Punjab-Haryana High Court
Vijay Kumar vs State Of Haryana on 8 May, 2024
Neutral Citation No:=2024:PHHC:064074
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
110 CRM-M-6316-2024
Date of Decision : May 08, 2024
VIJAY KUMAR -PETITIONER
V/S
STATE OF HARYANA -RESPONDENT
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present: Mr. Sumit S. Bairagi, Advocate
for the petitioner.
Mr. Bhupender Singh, D.A.G., Haryana.
***
KULDEEP TIWARI, J. (ORAL)
1. Through this third petition, the petitioner craves for indulgence
of this Court for him being enlarged on regular bail, in case FIR No.115
dated 23.04.2021, under Sections 302, 506, 34 of the IPC, and, Section
25/54/59 of the Arms Act, 1959, registered at P.S. Ram Nagar, District
Karnal.
2. It would be apt to record here that the second bail petition of
the petitioner, i.e. CRM-M-35192-2023, was withdrawn by the petitioner on
09.10.2023, however, with liberty to file a fresh one before the learned trial
Court. The relevant extract of the order dated 09.10.2023, as drawn upon
petition (supra), is reproduced hereunder:-
"Counsel for the petitioner submits that since one of the co-
accused of the petitioner has been granted the concession of regular
bail by the trial Court, therefore he may be granted permission to
withdraw this petition with liberty to file afresh bail application
before the trial Court.
Dismissed as withdrawn.
In case, any fresh application for bail is filed before the trial
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Court, the same will be decided by the trial Court without being
influenced that the first bail application of the petitioner was
dismissed by this Court."
3. Accordingly, the petitioner preferred a regular bail application
before the learned trial Court, however, he remained unsuccessful, as he was
declined bail by the latter, vide order dated 30.10.2023. Consequently, the
petitioner has now filed this third bail petition, primarily on the ground that,
since his case is on a better footing than two of his co-accused, who have
already been granted the concession of regular bail by the learned trial Court
and by a Coordinate Bench of this Court, therefore, he also deserves an alike
treatment.
ALLEGATION AGAINST THE PETITIONER
4. The genesis of the prosecution case is embodied in the
statement of one Charanjit Singh @ Santy (deceased's brother/complainant).
Succinctly stated, the sole allegation against the petitioner is that he had
raised 'lalkara'. The gist of the allegations, as narrated in paragraph No.3 of
the order dated 30.10.2023, whereby, the learned Additional Sessions Judge,
Karnal, has dismissed the third bail application of petitioner, is extracted
hereinafter:-
".....Sunil Gaurav and Ajay Kumar had caught hold of his brother
from his arms and Vijay Kumar (present applicant-accused) was
raising lalkara that he should not be spared. Goldy Gagan was
armed with a knife, he attempted to rescue his brother but in front of
him Goldy Gagan gave a knife blow on the right side chest of his
brother Monu and also gave two knife blows on his right shoulder
on account of which his brother fell down. He raised hue and cry
upon which his friend Rajat Kumar, his wife Shalu and other
neighbourers reached on the spot. Upon seeing them coming, the
assailants ran away from the spot and while going away threatened
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to kill them on getting an opportunity...."
SUBMISSIONS OF LEARNED COUNSEL FOR THE PETITIONER
5. The learned counsel for the petitioner has submitted that, since
petitioner's co-accused, namely, Ajay and Sunil @ Gaurav, who are alleged
to have caught hold of the complainant's brother/deceased, have been
granted the relief of bail respectively by a Coordinate Bench of this Court
and by the learned trial Court, therefore, the petitioner, whose case is on a
better footing than co-accused (supra), as he is only alleged to have raised
'lalkara', also deserves the concession of bail.
6. Lastly, the learned counsel for the petitioner has submitted that,
since the petitioner has been languishing behind the bars since April, 2021,
and there is no likelihood of the trial concluding any time soon, inasmuch
as, only 6 prosecution witnesses, out of total 18 witnesses, have been
examined so far, therefore, he deserves him being granted the relief of bail,
as his prolonged incarceration would not serve any gainful purpose.
SUBMISSIONS OF THE LEARNED STATE COUNSEL
7. Per contra, the learned State counsel has vociferously opposed
the grant of bail to the petitioner, on the ground that, since there is no
change of circumstances, therefore, the petitioner is barred from maintaining
this third bail petition. He further submits that, during the course of
investigation, blood stained clothes of the petitioner were recovered, which
establishes his presence at the spot.
8. The learned State counsel has, on instructions imparted to him
by the official concerned, verified that, out of total 18 prosecution witnesses,
only 6 witnesses have been examined so far. He also verifies that the
petitioner has been behind the bars since April, 2021, and that, he is not
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involved in any other criminal case.
ANALYSIS
9. 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.
10. "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.
11. 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.
12. 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
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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
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
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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
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."
13. 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 :
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"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 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,
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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
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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."
14. Be that as it may, this Court has examined the instant petition
on the touchstone of the hereinabove extracted settled legal principle(s) of
law and is of the considered opinion that the instant petition is amenable
for being allowed.
15. The reason for forming the above inference emanates from the
factum that:- (i) petitioner's co-accused, who are alleged to have caught
hold of the deceased, have already been enlarged on bail, whereas, petitioner
is only alleged to have raised 'lalkara'; (ii) uncontestedly, the petitioner has
suffered incarceration of approx. 3 years and has clean antecedents; (iii)
there is no likelihood of the trial concluding anytime soon, as only 6
prosecution witnesses, out of total 18 witnesses, have been examined so far,
therefore, keeping the petitioner behinds the bars would serve no gainful
purpose.
FINAL ORDER
16. Considering the hereinabove made discussion, this Court deems
it appropriate to grant the concession of regular bail to the petitioner.
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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.
17. Anything observed here-in-above shall have no effect on the
merits of the trial and is meant for deciding the present petitions only.
(KULDEEP TIWARI)
May 08, 2024 JUDGE
devinder
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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