Punjab-Haryana High Court
Yousf @ Kalia @ Yusuf vs State Of Punjab on 2 July, 2024
Neutral Citation No:=2024:PHHC:081477
CRM-M-15422-2024 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
112 CRM-M-15422-2024
Date of Decision : July 02, 2024
YOUSF @ KALIA @ YUSUF -PETITIONER
V/S
STATE OF PUNJAB -RESPONDENT
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present: Mr. Gurbir Singh Sidhu, Advocate
for the petitioner.
Mr. Pardeep Bajaj, D.A.G., Punjab.
***
KULDEEP TIWARI, J. (ORAL)
1. Through the instant petition, the petitioner craves for indulgence
of this Court for him being enlarged on regular bail, in case FIR No.51 dated
10.04.2023, under Sections 307, 323, 34 of the IPC, registered at P.S. City-1
Malerkotla, District Malerkotla.
ALLEGATIONS IN THE FIR
2. Succinctly stated, the allegations levelled in the present FIR are
that, the petitioner along with his co-accused, in furtherance of their common
intention, caused injuries on the person of one Usman son of Mohd. Aslam
(hereinafter referred to as the 'complainant'). The relevant extract of com-
plainant's statement, which constituted bedrock for registration of the present
FIR, and, which is narrated in paragraph No.3 of the order dated 01.03.2024,
whereby petitioner's bail application has been dismissed by the learned Addi-
tional Sessions Judge, Sangrur, is reproduced hereinafter:-
"...On 08.04.2023 at about 10.30 p.m. complainant Usman along with his
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friend Usman, Jugnu, Azam were talking with each other near the tea shop of
Sonu after playing cricket. In the meantime, Sharik along with Usman Rana
@ Lalla armed with iron dah came on motorcycle, which was being driven
by Sharik and Usman Rana @ Lalla was pillion rider. While Shamshad @
Kaka and Yusaf @ Kalia also came on another motorcycle. Shamshad @
Kaka was driving that motorcycle. While Yusaf @ Kalia was pillion rider
and was armed with Kirpan. They stopped their motorcycle near com-
plainant and his companions. Sharik and Shamshad @ Kaka exhorted that
they would kill Usman on that day. On that Yusaf @ Kalia gave blow with
kirpan towards complainant with an intention to kill him. Complainant Us-
man stepped towards back side and rescued himself. Then Usman Rana @
Lalla gave blow with his iron dah towards complainant with an intention to
kill him and that blow struck on the left jaw of complainant. Complainant
Usman fell down. His companions raised alarm "Marta-Marta". Thereafter,
assailants fled away on their motorcycles along with their weapons..."
SUBMISSIONS OF LEARNED COUNSEL FOR THE PETITIONER
3. The learned counsel for the petitioner, in his asking for the here-
inabove extracted relief, has made the following submissions:-
(i) No injury has been attributed to the petitioner in the FIR;
(ii) The complainant has suffered only one injury, i.e. "Lacerated
wound measuring 10 x 5 cm present on left jaw, advice surgical
opinion", which is attributed to petitioner's co-accused Usman
Rana, who has already been granted the relief of regular bail by
the learned trial Court;
(iii) Total five persons, including petitioner, were arrayed as ac-
cused in the present FIR, out of which, (i) one accused was de-
clared innocent; (ii) one accused was discharged by the learned
trial Court; (iii) two accused have already been granted the re-
lief of regular bail by the learned trial Court; and (iv) petitioner
is the only accused, who has been languishing behind the bars;
(iv) The petitioner has suffered incarceration of approx. 7½
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months;
(v) Trial is not likely to conclude anytime soon, as despite the
charges becoming framed on 19.04.2024 and supplementary
charges becoming framed on 03.06.2024, none out of the total 19
prosecution witnesses has yet been examined, and therefore, keep-
ing the petitioner behinds the bars would serve no gainful purpose;
SUBMISSIONS OF THE LEARNED STATE COUNSEL
4. Per contra, the learned State counsel has opposed the grant of
regular bail to the petitioner, on the ground that, in fact, it is the petitioner's
act which attracts the penal provisions of Section 307 of the IPC, inasmuch as,
it was he, who had with an intent to commit murder, gave a kirpan blow to the
complainant, however, the latter warded off the attack by stepping back. He
has also placed on record the custody certificate of the petitioner, as issued by
the Superintendent, Sub Jail, Malerkotla, and submitted that the petitioner is
involved in three more cases.
