Kashmir Singh @ Tona vs State Of Punjab
2024 Latest Caselaw 9005 P&H

Punjab-Haryana High Court

Kashmir Singh @ Tona vs State Of Punjab on 29 April, 2024

                                Neutral Citation No:=2024:PHHC:058133



                                                     2024:PHHC:058133
CRM-M-11151-2024                                                        1

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH


                          CRM-M-11151-2024
                          Date of decision : April 29, 2024


Kashmir Singh @ Tona                          ....Petitioner
                          VERSUS

State of Punjab                                      ....Respondent



CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI


Present :   Mr. Akhilesh Vyas, Advocate, for the petitioner
            Mr. Raghav Garg, DAG, Punjab


KULDEEP TIWARI,J. (ORAL)

1. This is first regular bail application, in case FIR No. 23 dated

05.03.2023, under Section 379-B of the IPC, registered at Police Station

Kathu Nangal, District Amritsar Rural.

ALLEGATIONS AGAINST THE PETITIONER

2. The case of the prosecution is embodied in a complaint moved

by complainant-Simranjit Singh, wherein he alleged that on 4.3.2023, at

about 8.40 p.m., while he was going on his duty to Raja Sansi on his

motorcycle bearing No.PB-06-AS-0987 HF Deluxe, four persons came in a

Car, and hit his motorcycle from behind whereupon, he fell down.

Moreover, they snatched his motorcycle, and bag/purse containing his two

uniforms, two mobile phones, Rs.500/- and some documents. Thereafter, on

the basis of secret information, accused Kashmir Singh and Daler Singh

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were arrested on dated 06.03.2023, and, accused Bachittar Singh was

arrested on dated 09.03.2023. The motorcycle of complainant bearing

No.PB-06-AS- 0987, HF Deluxe, his Identity card, turban of his uniform,

his two smart cards, and one toy pistol were recovered from accused.

SUBMISSIONS OF THE LEARNED COUNSEL FOR THE PETITIONER

3. Learned counsel for the petitioner has submitted that although

the recovery has been effected from the petitioner, however, veracity

thereof is yet to be established before the learned trial court, by the

prosecution. He has further placed reliance on the orders passed by the

Coordinate Benches of this Court, whereby, relief of regular bail has been

granted to co-accused namely Bachiter Singh, vide order dated 17.11.2023,

passed in CRM-M-32044-2023 (Annexure P-3), and, to co-accused Daler

Singh @ Dilsher Singh @ Vijay vide orders dated 6.2.2024, passed in

CRM-M-34347-2023 (Anneuxre P/4). He has further submitted that the

petitioner has suffered incarceration of approximately one year and half

month, as on today. He has further submitted that since there is less

chance of the trial to be concluded in near future, as the charges were

framed only on 11.2.2024 and none of the prosecution witness has been

examined, out of 14 witnesses, cited in the final report, therefore,

subjecting the petitioner to prolonged incarceration would not serve any

fruitful purpose.

SUBMISSIONS OF THE LEARNED STATE COUNSEL

4. Per contra, the learned State counsel has vociferously opposed

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the asked for relief, and, he has placed on record a custody certificate qua

the petitioner, which is taken on record, and a perusal of the same reveals

that the petitioner has suffered incarceration of approximately one year and

a half month, as on today, and he is involved in about seven more criminal

cases. Therefore, the petitioner being, habitual offender, does not deserve

him being released on regular bail. He has, on instructions from the

official concerned confirmed that, in fact, out of 14 prosecution witnesses,

no witness has been examined so far.

ANALYSIS

5. Before embarking upon the process of evaluating the

arguments addressed by the learned counsels for the parties and penning

down any opinion upon the instant petition, it is deemed imperative to

capture an overview of some significant legal propositions.

6. "Bail is the Rule and Jail is an Exception". This basic

principle of criminal jurisprudence was laid down by the Hon'ble Supreme

Court, way back in 1978, in its landmark judgment titled "State of

Rajasthan V. Balchand alias Baliay", 1977 AIR 2447, 1978 SCR (1) 535.

This principle finds its roots in one of the most distinguished fundamental

rights, as enshrined in Article 21 of the Constitution of India. Though the

underlying objective behind detention of a person is to ensure easy

availability of an accused for trial, without any inconvenience, however, in

case the presence of an accused can be secured otherwise, then detention is

not compulsory.

7. The right to a speedy trial is one of the rights of a detained

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person. However, while deciding application for regular bail, the Courts

shall also take into consideration the fundamental precept of criminal

jurisprudence, which is "the presumption of innocence", besides the gravity

of offence(s) involved.

