Punjab-Haryana High Court
Sonu Yadav vs State Of Punjab on 13 March, 2024
Neutral Citation No:=2024:PHHC:037141
CRM-M-60073-2023 & -1-
CRM-M-60366-2023
2024:PHHC:037141
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
205 CRM-M-60073-2023
Date of Decision : March 13, 2023
SONU YADAV .....Petitioner
VERSUS
STATE OF PUNJAB .....Respondent
CRM-M-60366-2023
RAJESH KUMAR .....Petitioner
VERSUS
STATE OF PUNJAB .....Respondent
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present : Mr.Nitin Meel, Advocate,
for the petitioner in CRM-M-60073-2023.
Mr.I.S.Chawla, Advocate,
for the petitioner CRM-M-60366-2023
Mr.Pardeep Bajaj, DAG, Punjab.
KULDEEP TIWARI. J.(Oral)
1. Since both the petitions arise out of the same FIR therefore,
both are taken together for its adjudication.
2. Through the instant petition filed under Section 439 Cr.P.C.
the petitioners pray for grant of regular bail in case FIR No.136, dated
17.11.2022, under Sections 302, 323 and 34 of the IPC, registered at
Police Station Khulan Sarwar, District Fazilka.
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ALLEGATIONS AGAINST THE PETITIONERS
3. The prosecution agency was set into motion on a statement
made by one Surjit Singh, the relevant extract of the FIR reads as under:-
"Statement of Surjit Singh son of Pritam Singh, resident of Village
Dalmir Khera, aged about 32 years, Mobile No. 94655 05298. Stated
that I am residing at above noted address and is serving as Driver on
a Bus belonging to AVS Transport Company. One Bhim Sain son of
Om Parkash son of Purkha Ram, resident of Village Waryam Khera,
is serving as Conductor in said company. We both collectively use to
leave for job on Motorcycle, drop the motorcycle in morning hourse
at village Shergarh and then come back to home on my Motorcycle.
On 16.11.2022, in evening hours, we both were coming from village
Shergarh towards village Waryam Khera on my Motorcycle bearing
Registration No.PB 46 E 2432 make Spiender. Bhim Sain was riding
said Motorcycle, while I was sitting on pillion seat. At about 8.00
P.M., when we were about 1.00 K.M. before village Waryam Khera,
at that time, four youngsters, having muffled their face, found
present at Link Road. One of them was carrying iron rod, while two
other persons were carrying base ball and fourth youngster was
carrying a hockey stick, who gave signal to stop with the help of
torch. We found in torch light of our motorcycle that the said
youngsters were having a motorcycle. As Bhim Sain stopped the
motorcycle, the said unidentified youngster, carrying rod, asked in
Bagri language as to who are you, on which, Bhim Sain told his
name. On coming to know about his name, all the said four
unidentified youngsters attacked on Bhim Sain and inflicted injuries
in his head with a motive to kill him. I tried to rescue Bhim Sain
from clutches of said assailants, on which, said unidentified
youngsters gave blows of their base ball to me, which rested on my
right eye & right cheek. Bhim Sen raised his hands in order to save
himself, on which, the blows given by said unidentified youngsters
hit on both his hands. Bhim Sen collapsed on ground, however said
youngsters constantly kept on inflicting him injuries and finally, they
committed murder of Bhim Sain. Then all the said four unidentified
persons with their respective weapons fled away towards village
Waryam Khera from the spot on their Motorcycle, lying parked
nearby. I raised alarm, on which, my brother Gurmukh Singh and
family members of deceased Bhim Sain arrived at the spot. I narrated
them entire matter. My brother left the family members of deceased
Bhim Sain near his dead body and got me admitted in Civil Hospital,
Abohar, where I am under treatment. I can identify all the said four
unidentified youngsters, who murdered said Bhim Sain and inflicted
injuries on my person, if appeared before me. So due legal action
may be taken against all the said four youngsters. Statement got
recorded, understood, it is correct."
SUBMISSIONS OF LEARNED COUNSEL FOR THE
PETITIONERS
4. Learned counsel for the petitioners submit that the only star
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witness i.e. the complainant/injured, who stepped into the witness box as
PW-3, did not support the case of the prosecution, and has turned hostile.
5. They further submit that there is no other evidence with the
prosecution which can connect the petitioners with the crime as involved
in the present petition.
6. They also submit that the petitioners have already suffered
incarceration of more than 1 year, and out of the total 26 prosecution
witnesses 10 have been examined so far, therefore, the conclusion of trial
will take long time.
SUBMISSIONS OF THE LEARNED STATE COUNSEL
7. Per contra, the learned State counsel vociferously opposed
the asked for relief, and has placed on record separate replies dated
12.03.2024, by way of affidavits of Mr. Arun Mundan,DSP, Sub-
Division, Abohar, District Fazilka, and also the custody certificate qua
the petitioners, which are taken on record.
8. Learned State counsel, on instructions imparted to him by
ASI Lakhwinder Singh, informs this Court that out of the total 26
prosecution witnesses cited by the prosecution in the final report, 05
witnesses have already been examined, however, one witness has been
given up by the prosecution so far, and next date before the learned trial
Court concerned is dated 14.03.2024.
9. A perusal of the custody certificate reveals that the
petitioners have suffered incarceration of 1 year, 03 months and 11 days
as on today.
