Himachal Pradesh High Court

Khage Neparne @ Khadak Singh vs State Of Himachal Pradesh on 26 September, 2024

Neutral Citation No. ( 2024:HHC:9129 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP (M) No. 1782 of 2024

Reserved on: 30.8.2024

Date of Decision: 26.9.2024.






    Khage Neparne @ Khadak Singh                                                 ...Petitioner

                                          Versus

    State of Himachal Pradesh


    Coram
                            r                to                                  ...Respondent

Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No.

For the Petitioner : Mr. Ashish Jamalta, Advocate.

For the Respondent : Mr. Jitender Sharma, Additional Advocate General, with ASI

Pradeep Sen, IO, Police Station Bhuntar, District Kullu, H.P.

Rakesh Kainthla, Judge

The petitioner has filed the present petition for

seeking regular bail. It has been asserted that the police arrested

the petitioner vide FIR No. 136 of 2021, dated 20.8.2021 for the

commission of offences punishable under Sections 452, 302 and

212 of IPC. The petitioner is innocent and he was falsely

implicated. The investigation is complete and the charge sheet

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

Neutral Citation No. ( 2024:HHC:9129 )

has been filed before the Court. The statements of some

witnesses have been recorded. The petitioner would abide by all

the terms and conditions, which the Court may impose. Hence

the petition.

2. The police filed a status report asserting that the

informant told the police that he and Ram Chand were residing

in the house of Harish Kumar, a resident of Sharabai, where they

were constructing a house. The petitioner resided in the vicinity

with his family members in the old house. The informant and

Ram Chand went to sleep on 19.8.2021. The petitioner entered

the room armed with an iron rod and attacked Ram Chand at

12.00 AM. Ram Chand shouted and the informant woke-up. The

accused inflicted a blow with an iron rod on the head of Ram

Chand. He also kicked Ram Chand. Ram Chand became

unconscious. The accused asked the informant to bring the

water but the informant ran away. He told the police about the

incident. The police registered the FIR and conducted the

investigation. Ram Chand was found dead. His postmortem

examination was conducted and the report was issued showing

that the cause of death was head injury due to Subdural

Hematoma. The petitioner absconded and was apprehended

Neutral Citation No. ( 2024:HHC:9129 )

after some time. He made a disclosure statement leading to the

recovery of the iron rod. The samples were sent to FSL and

human blood of Group 'AB' was found on the T-shirt of the

petitioner, blood lifted from the kitchen shed, pants and T-shirt

of deceased Ram Chand. Human blood of group 'O' was found in

the blood sample of the petitioner. The police filed a charge

sheet against the petitioner. Seven witnesses have been

examined and 22 witnesses are yet to be examined. Hence the

status report.

3. I have heard Mr. Ashish Jamalta, learned counsel for

the petitioner and Mr. Jitender Sharma, learned Additional

Advocate General, for the respondent/State.

4. Mr. Ashish Jamalta, learned counsel for the petitioner

submitted that the petitioner is innocent and he was falsely

implicated. There is a delay in the progress of the trial. The

prosecution has only examined seven witnesses within three

years. The petitioner is entitled to bail due to a violation of his

right to a speedy trial. He relied upon the judgments of the

Hon'ble Supreme Court in Jalaluddin Khan Vs. UOI (2024) INSC

Neutral Citation No. ( 2024:HHC:9129 )

604 and Manish Sisodia Vs. Directorate of Enforcement 2024 INSC

598 in support of his submission.

5. Mr. Jitender K. Sharma, learned Additional Advocate

General for the respondent/State submitted that the prosecution

had taken steps to secure the presence of the witnesses. It had

complied with the summons issued by the Court from time to

time. There is no delay on the part of the prosecution. 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 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

Neutral Citation No. ( 2024:HHC:9129 )

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 grant of bail.

evidence establishing the guilt of the accused beyond reasonable doubt but 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 has

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 also necessary for the court granting bail to

Neutral Citation No. ( 2024:HHC:9129 )

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.

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 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;

Neutral Citation No. ( 2024:HHC:9129 )

(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.'

A perusal of the status report shows that the incident

was witnessed by the informant. He had seen the accused

attacking the deceased with an iron rod. Hence, there is

sufficient material on record, at this stage, to show the

involvement of the petitioner.

10. It was submitted that there was a delay in the trial.

The prosecution has only examined seven witnesses within

three years and there is no likelihood of the completion of the

trial at the earliest. Therefore, the petitioner is entitled to bail.

This submission cannot be accepted. The copies of the order

sheets show that the witness Raj Malhotra was not present

despite service and he was ordered to be summoned by way of

bailable warrants. Requests were received from Raj Malhotra

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and Sher Singh on 21.2.2023 which were allowed by the Court.

The bailable warrants were ordered to be issued on 30.7.2024

and the witnesses were ordered to be summoned through special

messenger. These orders do not show any lapse on the part of

the prosecution in producing the witnesses. The prosecution had

effected the service upon the witnesses and the Court had

allowed the requests made by the witnesses. It is trite to say that

the act of the Court will not prejudice any person. hence, the

prosecution cannot be faulted for the act of the Court. Since

there is no delay in the present case; hence, the judgments cited

at the bar dealing with the right of the accused in case of

violation of his right to speedy trial do not apply to the present

case.

11. The offence alleged against the petitioner is heinous

and can be punished with capital imprisonment. Keeping in view

the nature of the offence and the severity of the punishment, the

petitioner cannot be held entitled to the concession of bail at

this stage; however, the accused would be at liberty to approach

the Court in case the prosecution is unable to complete the

evidence within a reasonable time.

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12. In view of the above, the present petition fails and

the same is dismissed.

13. The observation made herein before shall remain

confined to the disposal of the petition and will have no bearing,

whatsoever, on the merits of the case.


                                                  (Rakesh Kainthla)





                                                       Judge
     26th September, 2024
          (Chander)      r