Punjab-Haryana High Court
Arjun Kumar vs State Of Punjab on 5 August, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2024:PHHC:100098
CRM-M-47551-2023
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-47551-2023
DATE OF DECISION: 05.08.2024
ARJUN KUMAR ...PETITIONER
Versus
STATE OF PUNJAB ... RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Saurav Bhatia, Advocate with
Mr. Sahil Mathur, Advocate for the petitioner.
Mr. Rajiv Verma, DAG, Punjab.
***
SANDEEP MOUDGIL, J (ORAL)
1. Relief Sought
The jurisdiction of this Court under Section 439 Cr.P.C.,
has been invoked for the grant of regular bail to the petitioner in case
FIR No. 151, dated 11.04.2023, under Sections 323/341/506/148/149
and 201 of the IPC (Section 308 IPC added later on) registered at Police
Station Sadar, Division NO.7, District Police Commissionerate,
Ludhiana.
2. Prosecution story set up in the present case as per the
version in the FIR read as under :-
'Statement of Mohit Masih son of Tilak Masih resident of
House of 4095/4 street No. 0, Mohalla Beant Pura, Chandigarh
Road, Police Station Moti Nagar, District Ludhiana aged about
19 years, Mobile No. 62837-64096, stated that I am residing
along with family of abovesaid address. I am studied till 8th class
and I am working at Vardhman Factory Chandigarh Road
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Ludhiana. on 09.04.2023, I and my friend Vinay Kumar, we were
on our motorcycle, went to eat Momo's at near Green Land LIG
Road, Near K Deep hospital Ludhiana. when at about 10:00 PM,
I and my friend Vinay Kumar started riding the motorcycle after
eating Momo's. then Diljot Singh son of Randhir Singh resident
of House No- 157/LIG Fiat Folice Station Division No. 7 District
Ludhiana was having 'Iron datt' in his hand, Ashu Kumar was
having Sword in his Hand, Sonu alias Chah-Pati was having
Sword in his hand and Sonu Chugian and Shubham alias Dabba
and Arjun Kumar were having 'Iron Datt' in their hands. 10-12
unknown persons were along with them rounded up me and my
friend Vinay Kumar and started abusing us and raised Lalkara's
and Diljot Singh hit on my head with 'Iron Datt' from reverse
side, which hit above on my left eye and I fell on the ground and
fainted, after that I did not know and these peoples beat me up
and also beaten my friend Vinay Kumar, my friend Vinay Kumar
raised alarm and passerby started gathering on spot, on seeing
gathering of passerby, these peoples ran away from spot along
with weapons while threatening to kill. My friend Vinay Kumar
made me conscious and tied cloth on my head and took me
home. My father Tilak Masih got admitted me and my friend
Vinay Kumar in Civil Hospital Ludhiana, where doctor gave
stitches on my head and gave stitches to my friend's head and
sent us home after cut the M.L.R and next day I got my head
MRI scan. Motive behind this, that my friend Bunty had fight
with Shubham aliad Dabba, due to which these peoples beaten
me and my friend Vinay Kumar. Due to injury on my head, I
could not come to police station to report. Now I was going with
my father to report to police station, you met us. Please take
legal action against Diljot Singh, Ashu Kumar, sonu alias
ChahPati, Shubham alias Dabba, Arjun Kumar, Sonu Chugian
and 10-12 unknown persons, to whom I can indentify when they
before me. come I have recorded my statement to you, heard,
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found correct. Sd/ Mohit Masih, attested Sd/ Tilak Masih
certified by Sd/- Kuldeep Singh ASI 214/Ldh Police Station
Division No. 7 Ludhiana Dated 11.04.2023.'
3. On the last date the following order was passed :-
'Contends that petitioner is in custody since 11.07.2023.
After investigation, report under Section 173 of Cr.P.C. was
presented on 11.09.2023, but charges are yet to be considered.
Also contends that there is no specific injury
attributed to the petitioner.
Learned State counsel seeks time to verify the above
factual position.
Posted for 05.08.2024.
In the meanwhile, petitioner be released on interim bail in
the present case, till the next date of hearing, on furnishing
adequate bail and surety bonds subject to the satisfaction of
learned trial Court/CJM/Duty Magistrate concerned.'
4. Contentions
On behalf of the petitioner
Learned counsel for the petitioner has argued that the
petitioner has been in custody since 12.04.2023 and no injury has been
attributed to the petitioner. He points that on the last date the interim
bail was granted by this Court furnishing adequate bail and surety
bonds subject to the satisfaction of learned trial Court/CJM/Duty
Magistrate concerned and State Counsel sought time to verify the
factual position.
