Punjab-Haryana High Court
Rohit vs State Of Haryana on 29 August, 2023
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231 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-S-1548-2023
Date of decision: 29.08.2023
Rohit ...Appellant
vs.
State of Haryana ...Respondent
Coram : Hon'ble Mr. Justice N.S.Shekhawat
Present : Mr. Shivansh Malik, Advocate
for the appellant.
Ms. Sheenu Sura, DAG, Haryana.
***
N.S.Shekhawat J.
1. Reply by way of an affidavit of Station House Officer, Police
Station Sadar, Rohtak has been filed on behalf of the respondent-State and the
same is taken on record.
2. The appellant has filed the present appeal under Section 14-A of
the Scheduled Caste and Scheduled Tribes Act (Prevention of Atrocities) Act,
1989 (hereinafter referred to as the 'Act') with the prayer to set aside the order
dated 18.06.2021 passed by the Court of Additional Sessions Judge, Rohtak
whereby, the regular bail filed by the present appellant was ordered to be
dismissed.
3. The FIR in the present case was got registered by Usha wife of
Subhash Chand by alleging that at about 12/12.15 am on 03.08.2016, the
complainant heard the sound of brick-bats hitting the main gate of their house
and thereafter, she had heard the noise of breaking of fiber glass at the gate.
Vikas, son of the complainant got up and went to the main gate and after
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opening the gate, Rohit son of Jaibir, accused was standing in front of the gate
with a wooden handle of the spade. When, he rebuked him about pelting
bricks, Rohit had hit him with the handle of the spade. When the complainant
and her other son Ramesh tried to intervene, Rohit gave a blow with danda on
her left hand and also caused an injury with the same thrust-wise on her head
and gave a blow with handle of the spade on the left side of neck and left hand
of Ramesh and he gave a blow with handle of spade on the left side of ear drum
of Vikas and Vikas fell down at the spot and Rohit fled from the spot with the
weapon of offence. After this, the complainant alongwith Vinod son of Vedpal
shifted Ramesh and Vikas for treatment to PGIMS, Rohtak and the doctor
declared Vikas to be brought dead and started treating the complainant and
Ramesh. With these allegations, the FIR in the present case was registered
against Rohit, accused/appellant.
4. Learned counsel for the appellant has vehemently argued that the
appellant has been wrongly implicated in the present case and there is no
evidence to connect him with the crime in question. Learned counsel further
contends that every attempt has been made by the prosecution to delay the trial
through their incessant filing of applications. The prosecution moved an
application under Section 216 Cr.P.C. at the fag end of the trial, just to delay the
disposal of trial proceedings. Again an application under Section 311 Cr.P.C.
was moved, seeking re-examination of certain prosecution witnesses. As a
consequence, the appellant, who is in custody since 05.09.2016, has suffered
such a prolonged incarceration during trial. Learned counsel further submits
that every tactic was adopted by the prosecution with the sole intention to
ensure that the present appellant remains behind the bars. Still further, even the
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presence of complainant and Ramesh was doubtful at the place of occurrence
and both the witnesses were introduced by the prosecution at a later stage, just
to involve the present appellant in a false criminal case.
5. Learned counsel for the appellant further contends that in the
present case, after his arrest on 05.09.2016, the petitioner continues to be in
custody for the last almost 7 long years. The challan in the present case was
presented on 26.10.2016 and thereafter, a supplementary report of investigation
under Section 173(8) Cr.P.C. was presented on 17.04.2017. Even charges were
initially framed under Sections 302 and 323 of IPC on 06.01.2017 and since
then, the prosecution has made all attempts to delay the disposal of the trial
before the learned trial Court and it is the most conspicuous case of a protracted
trial, where the prosecution has attempted to ensure that the appellant remains
incarcerated as an under-trial for such a long period.
