove, the instant

petition is allowed and the claim of the bail petitioner

[Shiv Kumar Bisht] is accepted; and the orders dated

18.10.2024 passed by this Court granting Interim bail

are made absolute, subject to the compliance of

conditions already imposed by this Court, in orders

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dated 18.10.2024 in instant case, including the

additional conditions imposed here-in-below:-

(i) Petitioner shall neither involve himself nor shall abet the commission of any offence hereinafter. Any involvement or abetting shall entail the withdrawal of concession in terms of this order;

(ii) Petitioner shall disclose his functional E-

Mail ID/WhatsApp number to the Learned Trial Court;

(iii) Petitioner shall not hinder the smooth flow of the investigation and shall join the investigation, as and when called, by the Investigating Agency;

(iv) Petitioner shall not jump over the bail and also shall not leave the country without prior permission of the Court;

(v) Petitioner shall not tamper with the witnesses or the evidence in any manner;

(vi) Petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or the witnesses;

(vii) Petitioner shall abide by all other conditions, as may be imposed by the Learned Trial Court, if any, in view of this order;

(viii) It is clarified that violation of any of the conditions imposed hereinabove, shall entail cancellation of bail automatically; and

(ix) State Authorities are free to move this Court for alteration/modification of this Court, in case of violation of any conditions as in (i) to (viii) supra, in the facts and circumstances so necessitates at any time herein-after.

10. It is clarified that any observations made

hereinabove shall not be construed as findings either

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for the purposes of investigation or trial, which shall

proceed, in accordance with law, without being

prejudiced by the observations.

In aforesaid terms, the petition is allowed

and all pending miscellaneous application(s) shall

stand disposed of.

(Ranjan Sharma) Judge October 25, 2024 [Bhardwaj]