Punjab-Haryana High Court
Prem Kumar vs State Of Punjab on 25 October, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2024:PHHC:140455
CRM-M-52228-2024 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
215 CRM-M-52228-2024
DATE OF DECISION: 25.10.2024
PREM KUMAR ...PETITIONER
Versus
STATE OF PUNJAB ... RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr.Ashutosh Gupta, Advocate for the petitioner(s).
Mr. J.S. Rattu, DAG, Punjab.
***
SANDEEP MOUDGIL, J (ORAL)
1. Relief Sought
This petition has been filed under Section 483 of the
Bhartiya Nagarik Suraksha Sanhinta, 2023 for grant of Regular
Bail to the Petitioner in FIR No. 121 dated 04.08.2024 under Sections 118
(1), 118(2) [added later on], 324(2), 190 and 191(2) of Bhartiya Nyaya
Sanhinta (BNS), 2023 registered at Police Station: PS Malout, District:
Sri Muktsar Sahib.
2. Prosecution story set up in the present case as per the version
in the FIR reads as under :-
'Statement of unknown Dheeraj Kumar, son of Satpal
Galhotra, son of Lajpat Rai, resident of Gobind Nagar, near Water
Works Office, Ward No. 03, Malout, aged around 43 years, mobile
number 9464804197.1, residing at the aforementioned address,
have a shop near Super Bazaar, near Janeja Hospital. I run a
business selling garments and ready-made clothes at my shop
Galhotra Garments. Today, around 10 AM, I was sitting in my shop
when outside my shop, Rajkumar, Harish Kumar (sons of Madan
Lal), Akshay (son of unknown) Sajan, son of unknown, Prem
Kumar, Gora (son of Prem Kumar) Kiran Bala (wife of Ashwani
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Kumar), residents of Malout, and some two other unidentified
persons gathered outside my shop. They were holding swords and
daggers. As soon as they arrived, they attacked my shop and broke
glass door of my shop. I went outside to stop them, and when I
confronted them, Rajkumar had a dagger in his hand, which he
struck at me, hitting side of my left hand's palm. Prem Kumar
struck me with an axe he was holding, hitting my right hand's
thumb. Prem Kumar's son Gora hit my head with a sharp object.
Rajkumar's nephew Sajan hit my nose with a stick. I raised an
alarm, and other unidentified persons also started beating me. I
ran into my shop to save myself, and seeing the gathering of people
nearby, they closed the shutter of my shop and fled. A boy named
Sonnu, who works at my shop, arranged for a vehicle and admitted
me to the Civil Hospital, Malout, for treatment. They also beat one
named Surinder Kumar, son of Harkrishan, resident of Village
Malout, who also works at my shop and was trying to save me
hitting on wrists of his right and left hands, causing injuries that
required treatment. These people attacked me because they hold
grudges against me for my work. The statement was written and
read out to me, and I confirmed it as correct. Sd/- Dheeraj Kumar
the above-named Complainant, Surinder Kumar son of Harkrishan
Singh, Village Malout, Verified By ASI Jarnail Singh, PS City
Mallot Dt. 04.08.2024.'
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 as per the
allegations, the petitioner has hit on the right hand thumb of the
complainant with an axe and the injury is not grievous in nature, therefore
Section 118(2) BNSS would not be made out against the present
petitioner. He submits that there is unexplained delay of 10 hours in
filing the present FIR and nothing has been recovered from the petitioner,
added with the fact that he is not involved in any other case, meaning
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thereby he is not a habitual offender. He asserts that co-accused namely
Sajan and Raj Kumar have been granted concession of anticipatory bail
vide orders dated 10.09.2024 and 17.09.2024 passed in CRM-M-44897-
2024 and CRM-M-46134-2024. He has argued that 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 26 Prosecution Witnesses,
none 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 custody certificate of the petitioner, which is taken on record.
According to which, the petitioner is behind bars for 1 month and 29
days.
Learned State Counsel on instructions from the Investigating
Officer opposes the prayer for grant of regular bail stating that the
petitioner being armed with axe had hit the complainant 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
22.10.2024 and charges are yet to be framed.
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. 1
month and 29 days, similarly situated co-accused have already been
granted concession of bail by this Court, antecedents of the petitioner are
clean. Moreso, qua the injury attributed to the petitioner, it was on the
non-vital part of the complainant and as per the principle of the criminal
jurisprudence, no one should be considered guilty, till the guilt is proved
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beyond reasonable doubt, whereas in the instant case, challan stands
presented on 22.10.2024 and charges are yet to be framed, out of 26
prosecution witnesses, none 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 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:-
"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
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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
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
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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
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.
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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
25.10.2024
anuradha
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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