6. At this stage, it is observed that the object of the bail is to secure
the presence of the accused at the trial only. It is also observed that the object of
bail is neither punitive nor preventive and 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. Hon'ble the Supreme Court has observed
in catena of judgments that when a person is punished by denial of bail in
respect of any matter upon which he has not been convicted it would be
contrary to the concept of personal liberty enshrined in the Constitution except
in cases where there is reason to believe that he may influence the witnesses. It
is appropriate to say that pre-conviction detention should not be resorted to,
except in cases of necessity to secure attendance at the trial or upon material
that the accused will tamper with the witnesses if left at liberty.
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7. Hon'ble the Supreme Court in Gudikanti Narasimhulu and
others v. Public Prosecutor, AIR 1978 SC 429 has held as under:-
"Bail or Jail"- at the pre-trial or post-conviction stage - largely
hinged on judicial discretion. The learned Judge held that
personal liberty was too precious a value of our constitutional
system recognised under Article 21 that the crucial power to
negate it was a great trust exercisable not casually but judicially,
with lively concern for the cost to the individual and the
community. It was further held that deprivation of personal
freedom must be founded on the most serious considerations
relevant to the welfare objectives of society specified in the
Constitution. The learned Judge quoted Lord Russel who had said
that bail was not to be withheld as a punishment and that the
requirements as to bail were merely to secure the attendance of the
prisoner at trial. According to V.R. Krishna Iyer, J., the principal
rule to guide release on bail should be to secure the presence of
the applicant to take judgment and serve sentence in the event of
the Court punishing him with imprisonment. After holding that it
makes sense to assume that a man on bail has a better chance to
prepare and present his case than one remanded in custody the
learned Judge observed that if public justice is to be promoted
mechanical detention should be demoted.
8. In Gurbaksh Singh Sibbia etc Vs The State of Punjab, AIR
1980 SC 1632, Hon'ble the Supreme Court has observed as under:-
"Judges have to decide cases as they come before them, mindful of
the need to keep passions and prejudices out of their decisions.
The Court has also observed that in which case bail should be
granted and in which case it should be refused is a matter of
discretion. The court found it interesting to note that as long back
as in 1924 it was held by the High Court of Calcutta in Nagendra
Vs. King Emperor, AIR 1924 Calcutta 476, that the object of bail
was to secure the attendance of the accused at the trial, that the
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proper test to be applied in the solution of the question whether
bail should be granted or refused was whether it was probable that
the party would appear to take his trial and that it was
indisputable that bail was not to be withheld as a punishment. The
Supreme Court also referred to the observation of the Allahabad
High Court in K.N. Joglekar Vs. Emperor, AIR 1931 Allahabad
504, that Section 498 of the Old Code which corresponds to
Section 439 of the New Code, conferred upon the Sessions Judge
or the High Court wide powers to grant bail which were not
handicapped by the restrictions in the preceding Section 497 which
corresponds to the present Section 437. The Allahabad High Court
had also observed that there was no hard and fast rule and no
inflexible principle governing the exercise of the discretion
conferred by Section 498 and that the only principle which was
established was that the discretion should be exercised judiciously.
The Supreme Court referred also the decision of the Allahabad
High Court in Emperor Vs. H.L. Hutchinson, AIR 1931
Allahabad 356, wherein it was held that the principle to be
deduced from the various sections in the Cr.P.C. was that grant of
bail is the rule and refusal is the exception, that as a presumably
innocent person, the accused person is entitled to freedom and
every opportunity to look after his own case and to establish his
innocence and that an accused person who enjoys freedom is in a
much better position to look after his case and to properly defend
himself than if he were in custody. The High Court had also held
that it would be very unwise to make an attempt to lay down any
particular rules which would bind the High Court, having regard
to the fact that the legislature itself left the discretion of the Court
unfettered. According to the High Court, the variety of cases that
may arise from time to time cannot be safely classified and it is
dangerous to make an attempt to classify the cases and to say that
in particular classes bail may be granted but not in other classes.
