Punjab-Haryana High Court
Mahesh Kumar @ Mintu vs State Of Punjab on 3 July, 2024
Neutral Citation No:=2024:PHHC:082071
CRM-M-26303-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
215
CRM-M-26303-2024
Date of Decision :July 03, 2024
MAHESH KUMAR @ MINTU .....Petitioner
VERSUS
STATE OF PUNJAB .....Respondent
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present : Mr. Lovish Arora, Advocate
for the petitioner.
Mr. Sahil R. Bakshi, AAG, Punjab.
KULDEEP TIWARI, J.(Oral)
1. Through the instant petition, the petitioner craves for
indulgence of this Court for his being enlarged on regular bail, in case
FIR No. 217, dated 06.11.2022, under Sections 308, 323, 325, 506, 148
and 149 of the IPC, registered at Police Station Dakha, District Ludhiana.
ALLEGATIONS AGAINST THE PETITIONER
2. A perusal of the FIR reflects that the petitioner alongwith
other co-accused alleged to have caused injuries to the complainant-
Harpreet Singh and his brother-Gurdeep Singh, and one of the injuries is
attributed to the present petitioner i.e. on the back of the neck of the
complainant, with a base ball bat.
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SUBMISSIONS OF LEARNED COUNSEL FOR THE PETITIONER
3. In asking for the relief (supra), learned counsel for the
petitioner submits that in fact the injury which is attributed to the present
petitioner is simple in nature.
4. He further submits that in fact the MLR does not reflect any
corresponding injury.
5. He also draws attention of this Court to the order dated
30.05.2023, passed by a co-ordinate bench of this Court in CRM-M-
26559, vide which co-accused-Jaswinder Singh alias Happy, has already
been extended the relief of regular bail, mainly on the ground that a
compromise has been effected between the parties concerned.
6. Finally, he submits that the petitioner is having clean
antecedents, and he has already suffered incarceration of more than 5
months as on today, and the trial is yet to begun.
SUBMISSIONS OF THE LEARNED STATE COUNSEL
7. Per contra, the learned State counsel vociferously opposes
the asked for relief of grant of regular bail to the petitioner, and submits
that in fact the petitioner was the member of unlawful assembly, who
alongwith other co-accused caused multiple injuries to the complainant,
and his brother, and there are multiple fractures suffered by them.
8. Further he does not deny the factum of grant of regular bail
to the co-accused-Jaswinder Singh vide order (supra), to whom grievous
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injury is attributed.
9. From the custody certificate qua the petitioner, it reflects that
the petitioner has suffered incarceration of about 05 months and 03 day as
on today, and, he is not involved in any other criminal case.
ANALYSIS
10. 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.
11. "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.
12. The right to a speedy trial is one of the rights of a detained
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
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gravity of offence(s) involved.
13. 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 Emperor v.
H.L. Hutchinson, AIR 1931 Allahabad 356 at p. 358 it was
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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.
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 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
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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 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."
14. 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 and society affected.
11. We must weight the contrary factors to answer the
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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
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
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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."
FINAL ORDER
15. Considering the fact that the main co-accused/Jaswinder
Singh, to whom the main injury is attributed, has already been extended
the relief of regular bail vide order (supra), and the petitioner has
suffered incarceration of 05 months and 03 days, as on today, and he has
clean antecedents, and the trial is yet to begin, 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.
16. 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.
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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)
July 03, 2024 JUDGE
dharamvir
Whether speaking/reasoned. : Yes/No
Whether Reportable. : Yes/No
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