On behalf of the State
On the other hand, learned State Counsel appearing on
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advance notice, accepts notice on behalf of respondent-State and has
filed the custody certificate of the petitioner, which is taken on record.
According to which, the petitioner is behind bars for last 9 months and
24 days and has verified the facts mentioned in the last order dated
07.05.2024 which are found to be correct but he opposes the concession
for grant of regular bail on the ground that the petitioner is involved in
one more FIR i.e. FIR No. 447 dated 23.10.2017 registered under
Sections 379-B/411/148/149/323 IPC at P.S. Jodhewal.
5. Analysis
From the above case it can be culled out the petitioner has
already suffered sufficient period in custody i.e. 9 months and 24 days,
the petitioner was granted interim regular bail on the last date i.e.
07.05.2024, and as per the principle of the criminal jurisprudence, no
one should be considered guilty, till the guilt is proved beyond
reasonable doubt, whereas in the instant case, challan stands presented
on 18.12.2023 and charges are yet to be framed and out of 14
prosecution witnesses, none has been examined so far which is
sufficient for this Court to infer that the conclusion of trial is likely to
take considerable time and detaining the petitioner behind the bars for
an indefinite period.
Reliance can be made upon the judgment of the Apex
Court rendered in "Dataram versus State of Uttar Pradesh and
another", 2018(2) R.C.R. (Criminal) 131, wherein it has been held that
the grant of bail is a general rule and putting persons in jail or in prison
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or in correction home is an exception. Relevant paras of the said
judgment is 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
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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 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, 2017(4) RCR (Criminal)
416: 2017(5) Recent Apex Judgments (R.A.J.) 408 : (2017) 10
SCC 658
6. The historical background of the provision for bail has been
elaborately and lucidly explained in a recent decision delivered
in Nikesh Tara chand Shah v. Union of India, 2017 (13) SCALE
609 going back to the days of the Magna Carta. In that decision,
reference was made to Gurbaksh Singh Sibbia v. State of Punjab,
(1980) 2 SCC 565 in which it is observed that it was held way
back in Nagendra v. King-Emperor, AIR 1924 Calcutta 476 that
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bail is not to be withheld as a punishment. Reference was also
made to Emperor v. Hutchinson, AIR 1931 Allahabad 356
wherein it was observed that grant of bail is the rule and refusal
is the exception. The provision for bail is therefore age-old and
the liberal interpretation to the provision for bail is almost a
century old, going back to colonial days.
7. However, we should not be understood to mean that bail
should be granted in every case. The grant or refusal of bail is
entirely within the discretion of the judge hearing the matter and
though that discretion is unfettered, it must be exercised
judiciously and in a humane manner and compassionately. Also,
conditions for the grant of bail ought not to be so strict as to be
incapable of compliance, thereby making the grant of bail
illusory."
Therefore, to elucidate further, this Court is conscious of
the basic fundamental law that right to speedy trial is a part of
reasonable, fair and just procedure guaranteed under Article 21 of the
Constitution of India. This constitutional right cannot be denied to the
accused as is the mandate of the Apex court in "Hussainara Khatoon
and ors (IV) v. Home Secretary, State of Bihar, Patna", (1980) 1 SCC
98. Besides this, reference can be drawn upon that pre-conviction period
of the under-trials should be as short as possible keeping in view the
nature of accusation and the severity of punishment in case of
conviction and the nature of supporting evidence, reasonable
apprehension of tampering with the witness or apprehension of threat to
the complainant.
As far as the pendency of other cases and involvement of
the petitioner in other FIR is concerned, the petitioner is on bail in that
FIR and reliance can be placed upon the order of this Court rendered
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in CRM-M-25914-2022 titled as "Baljinder Singh alias Rock vs. State
of Punjab" decided on 02.03.2023, wherein, while referring Article 21
of the Constitution of India, this Court has held that no doubt, at the
time of granting bail, the criminal antecedents of the petitioner are to
be looked into but at the same time it is equally true that the
appreciation of evidence during the course of trial has to be looked into
with reference to the evidence in that case alone and not with respect to
the evidence in the other pending cases. In such eventuality, strict
adherence to the rule of denial of bail on account of pendency of other
cases/convictions in all probability would land the petitioner in a
situation of denial of the concession of bail.
6. Decision:
In view of the aforesaid discussions made hereinabove, the
petitioner is directed to be released on regular bail under Section 439
Cr.P.C. on his already furnished bail and surety bonds vide order dated
07.05.2024 to the satisfaction of the trial Court/Duty Magistrate,
concerned
However, it is made clear that anything stated hereinabove
shall not be construed as an expression of opinion on the merits of the
case.
The petition in the aforesaid terms stands allowed.
(SANDEEP MOUDGIL)
JUDGE
05.08.2024
anuradha
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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