Himachal Pradesh High Court
Rakesh Kanwar vs State Of Himachal Pradesh on 30 September, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
1
2024:HHC:9360
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
Cr.MP(M) Nos.2096 & 2097 of 2024
Decided on: 30.09.2024
____________________________________________________________
1.Cr.MP(M) No.2096 of 2024
Rakesh Kanwar ...........Petitioner
Versus
State of Himachal Pradesh ..........Respondent
____________________________________________________________
2.Cr.MP(M) No.2097 of 2024
Ayush Kanwar ...........Petitioner
Versus
State of Himachal Pradesh ..........Respondent
____________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioner(s) : Mr. Jagdish Thakur, Advocate.
For the Respondent(s) : Mr. Rajan Kahol, Vishal Panwar
& Mr. B.C. Verma, Additional
Advocates General with Mr. Ravi
Chauhan, Deputy Advocate
General, for the respondent-
State.
Additional SP Rattan Singh Negi,
Police Station Dhalli, District
Shimla, HP present in person.
____________________________________________________________
1
Whether the reporters of the local papers may be allowed to see the judgment?
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2
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Sandeep Sharma, Judge (oral):
.
Sequel to order dated 17.09.2024, whereby this
Court after having taken bail petitioners into custody ordered
them to be enlarged on interim bail in case FIR No. 166 of
2024 dated 15.09.2024 under Sections 126(2), 115(2), 118 (1)
and 3 (5) of Bharatiya Nyaya Sanhita and Section 3 (2) (Va) of
the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, registered at PS Dhalli, District Shimla, HP,
respondent/State has filed status report and Additional SP
Rattan Singh Negi has come present with record. Record
perused and returned.
2. Pursuant to intimation given by the Investigating
Officer to the complainant, Mr. Peeyush Verma, Advocate, has
put in appearance on behalf of complainant, who is also
present in Court.
3. Close scrutiny of status report/ record reveals that
on 14.09.2024 police after having received information from
Indira Gandhi Medical College that one person Vikram has
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been brought for treatment on account of injuries suffered by
.
him, reached the spot and recorded the statement of
complainant Vikram, who alleged that on 14.09.2024 at
about 08:45 p.m., while he was going back to his house and
had reached near Surali Devta Temple, bail-petitioners
obstructed his path and gave him beatings with sharp edged
weapon, as as result thereof, he suffered injuries on his legs.
On the basis of aforesaid statement, police lodged FIR, as
detailed hereinabove, against the bail-petitioners, but before
they could be apprehended, they approached this court in the
instant proceedings and vide order dated 17.09.2024, this
Court after taking into custody both the bail-petitioners
enlarged them on bail subject to condition that they shall join
investigation. Since bail-petitioners have already joined
investigation and nothing remains to be recovered from them,
prayer has been made on their behalf for confirmation of
interim bail granted vide order dated 17.09.2024.
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4. Mr. Rajan Kahol, learned Additional Advocate
.
General, on instructions of Investigating officer, states that
though nothing remains to be recovered from the bail-
petitioners, but keeping in view the gravity of offence alleged
to have been committed by them, they do not deserve any
leniency. Learned Additional Advocate General further states
that in the event of bail-petitioners being enlarged on bail,
they may not only flee from justice but may also cause harm
to the complainant, as such, their prayer for confirmation of
bail may be rejected.
5. Mr. Peeyush Verma, learned counsel for the
complainant, also submits that since complainant hails from
lower strata of society, he needs to be provided adequate
security because bail-petitioners, who hail from higher caste,
not only hurled abuses on the given date at the complainant,
but also gave beatings to him and in the event of their being
enlarged on bail, they may not only flee from the justice, but
may also threaten the complainant.
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6. Having heard learned counsel for the parties and
.
perused material available on record, this Court finds that on
the date of alleged incident bail-petitioners and complainant
Vikram, who had prior acquaintance, had decided to party
together and in that regard, complainant Vikram transferred
sum of Rs. 1200/- in the bank account of bail-petitioner
Ayush Kumarr for purchasing beer/liquor. As per
investigation, bail-petitioners and complainant after finishing
their duty met at Sharma Dhaba and consumed liquor. It is
only under the influence of liquor that both the parties
quarreled with each other and unfortunately complainant
suffered injury. It is none of the case of the respondent-State
that bail-petitioners harassed or humiliated the complainant
on account of his being from lower strata of society, rather
they had organized a party to celebrate the appointment of
the complainant in a private security company. Moreover, this
Court finds that even the injuries given to the complainant
with sharp edged weapon were opined to be simple in nature
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and at present complainant is out of danger, which fact can
.
be otherwise be gathered by this Court, from the appearance
of complainant, who is present in the Court.
7. Since bail-petitioners have already joined the
investigation and nothing remains to be recovered from the
bail-petitioners, there appears to be no justification for
custodial interrogation of the bail-petitioners, rather they can
be bound down to make themselves available for
investigation, as and when required by the Investigating
Agency.
8. By now it is well settled that freedom of an
individual is of utmost importance and cannot be curtailed for
indefinite period. Till the time guilt of accused is not proved,
in accordance with law, he is deemed to be innocent. In the
case at hand, the guilt, if any, of the bail petitioners is yet to
be proved, in accordance with law.