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The Supreme Court apparently approved the above views and
observations and held (vide paragraph 30) as follows :
"It is thus clear that the question whether to grant bail or not
depends for its answer upon a variety of circumstances, the
cumulative effect of which must enter into the judicial verdict. Any
one single circumstance cannot be treated as of universal validity
or as necessarily justifying the grant or refusal of bail."
9. The legal position emerging from the above discussion can be
summarised as follows :
"(a) Personal liberty is too precious a value of our Constitutional
System recognised under Article 21 that the crucial power to
negate it is a great trust exercisable not casually but judicially,
with lively concern for the cost to the individual and the
community. Deprivation of personal freedom must be founded on
the most serious considerations relevant to the welfare objectives
of society specified in the Constitution.
(b) As a presumably innocent person the accused person is entitled
to freedom and every opportunity to look after his own case and to
establish his innocence. A man on bail has a better chance to
prepare and present his case than one remanded in custody. An
accused person who enjoys freedom is in a much better position to
look after his case and properly defend himself than if he were in
custody. Hence grant of bail is the rule and refusal is the
exception.
(c) The object of bail is to secure the attendance of the accused at
the trial. The principal rule to guide release on bail should be to
secure the presence of the applicant to take judgment and serve
sentence in the event of the Court punishing him with
imprisonment.
(d) Bail is not to be withheld as a punishment. Even assuming that
the accused is prima facie guilty of a grave offence, bail cannot be
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refused in an indirect process of punishing the accused person
before he is convicted.
(e) Judges have to consider applications for bail keeping passions
and prejudices out of their decisions.
(f) In which case bail should be granted and in which case it
should be refused is a matter of discretion subject only to the
restrictions contained in Section 437(1) of the Criminal Procedure
Code. But the said discretion should be exercised judiciously.
(g) The powers of the Court of Session or the High Court to grant
bail under Section 439(1) of Criminal Procedure Code are very
wide and unrestricted. The restrictions mentioned in Section
437(1) do not apply to the special powers of the High Court or the
Court of Session to grant bail under Section 439(1). Unlike under
Section 437 (1), there is no ban imposed under Section 439(1)
against granting of bail by the High Court or the Court of Session
to persons accused of an offence punishable with death or
imprisonment for life. However while considering an application
for Bail under Section 439(1), the High Court or the Court of
Sessions will have to exercise its judicial discretion also bearing in
mind, among other things, the rationale behind the ban imposed
under Section 437(1) against granting bail to persons accused of
offences punishable with death or imprisonment for life.
(h) There is no hard and fast rule and no inflexible principle
governing the exercise of such discretion by the Courts. There
cannot be an inexorable formula in the matter of granting bail.
The facts and circumstances of each case will govern the exercise
of judicial discretion in granting or refusing bail. The answer to
the question whether to grant bail or not depends upon a variety of
circumstances, the cumulative effect of which must enter into the
judicial verdict. Any one single circumstance cannot be treated as
of universal validity or as necessarily justifying the grant or
refusal of bail.
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(i) While exercising the discretion to grant or refuse bail the Court
will have to take into account various considerations like the
nature and seriousness of the offence; the circumstances in which
the offence was committed; the character of the evidence; the
circumstances which are peculiar to the accused; a reasonable
apprehension of witnesses being influenced and evidence being
tampered with; the larger interest of the public or the State; the
position and status of the accused with reference to the victim and
the witness; the likelihood of the accused fleeing from justice; the
likelihood of the accused repeating the offence; the history of the
case as well as the stage of investigation etc. In view of so many
variable factors the considerations which should weigh with the
Court cannot be Exhaustively set out. However, the two paramount
considerations are (i) the likelihood of the accused fleeing from
justice, and (ii) the likelihood of the accused tampering with
prosecution evidence. These two considerations in fact relate to
ensuring a fair trial of the case in a Court of justice and hence it is
essential that due and proper weight should be bestowed on these
two factors.
