Himachal Pradesh High Court

Govind Singh vs State Of Himachal Pradesh on 6 September, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

         IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                                                                 Cr. MP (M) No. 1948 a/w




                                                                             .
                                               Cr.MP (M) No.1949 and 1950 of 2024





                                                           Date of Decision: 06.09.2024
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    1. Cr. MP (M) No. 1948 of 2024
    Govind Singh                                                              ...Petitioner
                                            Versus
    State of Himachal Pradesh                                             ...Respondent





    _____________________________________________________
    2. Cr. MP (M) No. 1949 of 2024
    Vinay Kumar                                                               ...Petitioner
                                            Versus

    State of Himachal Pradesh                                             ...Respondent

    3. Cr. MP (M) No. 1950 of 2024
    Manish Kumar                                                                    ...Petitioner
                                Versus
    State of Himachal Pradesh                                                  ...Respondent



    _____________________________________________________
    Coram:




    The Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting?1 .





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    For the Petitioner(s):           Mr. Vikas Rathor, Advocate.
    For the Respondent:                  Mr. Rajan Kahol, Mr. Vishal Panwar and





                                         Mr. B.C.Verma, Additional Advocate
                                         Generals, with Mr. Ravi Chauhan, Deputy
                                         Advocate General.
    -----------------------------------------------------------------------------------------
    Sandeep Sharma, J. (Oral)

Sequel to order dated 03.09.2024, whereby bail

petitioners were ordered to be enlarged on interim bail in the event

of their arrest in case FIR No.156 of 2024, dated 22.08.2024,

under Sections 333, 332 (C), 115(2), 127(1), 351(2), 508(3) and

Whether reporters of the local papers may be allowed to see the judgment?

3(5) of the Bhartiya Nyaya Sanhita, registered at police Station,

Balh, District Mandi H.P., respondent-State has filed status report

and HC Ramchander has come present alongwith the record.

Record perused and returned.

2. Close scrutiny of the record/status report reveals that

on 22.08.2024, complainant Lekh Ram got his statement recorded

under Section 173 of Bharatiya Nagarik Suraksha Sanhita, alleging

therein that on 22.08.2024, at about 6.00 PM, a car bearing

registration No.HP-82A-3269 came in front of his shop. He alleged

that four persons alighted from the said car and one of them was

carrying axe in his hand. He alleged that all the four persons

started demanding money, but when he objected to the same, they

started quarreling with him. He alleged that his land owner namely,

Sh. Jitender Kumar tried to pacify both the parties, but accused

also gave beatings to him. However, they both were saved by

shopkeepers, namely Kundan Saini, Ashok Thakur, Ishwar Dass

and Sher Singh. He alleged that on account of beatings given by

the accused, named in the FIR, person, namely Jitender Kumar

suffered multiple injuries. In the aforesaid background, FIR, as

detailed hereinabove, came to be lodged against the petitioners.

However, before they could be arrested, they approached this

Court in the instant proceedings for grant of anticipatory bail. Vide

order dated 03.09.2024, this Court ordered to enlarge bail

petitioners on bail, subject to their joining investigation. Since bail

petitioners have already joined the investigation and nothing

remains to be recovered from them, prayer has been made on their

behalf for confirmation of bail granted vide order dated 03.09.2024.

3. While fairly acknowledging factum with regard to

joining of investigation by the bail petitioners, Mr. B.C.Verma,

learned Additional Advocate General, states that though nothing

remains to be recovered from the bail petitioners, but keeping in

view the gravity of the offence alleged to have been committed by

them, they do not deserve any leniency. He states that though no

serious injury was received by the victim in the alleged incident, but

having taken note of the fact that one of the co-accused was

carrying axe in his hand, this Court can safely presume that

accused had come on the spot with an intention to kill complainant.

He states that in the event of petitioners being enlarged on bail,

they may not only flee from justice, but may again indulge in these

activities and as such, interim bail granted to them vide order dated

03.09.2024 may not be confirmed, rather same be rejected.

4. Having heard learned counsel representing the parties

and perused material available on record, this Court finds that on

the date of alleged incident bail petitioners unauthorizedly entered

into the shop of the complainant, namely Lekh Ram and thereafter

started demanding money, but when such act of them was

objected by the complainant, they gave him beatings. Petitioners

also gave beatings to Jitender Kumar, as result of which, he

suffered injuries on his neck, as has been reflected in MLC

adduced on record. Though, having taken note of aforesaid fact, as

has been recorded hereinabove, this Court is not persuaded to

agree with learned counsel for the petitioners that petitioners have

been falsely implicated, however, having taken note of the fact that

petitioners have joined investigation and nothing remains to be

recovered from them, coupled with the fact that victim Jitender

Kumar, who suffered simple injuries, is out of danger, there

appears to be no justification to curtail the freedom of the bail

petitioners for indefinite period during trial. Though, admittedly bail

petitioners have committed heinous crime punishable under

sections 333, 332 (C), 115(2), 127(1), 351(2), 508(3) and 3(5) of

the Bhartiya Nyaya Sanhita, but guilt, if any, of them is yet to be

established on record and as such, incarceration, if any, of

petitioners in jail during trial, would amount to pr- trial conviction,

which otherwise not permissible under law.

5. Hon'ble Apex Court and this Court in a catena of

cases have repeatedly held that one is deemed to be innocent, till

the time, he/she is proved guilty in accordance with law. In the

case at hand, complicity, if any, of the bail petitioners is yet to be

established on record by the investigating agency, as such, this

Court sees no reason to send the bail petitioners behind the bars

for indefinite period during trial, especially when nothing remains to

be recovered from them. Apprehension expressed by learned

Additional Advocate General, that in the event of petitioners being

enlarged on bail, they may flee from justice or indulge in such

offences again, can be best met by putting the bail petitioners to

stringent conditions.

6. Recently, the Hon'ble Apex Court in Criminal Appeal

No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & 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:-

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 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 r 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 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

7. 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.

8. 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 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."

9. 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 r grant of bail.

10. Consequently, in view of the above, order dated

03.09.2024 passed by this Court is made absolute, subject to

petitioners furnishing personal bond in the sum of Rs. 1,00,000/-

each with one local surety in the like amount each to the

satisfaction of concerned Chief Judicial Magistrate/trial Court, with

following conditions:

a. they shall make themselves available for the purpose of interrogation, if so required and 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.