5. Moreover, on instructions imparted to him by A.S.I. Anayat
Khan, the learned State counsel has verified that, none out of the total 19 pros-
ecution witnesses has yet been examined.
ANALYSIS
6. Before embarking upon the process of evaluating the argu-
ments 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.
7. "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.
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Balchand alias Baliay", 1977 AIR 2447, 1978 SCR (1) 535. This principle
finds its roots in one of the most distinguished fundamental rights, as en-
shrined 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.
8. The right to a speedy trial is one of the rights of a detained per-
son. However, while deciding application for regular bail, the Courts shall
also take into consideration the fundamental precept of criminal jurispru-
dence, which is "the presumption of innocence", besides the gravity of of-
fence(s) involved.
9. 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 Cal-
cutta in Nagendra v. King Emperor, AIR 1924 Calcutta 476 (479,
480) that the object of bail is to secure the attendance of the ac-
cused 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 de-
serve a special mention. In K.N. Joglekar v. Emperor, AIR 1931 Al-
lahabad 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 pre-
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ceding 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 con-
ferred by Section 498 and that the only principle which was estab-
lished was that the discretion should be exercised judiciously. In
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 unfet-
tered. According to the High Court, the variety of cases that may
arise from time to time cannot be safely classified and it is danger-
ous to make an attempt to classify the cases and to say that in partic-
ular 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 de-
fend 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.
XX XX XX
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 ju-
dicial 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."
It is thus clear that the question whether to grant bail or not
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depends for its answer upon a variety of circumstances, the cumula-
tive effect of which must enter into the judicial verdict. Any one sin-
gle circumstance cannot be treated as of universal validity or as
necessarily justifying the grant or refusal of bail."
10. 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 consid-
ering 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 an-
tecedents 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 en-
abled 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 con-
stitutional proposition I have deduced. Reasonableness postulates
intelligent care and predicates that deprivation of freedom by re-
fusal of bail is not for punitive purpose but for the bi-focal interests
of justice - to the individual involved and society affected.
11. We must weight the contrary factors to answer the test the rea-
sonableness, 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 per-
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spective 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 con-
sideration. Equally important is the deplorable condition, verging on
the inhuman, of our sub-jails, that the unrewarding cruelty and ex-
pensive custody of avoidable incarceration makes refusal of bail un-
reasonable 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 com-
mitting offences while on judicially sanctioned 'free enterprise',
should be provided against. No seeker of justice shall play confi-
dence 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 judi-
cial discretion correlated to the values of our 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
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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."
11. This Court has heard the submissions made by the learned
counsels for the parties and perused the record. This Court is of the view
that the present petition deserves to be allowed. The reason for forming this
inference generates from the factum that:- (i) the petitioner has not caused
any injury to the complainant, rather the only injury suffered by the
complainant has been caused by petitioner's co-accused Usman Rana, who
has already been enlarged on bail by the learned trial Court; (ii) as per
custody certificate, the petitioner has suffered incarceration of approx. 07½
months; (iv) trial is at its initial stage and is not likely to conclude anytime
soon, as out of total 19 prosecution witnesses, none has yet been examined,
therefore, subjecting the petitioner to prolonged incarceration would serve
no fruitful purpose; (v) although the petitioner is involved in three more
cases, however, considering the role assigned to the petitioner in the present
FIR, besides considering the nature of those three cases, this Court does not
deem it appropriate to keep the petitioner behind bars for indefinite period.
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.
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12. However, anything observed here-in-above shall have no effect
on the merits of the case and is meant for deciding the present petition only.
(KULDEEP TIWARI)
July 02, 2024 JUDGE
devinder
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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