Punjab-Haryana High Court
Ajay Kumar vs State Of Haryana on 5 November, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2024:PHHC:143618
CRM-M-53446-2024 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
212 CRM-M-53446-2024
DATE OF DECISION: 05.11.2024
AJAY KUMAR ...PETITIONER
Versus
STATE OF HARYANA ... RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Manuj Nagrath, Advocate for the petitioner(s).
Mr. B.S.Virk, Sr. DAG, Haryana.
***
SANDEEP MOUDGIL, J (ORAL)
1. Relief Sought
This petition has been filed under section 439 Cr.P.C., 1973
for grant of regular ball to the petitioner in case bearing FIR No. 0033
dated 29.01.2024, under Sections 120-B, 419, 420, 467, 468 of IPC
registered at Police Station Sector 5, District Panchkula.
2. Prosecution story set up in the present case as per the version
in the FIR reads as under :-
'Respected Sir, duplicate copy of the
application is as follows:- Ref. No.PPDWA/2024/03 Dated
29/01/2024 To The SHO, Sector-5, Police Station, Panchkula. Sub:
Trespassing of House No.794, Sector-21, Panchkula Sir, I Rajesh
Dhanda, President of Panchkula Property Dealers Welfare
Association bring in your kind notice that the someone was trying -
to sell the House No.794, Sector-21, Panchkula, Haryana. That the
House 794, Sector-21, Panchkula, Haryana was on sale in the
market. It was being quote by three persons namely i.e. Wazir
Singh, Ajay Kumar and Phool Kumar. These persons were
imposing as Sellers on the behalf of the owner of House No.794,
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Sector-21, Panchkula, Haryana. We verifying the documents we
found that they are carrying duplicate papers, we got suspicious.
We tried to verifying the facts we found that the owner of the said
House is NRI. He has not put his house on the sale and has not
appointed any authorised person to sell his property. We tried to
catch these imposter, we arranged a meeting in Hotel Cove,
Sector-5, Panchkula, Haryana for the finalization of the deal.
These three persons came for further finalization of the deal. We
called the police and handover them to the police for further
investigation. (Sd/- Rajesh Dhanda) Rajesh Dhanda, President,
Panchkula Property Dealers Welfare Association, Haryana. Mob.
No.9876132233.'
3. Contentions
On behalf of the petitioner
Learned counsel for the petitioner has argued that the
petitioner has been falsely implicated in the present case and the present
FIR is based upon the allegations related to attempt to sell the property.
He submits that the case is based upon the documentary evidence and all
the documents are in possession of the police. He further submits that co-
accused namely Parvinder Singh has already been granted concession of
regular bail and co-accused namely Anil Kumar has been granted
concession of interim anticipatory bail by the Supreme Court vide order
dated 14.06.2024 (Annexure P-2). He has further argued that the
petitioner has clean antecedents and no fruitful purpose would be served
by keeping the petitioner behind the bars as conclusion of trial would take
long time as out of total 18 Prosecution Witnesses, only one PW has been
examined so far.
On behalf of the State
On the other hand, learned State Counsel appearing on advance
notice, accepts notice on behalf of respondent-State and has filed the
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custody certificate of the petitioner, which is taken on record. According
to which, the petitioner is behind bars for 9 months and 3 days.
Learned State Counsel on instructions from the Investigating
Officer opposes the prayer for grant of regular bail but is not in a position
to controvert the submissions made by counsel for the petitioner. He
informs the Court that in the present FIR challan stands presented on
26.04.2024 and charges stands framed on 20.05.2024.
4. Analysis
Be that as it may, from the above discussion, it can be culled
out that the petitioner has already suffered sufficient incarceration i.e. 9
months and 3 days, similarly situated co-accused has already been
granted concession of interim bail by the Hon'ble Supreme Court,
antecedents of the petitioner are clean, meaning thereby he is not a
habitual offender, 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
26.04.2024 and charges stands framed on 20.05.2024, out of 18
prosecution witnesses, only one PW 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 therefore, detaining the petitioner behind the bars
for an indefinite period would solve no purpose.
Reliance can be placed 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 or in
correction home is an exception. Relevant paras of the said judgment is
reproduced as under:-
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"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 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
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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 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
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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
fundamental principle of law that right to speedy trial is a part of
reasonable, fair and just procedure enshrined 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.
5. Decision:
In view of the aforesaid discussions made hereinabove, the
petitioner is directed to be released on regular bail on his furnishing bail
and surety bonds 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
05.11.2024
anuradha
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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