Punjab-Haryana High Court
Sanjay Panchal vs State Of Haryana on 30 September, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2024:PHHC:129706
CRM-M-47281-2024 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
215 CRM-M-47281-2024
DATE OF DECISION: 30.09.2024
SANJAY PANCHAL ...PETITIONER
Versus
STATE OF HARYANA ... RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Karan Verma, Advocate
Mr. Tejas Bhatia, Advocate and
Mr. Chirag Suri, 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 483 of BNSS
read with Section 528 of BNSS praying for the grant of regular bail to the
petitioner in FIR No. 88 (P-1) dated 29.05.2020, under Sections 302 and
25 of Arms Act, 1959 (later on added Sections 109, 201 of IPC and
Sections 25 (1) AA, 29(a), 29(B) of Arms Act) registered at P.S. New
Colony, Gurugram ,in the interest of justice.
2. Prosecution story set up in the present case as per the version
in the FIR read as under :-
''To SHO Sahib Thana New Colony
Gurugram sir ji request is that I Jyoti Dureja age 30 years wife
of shri Vikas Dureja Sio Ramchandra Dureja resident of house
no. 741/13 street no. 13, Baldev Nagar Gurugram, My husband
Vikas Dureja used to work of mobile repair, sale and purchase.
My husband had to come to Delhi for his mobile business. My
husband has a car no. HR 26DH-0143 Make Creta White Color
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for Carrying out his business or in connection with his daily
work with this car Creta no. HR-26DH-0143 at around 2 O'
Clock today on 29-5-20 afternoon went from his house then at
about 2-1/2 -3, I got information from my known that your
husband Vikas in Feroze Gandhi Colony had been shot, When I
reached the spot Salong with my family members, I saw that my
husband Vikas Dureja was lying on the driver's seat in a blood-
soaked condition inside the vehicle, whose body was shot and
there was a mirror in the front of the car on the window of the
conductor's side seat, there were many bullet marks on the car
at other places as well. My husband was brought to the hospital
with the help of police and other people, where there was a lot of
crowd, my husband Vikas Dureja died on the way to the hospital.
And in Government Hospital Gurugram, my husband Vikas
Dureja was declared dead. My husband Shri Vikas Dureja, Age
38 Years, S/o Shri Ramchandra was killed through shot by
unknown person of unknown address. Please take the strictest
action against persons killing my husband. My husband Shri
Vikas Dureja, S/o Shri Ramchandra Dureja Age 38 Years, Jyoti
Date 29-5-2020 Mobile no. 9953465789. on police proceeding
on received information from control room Gurugram that in
Feroze Gandhi Colony in Kali Mata Wali Gali, on which
information was received from control room on dated 29-5-20 at
about 2:40 PM from Manager Police Station ASI Sant Kumar
276/GGM HC Sanjay 853/GGM, Saurabh 4759/GGM Gunman
& Govt. Car No. HR26DW-6426 whose driver is C. Krishan
Kumar 2104 reached on the spot. where a large crowd was
gathering, the incident was reported to the higher authorities
and the seen of crime was informed reaching the spot. During
the inspection of the incident site photographed, 7.62 X 2.5 in
empty shells and 311-9X19 empty 11 shells and one empty shell
with 1 empty shell on which 9mm written, which were found on
the basis of evidence, through receipt of separate cloth, Four
seals were sewn from RK take in possession, but Jyoti, the wife
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of the deceased Vikas Dureja, along with her family members
Dewan Dureja resident Jyoti Park and father-in-law Ram
Chander, presented the above complaint, in the essence of the
complaint, crime occurrence under section 302 IPC, 25-54-
59.A. ACT. A written article is being sent to the police station
through HC Sanjay 853, after registering a special report and
sent to the service of higher officers and area / duty magistrate, I
research on the spot including staff. I am busy. So, Firoz Gandhi
Colony Manager Officer Police Station New Colony Gurugram
Date 29-5-2020 Time 7-20pm at Police Station: On receipt of
the above article at the police station, prosecution no. 88, Dated
29-05-2020 at 7-20 PM Police Station New Colony Gurugram
Registered No. 88 Dated 29-05- 2020 U/s 302 IPC 25-54-59 A
ACT and prepared a copy by computer. Whose special report
will be sent to the service through E-mail to Elaqa Magistrate
and higher officials, copy is being sent to Police with original
article by HC Sanjay No. 853/GGM to Police Station Manager
on spot. This charge has been registered in the presence of Si
Ravindra.'
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 name of
the petitioner came out for the first time in the alleged disclosure
statement given by one co-accused namely Rajiv. The instant FIR was
registered on 29.05.2020 and the present petitioner was arrested on
16.10.2023 after a gap of almost 2 years and 5 months. He further
submits that the main accused namely Naveen Kumar has already been
granted concession of regular bail vide order dated 22.08.2024 passed in
CRM-M-39320-2024 and no fruitful purpose would be served by keeping
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the petitioner behind the bars as conclusion of trial would take long time
as out of total 39 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 11 months and 13
days.
Learned State Counsel on instructions from the Investigating
Officer opposes the prayer for grant of regular bail on the ground that the
petitioner is involved in many other FIRs 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
21.12.2023 and charges are yet to be framed.
4. Analysis
From the above case it can be culled out that the petitioner
has already suffered sufficient period in custody i.e. 11 months and 13
days, he was arrested after 2 years and 5 months from the date of
registration of the FIR, the main accused has already been granted
concession of bail by this Court, 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 21.12.2023 and charges are yet to be framed, out of 39
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.
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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
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.
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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
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.
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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.
As far as the pendency of other cases and involvement of
the petitioner in other cases is concerned, reliance can be placed upon
the order of this Court rendered in CRM-M-25914-2022 titled as
"Baljinder Singh alias Rock vs. State of Punjab" decided on
02.03.2023, wherein, while referring Article 21 of the Constitution of
India, this Court has held that no doubt, at the time of granting bail, the
criminal antecedents of the petitioner are to be looked into but at the
same time it is equally true that the appreciation of evidence during the
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course of trial has to be looked into with reference to the evidence in
that case alone and not with respect to the evidence in the other
pending cases. In such eventuality, strict adherence to the rule of denial
of bail on account of pendency of other cases/convictions in all
probability would land the petitioner in a situation of denial of the
concession of bail.
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
30.9.2024
anuradha
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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