(j) While exercising the power under Section 437 of the Criminal
Procedure Code in cases involving non-bailable offences except
cases relating to offences punishable with death or imprisonment
for life, judicial discretion would always be exercised by the Court
in favour of granting bail subject to sub-section 3 of Section 437
with regard to imposition of conditions, if necessary. Unless
exceptional circumstances are brought to the notice of the Court
which might defeat proper investigation and a fair trial, the Court
will not decline to grant bail to a person who is not accused of an
offence punishable with death or imprisonment for life.
(k) If investigation has not been completed and if the release of the
accused on bail is likely to hamper the investigation, bail can be
refused in order to ensure a proper and fair investigation.
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(l) If there are sufficient reasons to have a reasonable
apprehension that the accused will flee from justice or will tamper
with prosecution evidence he can be refused bail in order to ensure
a fair trial of the case.
(m) The Court may refuse bail if there are sufficient reasons to
apprehend that the accused will repeat a serious offence if he is
released on bail.
(n) For the purpose of granting or refusing bail there is no
classification of the offences except the ban under Section 437(1)
of the Criminal Procedure Code against grant of bail in the case of
offences punishable with death or life imprisonment. Hence there
is no statutory support or justification for classifying offences into
different categories such as economic offences and for refusing
bail on the ground that the offence involved belongs to a particular
category. When the Court has been granted discretion in the
matter of granting bail and when there is no statute prescribing a
special treatment in the case of a particular offence the Court
cannot classify the cases and say that in particular classes bail
may be granted but not in others. Not only in the case of economic
offences but also in the case of other offences the Court will have
to consider the larger interest of the public or the State. Hence
only the considerations which should normally weigh with the
Court in the case of other nonbailable offences should apply in the
case of economic offences also. It cannot be said that bail should
invariably be refused in cases involving serious economic offences.
(o) Law does not authorise or permit any discrimination between a
foreign National and an Indian National in the matter of granting
bail. What is permissible is that, considering the facts and
circumstances of each case, the Court can impose different
conditions which are necessary to ensure that the accused will be
available for facing trial. It cannot be said that an accused will not
be granted bail because he is a foreign national."
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10. Still further, the Hon'ble Supreme Court, while dealing with the
scope of speedy trial and emphasizing that the speedy trial is one of the most
important facets of the fundamental rights to life and liberty enshrined in Article
21, held in the matter of Kartar Singh Vs. State of Punjab and connect case,
1994(2) RCR 169 as follows:
Speedy Trial
89. The right to a speedy trial is a derivation from a provision of
Magna Carta. This principle has also been incorporated into the
Virginia Declaration of Rights of 1776 and from there into the
Sixth Amendment of the Constitution of United States of America
which reads, "In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial......
90. It may be pointed out, in this connection, that there is a
Federal Act of 1974 called 'Speedy Trial Act' establishing a set of
time-limits for carrying out the major events, e.g., information,
indictment, arraignment, in the prosecution of criminal cases. See
Black's Law Dictionary, (Sixth Edition) p. 1400.
91. The right to a speedy trial is not only an important safeguard
to prevent undue and oppressive incarceration, to minimise anxiety
and concern accompanying the accusation and to limit the
possibility of impairing the ability of an accused to defend himself
but also there is a societal interest in providing a speedy trial. This
right has been actuated in the recent past and the courts have laid
down a series of decisions opening up new vistas of fundamental
rights. In fact, lot of cases are coming before the courts for
quashing of proceedings on the ground of inordinate and undue
delay stating that the invocation of this right even need not await
formal indictment or charge.
92. The concept of speedy trial is read into Article 21 as an
essential part of the fundamental right to life and liberty
guaranteed and preserved under our Constitution. The right to
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speedy trial begins with the actual restraint imposed by arrest and
consequent incarceration and continues at all stages, namely, the
stage of investigation, inquiry, trial, appeal and revision so that
any possible prejudice that may result from impermissible and
avoidable delay from the time of the commission of the offence till
it consummates into a finality, can be averted. In this context, it
may be noted that the constitutional guarantee of speedy trial is
properly reflected in Section 309 of the Code of Criminal
Procedure.