9. The Hon'ble Apex Court in Criminal Appeal
No.227/2018, Dataram Singh vs. State of Uttar Pradesh &
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Anr decided on 6.2.2018 has categorically held that freedom
.
of an individual is of utmost importance and same cannot be
curtailed merely on the basis of suspicion. Hon'ble Apex
Court has further held that till the time guilt of accused is not
proved, in accordance with law, he is deemed to be innocent.
The relevant paras No.2 to 5 of the judgment are reproduced
as under:- r
2. A fundamental postulate of criminal jurisprudence
is the presumption of innocence, meaning thereby that
a person is believed to be innocent until found guilty.
However, there are instances in our criminal law
where a reverse onus has been placed on an accused
with regard to some specific offences but that is
another matter and does not detract from the
fundamental postulate in respect of other offences. Yet
another important facet of our criminal jurisprudence
is that the grant of bail is the general rule and putting
a person in jail or in a prison or in a correction home
(whichever expression one may wish to use) is an
exception. Unfortunately, some of these basic
principles appear to have been lost sight of with the
result that more and more persons are being
incarcerated and for longer periods. This does not do
any good to our criminal jurisprudence or to our
society.
3. There is no doubt that the grant or denial of bail is
entirely the discretion of the judge considering a case
but even so, the exercise of judicial discretion has
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been circumscribed by a large number of decisions
rendered by this Court and by every High Court in the
.
country. Yet, occasionally there is a necessity to
introspect whether denying bail to an accused person
is the right thing to do on the facts and in the
circumstances of a case.
4. While so introspecting, among the factors that need
to be considered is whether the accused was arrested
during investigations when that person perhaps has
the best opportunity to tamper with the evidence or
influence witnesses. If the investigating officer does not
find it necessary to arrest an accused person during
investigations, a strong case should be made out for
placing that person in judicial custody after a charge
sheet is filed. Similarly, it is important to ascertain
whether the accused was participating in the
investigations to the satisfaction of the investigating
officer and was not absconding or not appearing when
required by the investigating officer. Surely, if an
accused is not hiding from the investigating officer or
is hiding due to some genuine and expressed fear of
being victimised, it would be a factor that a judge
would need to consider in an appropriate case. It is
also necessary for the judge to consider whether the
accused is a first-time offender or has been accused of
other offences and if so, the nature of such offences
and his or her general conduct. The poverty or the
deemed indigent status of an accused is also an
extremely important factor and even Parliament has
taken notice of it by incorporating an Explanation
to Section 436 of the Code of Criminal Procedure,
1973. An equally soft approach to incarceration has
been taken by Parliament by inserting Section
436A in the Code of Criminal Procedure, 1973.
5. To put it shortly, a humane attitude is required to
be adopted by a judge, while dealing with an
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application for remanding a suspect or an accused
person to police custody or judicial custody. There are
.
several reasons for this including maintaining the
dignity of an accused person, howsoever poor that
person might be, the requirements of Article 21 of the
Constitution and the fact that there is enormous
overcrowding in prisons, leading to social and other
problems as noticed by this Court in In Re-Inhuman
Conditions in 1382 Prisons
10. Needless to say, 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, bail is not to be
withheld as a punishment. Otherwise also, normal rule is of
bail and not jail. Court has to keep in mind nature of
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.
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11. The Hon'ble Apex Court in Sanjay Chandra
.
versus Central Bureau of Investigation (2012)1 Supreme
Court Cases 49; held as under:-
"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 can be 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.
Detention in custody pending completion of trial
could be a cause of great hardship. From time to
time, necessity demands that some unconvicted
persons should be held in custody pending trial to
secure their attendance at the trial but in such
cases, "necessity" is the operative test. In India , it
would be quite contrary to the concept of personal
liberty enshrined in the Constitution that any person
should be punished in respect of any matter, upon
which, he has not been convicted or that in any
circumstances, he should be deprived of his liberty
upon only the belief that he will tamper with the
witnesses if left at liberty, save in the most
extraordinary circumstances. 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 refuse bail as a mark of disapproval of
former conduct whether the accused has been
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convicted for it or not or to refuse bail to an
unconvicted person for the propose of giving him a
.
taste of imprisonment as a lesson."
12. The Hon'ble Apex Court in Prasanta Kumar
Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC
496, has laid down the following principles to be kept in
mind, while deciding petition for bail:
(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.
13. Consequently, in view of the above, orders dated
17.09.2024 passed by this Court, are made absolute, with
following conditions:-
a. they shall make themselves available for the
purpose of interrogation, if so required and
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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 from
disclosing such facts to the Court or the Police
Officer; and
d. they shall not leave the territory of India
without the prior permission of the Court.
14. It is clarified that if the petitioners misuse their
liberty or violate any of the conditions imposed upon them,
the Investigating Agency shall be free to move to this Court
for cancellation of the bail.
15. Any observations made hereinabove shall not be
construed to be a reflection on the merits of the case and
shall remain confined to the disposal of these applications
alone.
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16. The bail petitions stand disposed of accordingly.
.
The petitioners are permitted to produce copy of order
downloaded from the High Court website and the trial Court
shall not insist for certified copy of the order, however, it may
verify the order from the High Court website or otherwise.
September 30, 2024
(sunil)
r to (Sandeep Sharma),
Judge
