Himachal Pradesh High Court

Ashok Sodhi vs State Of Himachal Pradesh on 30 September, 2024

Neutral Citation No. ( 2024:HHC:9330 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP (M) No. 1785 of 2024

Reserved on: 03.09.2024

Date of Decision: 30.09.2024.

           Ashok Sodhi                                                                   ...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. Vijay Panchta, Advocate. For the Respondent : Mr. Jitender Sharma, Additional

Advocate General with ASI Rajeev Kumar, Police Station Barotiwala.

Rakesh Kainthla, Judge

The petitioner has filed the present petition for

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

falsely implicated for the commission of offences punishable

under Sections 307, 341, 323, 147, 148, 149, and 506 of the Indian

Penal Code (hereinafter referred to as IPC), registered vide FIR

No.198/2023, dated 30.10.2023, in Police Station Barotiwala,

District Solan, H.P. The prosecution version is false and without

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

Neutral Citation No. ( 2024:HHC:9330 )

any basis. The petitioner has been in judicial custody since

30.10.2023. He has a large family to support. Continued

detention of the petitioner will cause hardship to his family

members. The petitioner would abide by all the terms and

conditions, which the Court may impose. Hence, the petition.

2. The petition is opposed by filing a status report

asserting that the informant made a complaint to the police that

he was called by Gaurav Sharma to Burawala near the liquor

vend. When the informant asked Gaurav Sharma, as to what was

the matter, he said that the matter related to Sneha was to be

discussed. The informant called Sneha's brothers. Deepak

accompanied them. They went to the spot mentioned by Gaurav.

Gaurav, Ashwani, Kunal and Ashok Kumar @ Sodhi (the present

petitioner) had already arrived. Sodhi had an iron Darat and

Gaurav had a stick. Two other persons were not known to the

informant but he could identify them. Gaurav and other persons

attacked the informant. Deepak ran away. Sodhi inflicted a blow

using a Darat on the head of Pankaj and the left side of his

stomach, due to which he fell. Gaurav gave beatings to the

informant and Himanshu with sticks. Pankaj was taken to PGI,

Chandigarh. The police registered the F.I.R. and conducted the

Neutral Citation No. ( 2024:HHC:9330 )

investigation. The doctor certified that Pankaj was unfit to make

the statement. The police arrested Gaurav, Ashok Kumar,

Ashwani and Kunal on 31.10.2023. Ashok made a disclosure

statement and got Darat recovered. Similarly, Gaurav made a

disclosure statement and got a stick recovered. Kunal and

Ashwani identified the spot. Badal has absconded. He was

apprehended on 05.01.2024. He was brought to the police station

where he was identified by the informant. The Medical Officer

opined that the injury sustained by Pankaj was grievous wherein

could be caused by a sharp-edged weapon. As per the opinion

of the Medical Officer, the injuries sustained by Pankaj were

dangerous to life. A supplementary challan was filed and

presented before the Court on 19.03.2024. Badal, Gaurav and

Kunal have already been released on bail. Two witnesses have

been examined and 12 witnesses are yet to be examined. The

matter is now listed for prosecution evidence on 29.10.2024.

Hence, the status report.

3. I have heard Mr Vijay Panchta, learned counsel for

the petitioner and Mr Jitender Sharma, learned Additional

Advocate General for the respondent/State.

Neutral Citation No. ( 2024:HHC:9330 )

4. Mr Vijay Panchta, learned counsel for the petitioner

submitted that the co-accused have already been released on

bail; therefore, the petitioner is entitled to bail on the principle

of parity. The petitioner has been in judicial custody since

30.10.2023 and his right to speedy trial is being violated. Two

witnesses have been examined out of 14 witnesses. Therefore, he

prayed that the present petition be allowed and the petitioner be

released on bail.r

5. Mr Jitender Sharma, learned Additional Advocate

General for the respondent/State submitted that the petitioner

had used the darat to cause hurt to the victim. He can intimidate

the witnesses in case of his release on bail. Therefore, he prayed

that the present petition be dismissed.

6. I have given considerable thought to the submissions

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

7. 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

Neutral Citation No. ( 2024:HHC:9330 )

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;

(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

Neutral Citation No. ( 2024:HHC:9330 )

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

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].)"

8. 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

Neutral Citation No. ( 2024:HHC:9330 )

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;

r (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.'

9. This Court had released Badal in the bail petition

titled Badal Kumar versus State of H.P. 2024:HHC:4270 on the

ground that identification made in the presence of police was hit

by Section 162 of Cr.P.C. There was no evidence to connect him

with the commission of crime and his involvement was not

established in the commission of the offence.

10. It was submitted that since other accused have been

released on bail, the petitioner is entitled to bail on the principle

Neutral Citation No. ( 2024:HHC:9330 )

of parity. This submission cannot be accepted. It was laid down

by the Hon'ble Supreme Court in Ramesh Bhavan Rathod v.

Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230: (2021) 2 SCC

(Cri) 722: 2021 SCC OnLine SC 335 that while determining the

parity, the role of the accused has to be considered. It was

observed at page 246

"Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not

sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In

deciding the aspect of parity, the role attached to the accused, their position in relation to the incident, and the victims is of utmost importance. The High Court has

proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law."

11. This position was reiterated in Tarun Kumar v.

Enforcement Directorate, AIR 2024 SC 169: 2023 SCC OnLine SC

1486 wherein it was observed:

"18. The submission of learned Counsel Mr. Luthra to grant bail to the appellant on the ground that the other co-accused who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration."

Neutral Citation No. ( 2024:HHC:9330 )

12. The FIR clearly shows that the petitioner was armed

with a sharp-edged darat. He inflicted the injuries on the head

and stomach of the victim. Therefore, he cannot claim parity

with a person who was not identified and whose involvement

was not established.

13. Learned Additional Sessions Judge held that in view

of Section 149, every member of unlawful assembly is guilty of

the commission of offence committed in the prosecution of the

common object. Once Badal Kumar was released by this Court,

the other accused were entitled to be released on bail. This was a

clear misreading of the judgment of this Court because Badal