8. In "Gurbaksh Singh Sibbia v. State of Punjab", (1980) 2

SCC 565 at 586-588, the purpose of granting bail is set out by the Hon'ble

Supreme Court with great felicity as follows:-

"27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra v. King Emperor, AIR 1924 Calcutta 476 (479, 480) that the object of bail is to secure the attendance of the accused at the trial, that 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 and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the 'Meerut Conspiracy cases observations are to be found regarding the right to bail which deserve a special mention. In K.N. Joglekar v. Emperor, AIR 1931 Allahabad 504 (SB) it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it 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. It was observed by the Court 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. In

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Emperor v. H.L. Hutchinson, AIR 1931 Allahabad 356 at p. 358 it was said that it was very unwise to make an attempt to lay down any particular rules which 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 a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. 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. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence.

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29. In Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118 it was observed by Goswami, J., who spoke for the Court, that "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 cancelling bail".

30. In American Jurisprudence (2d, Vol. 8, page 806, para

39) it is stated :

"Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end."

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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. Also, in "Gudikanti Narasimhulu and others Versus Public

Prosecutor, High Court of Andhra Pradesh", 1978 AIR (Supreme Court)

429, the Hon'ble Supreme Court, speaking through Krishna Iyer, J., has

enunciated the principles of bail thus :

"9. Thus the legal principle and practice validate the court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record- particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habitual, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the member of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.

10. The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to he goals of community good and State necessity spelt out in Article 19. Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of justice - to the individual involved

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and society affected.

11. We must weight the contrary factors to answer the test the reasonableness, subject to the need for securing the presence of the bail applicant. It makes sense to assume that a man on bail has a better chance to prepare of present his case than one remanded in custody. And if public justice is to be promoted. mechanical detention should be demoted. In the United States, which has a constitutional perspective close to ours, the function of bail is limited, 'community roots' of the applicant are stressed and, after the Vera Foundation's Manhattan Bail Project, monetary suretyship is losing ground. The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible.

12. A few other weighty factors deserve reference. All deprivation of liberty is validated by social defence and individual correction along an anti-criminal direction. Public justice is central to the whole scheme of bail law. Fleeing justice must be forbidden but punitive harshness should be minimised. Restorative devices to redeem the man, even through community service, meditative drill, study classes or other resources should be innovated, and playing foul with public peace by tampering with evidence, intimidating witnesses or committing offences while on judicially sanctioned 'free enterprise', should be provided against. No seeker of justice shall play confidence tricks on the court or community. Thus, conditions may be hung around bail orders, not to cripple but to protect. Such is the holistic jurisdiction and humanistic orientation invoked by the judicial discretion correlated to the values of our

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Constitution.

13. Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before this Court pends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the court's verdit once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding if that be so - of innocence has been recorded by one court. It may not be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, if enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man and socio- geographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and policy prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the court into a complacent refusal."

10. This Court has examined the allegations against the present

petitioner. There are similar allegations against the co-accused (supra) of

the petitioner, who have already been granted the relief of regular bail, vide

orders (supra). The petitioner has suffered the incarceration of approx. one

year and a half month, as on today. Though the petitioner is said to be

involved in seven other cases, and out of these cases, only one case is of

similar nature, and because of his involvement in other criminal cases, the

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petitioner, cannot be made to put behind the bars for indefinite

incarceration.

11. Considering the allegations against the petitioner, and the

incarceration suffered by him and the fact that the co-accused, sailing on

the same boat as of petitioner, have already been granted the relief of

regular bail, this Court deems it fit, and appropriate to grant the

concession of regular bail to the petitioner. Therefore, without commenting

upon the merits and circumstances of the present case, the present petition

is allowed. The petitioner is ordered to be released on bail on furnishing of

bail bond and surety bond to the satisfaction of concerned Chief Judicial

Magistrate/trial Court/Duty Magistrate.

12. However, it is clarified that if in future, the petitioner is found

indulging in commission of similar offences, as are involved herein, the

respondent-State shall be at liberty to make an appropriate application

seeking cancellation of regular bail, as granted by this Court. Moreover,

anything observed here-in-above shall have no effect on the merits of the

trial and is meant for deciding the present petition only.

                                                   ( KULDEEP TIWARI )
April 29, 2024                                           JUDGE
   'tiwana'


               Whether speaking/reasoned ? Yes/No
              Whether Reportable ?               Yes/No




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