93. This Court in Hussainara Khatoon (1) v. Home Secretary, State
of Bihar, 1980 (1) SCC 81 at P. 89 while dealing with Article 21 of
the Constitution of India has observed thus:
"No procedure which does not ensure a reasonably
quick trial can be regarded as 'reasonable, fair or just' and it
would fall foul of Article 2 1. There can, therefore, be no doubt
that speedy trial, and by speedy trial we mean reasonably
expeditious trial, is an integral and essential part of th e
fundamental right to life and liberty enshrined in Article 21. The
question which would, however, arise is as to what would be the
consequent if a person accused of an offence is denied speedy trial
and is sought to be deprived of his liberty by imprisonment as a
result of a long delayed trial in violation of his fundamental right
under Article 21. Would he be entitled to be released
unconditionally freed from the charge leveled against him on the
ground that trying him after an unduly long period of time and
convicting him after such trial would constitute violation of his
fundamental right under Article 21."
94. See also (1) Sunil Batra v. Delhi Administration, 1979 (1) SCR
392; (2) Hussainara Khatoon (1) v. Home Secretary, State of
Bihar, 1979 (3) SCR 169; (3) Hussainara Khatoon v. Home
Secretary, State of Bihar, Patna, 1979 (3) SCR 532; (4)
Hussainara Khatoon and others v. Home Secretary, State of Bihar,
Govt. of Bihar, Patna 1979 (3) SCR 1276; (5) Kadra Pahadia v.
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State of Bihar, 1983 (2) SCC 104;, (6) T. V. Vatheeswaran v. State
of T.N., 1983(2) SCR 348; and (7) Abdul Rehman Antulay v. R. S.
Nayak, 1992 (1) SCC 225.
11. From the allegations levelled by the complainant in the present
case, it is apparent that serious and specific allegations have been levelled
against the present appellant in the present case, however, the appellant cannot
be kept behind bars for an indefinite period. From the submissions made by
learned counsel for the appellant, it is apparent that the charge was ordered to
be framed against the present appellant initially on 06.01.2017 and it was the
duty of the prosecution to complete the prosecution evidence expeditiously.
Any delay in conducting the trial on the part of the prosecution violates the
right to life, which is guaranteed to every citizen under Article 21 of the
Constitution of India. Even the appellant cannot be permitted to be confined in
jail for an indefinite period, when he has not caused any delay in the
proceedings before the trial Court.
12. Thus, without commenting any further on the merits of the case,
the present appeal is allowed and the appellant is ordered to be released on bail
subject to his furnishing bail bonds/surety bonds to the satisfaction of the trial
Court/Duty Magistrate/Chief Judicial Magistrate, concerned subject to the
following conditions:-
(i) The appellant shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with
the facts of the case, so as to dissuade him to disclose such
facts to the Court or to any other authority.
(ii) The appellant shall remain present before the Court on the
dates fixed for hearing of the case.
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(iii) The appellant shall not absent himself from the Court
proceedings except on the prior permission of the Court
concerned.
(iv) The appellant shall surrender his passport, if any, (if already
not surrendered), and in case he is not holder of the same,
he shall swear an affidavit to that effect.
(v) The appellant shall also file his affidavit before the
concerned Court, mentioning his ordinary place of residence
and number of mobile phone, which shall be used by him
during the pendency of the trial. In case of change of place
of residence/mobile number, he shall share the details with
the concerned Court/learned Trial Court.
(vi) In case, the appellant involves in any other criminal activity,
during the pendency of the trial, it shall be viewed seriously
and the prosecution shall be at liberty to move a petition for
cancellation of bail granted to him.
(vii) The concerned Court may insist two heavy local surties and
may also impose any other condition, in accordance with
law, while accepting the bail bonds and surety bonds of the
appellant.
(N.S.SHEKHAWAT)
29.08.2023 JUDGE
hemlata
Whether speaking/reasoned : Yes
Whether reportable : Yes
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