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ANALYSIS
10. This Court has heard the learned counsel for both the parties
concerned, and has gone through the entire case file, and also the replies
filed by the State.
11. This Court has examined the replies (supra), and as per the
reply, two persons suffered injury, i.e. one Surjit Singh (complainant) and
another Bhim Sain. Whereas Bhim Sain scummed to his injuries. Ïn the
reply (supra), the cause of death as reported by the Board of Doctors
reads as under:-
"In the opinion of the Board, cause of death is injury to
vital organs like brain and excessive blood due to multiple
injuries which is sufficient to cause death in ordinary
course of nature."
12. During the investigation, the weapon of offence was
recovered from the present petitioners.
13. The motive which was assigned for committing the alleged
crime, was that the accused Parveen was residing in the neighbourhood of
deceased Bhim Sain, and one Golu (uncle of the accused Parveen), who
was also residing in the same street. Two months back of the occurrence
said Golu struck his tractor-trolly against the wall of the deceased-Bhim
Sain, due to which there as an altercation between accused Golu and
Parveen, and the deceased Bhim Sain. Furthermore, there was another
instance of altercation between accused Parveen and deceased Bhim Sain
on playing DJ on high volume.
14. Therefore, the accused Parveen and Golu were nursing
grudges against the deceased Bhim Sain. All the accused including the
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present petitioner in connivance with each other killed Bhim Sain, by
causing injuries to him.
15. "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.
16. 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
gravity of offence(s) involved.
17. In "Nikesh Tarachand Shah V. Union of India", (2018) 11
SCC 1, the Hon'ble Supreme Court has recorded the following:-
"14. In Gurbaksh Singh Sibbia v. State of Punjab,
(1980) 2 SCC 565 at 586-588, the purpose of granting
bail is set out 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
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long back as in 1924 it was held by the High Court of
Calcutta in Nagendra v. King-Emperor 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 All
504 : 33 Cri LJ 94] 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. Hutchinson [AIR 1931 All 356, 358 : 32 Cri LJ
1271] it was said that it was very unwise to make an
attempt to lay down any particular rules which will
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
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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.
28. Coming nearer home, it was observed by Krishna
Iyer, J., in Gudikanti Narasimhulu v. Public Prosecutor
[(1978) 1 SCC 240 : 1978 SCC (Cri) 115] that: (SCC p.
242, para 1)
"... the issue of bail is one of liberty, justice, public
safety and burden of the public treasury, all of which insist
that a developed jurisprudence of bail is integral to a
socially sensitized judicial process. . . . After all, personal
liberty of an accused or convict is fundamental, suffering
lawful eclipse only in terms of procedure established by law.
The last four words of Article 21 are the life of that human
right."
29. In Gurcharan Singh v. State (Delhi Administration)
[(1978) 1 SCC 118 : 1978 SCC (Cri) 41] it was observed by
Goswami, J., who spoke for the court, that: (SCC p. 129,
para 29)
"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."
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30. In AMERICAN JURISPRUDENCE (2d, Volume 8, p.
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 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."
18. Also, in Siddharam Satlingappa Mhetre v. State of
Maharashtra, Criminal Appeal No.2271 of 2010, the Hon'ble Supreme
Court has insisted upon striking a perfect balance of sanctity of an
individual's liberty as well as the interest of the society, in grant or
refusing bail. The relevant extract of the judgment (supra) is reproduced
hereinafter:-
3. The society has a vital interest in grant or
refusal of bail because every criminal offence is the
offence against the State. The order granting or
refusing bail must reflect perfect balance between the
conflicting interests, namely, sanctity of individual
liberty and the interest of the society. The law of bails
dovetails two conflicting interests namely, on the one
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hand, the requirements of shielding the society from
the hazards of those committing crimes and
potentiality of repeating the same crime while on bail
and on the other hand absolute adherence of the
fundamental principle of criminal jurisprudence
regarding presumption of innocence of an accused
until he is found guilty and the sanctity of individual
liberty.
19. This Court has examined the instant petition on the
touchstone of the hereinabove extracted settled and legal principle(s) of
law and is of the considered opinion that the instant petition is amenable
for being allowed.
FINAL ORDER
20. Though there are specific allegations against the present
petitioners, that they have caused injuries to the deceased-Bhim Sain,
however, considering the fact that the main star eye-witness of the
prosecution, who is the complainant/injured, has turned hostile and the
petitioners have suffered incarceration of 1 year, 3 months and 11 days, as
on today, and trial will take some time to conclude, this Court deems it fit
and appropriate to grant the concession of regular bail to the petitioners,
during the pendency of trial. Therefore, without commenting upon the
merits and circumstances of the present case, the present petitions are
allowed. The petitioners are ordered to be released on bail, on furnishing
of their bail bonds and surety bonds to the satisfaction of concerned Chief
Judicial Magistrate/trial Court/Duty Magistrate.
21. However, it is clarified that if in future, the petitioners are
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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.
A photocopy of this order be placed on the file of the
connected case.
(KULDEEP TIWARI)
March 13, 2024 JUDGE
dharamvir
Whether speaking/reasoned. : Yes/No
Whether Reportable. : Yes/No
Neutral Citation No:=2024:PHHC:037141
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