Punjab-Haryana High Court
Arun Thakur Alias Anku vs State Of Punjab on 2 September, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2024:PHHC:113584
CRM-M-41224-2024 -1-
216
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-41224-2024
DECIDED ON: 02.09.2024
ARUN THAKUR ALIAS ANKU
.....PETITIONER
VERSUS
STATE OF PUNJAB
.....RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Gaurav Kalsi, Advocate
for the petitioner.
Mr. Jasjit Singh Rattu, DAG, Punjab.
SANDEEP MOUDGIL, J (ORAL)
1. Relief sought
The jurisdiction of this Court has been invoked under Section
439 Cr.P.C. for grant of regular bail to the petitioner in FIR No.81, dated
02.09.2022, under Sections 365, 34 IPC (Sections 302, 307, 148, 149, 202,
201, 212, 216, 120-B IPC added later on) and (Section 34 IPC deleted),
registered at Police Station Sadar Pathankot, District Pathankot.
2. Prosecution story setup in the present case as per the version in
the FIR as under:-
"Statement of Mandeep Sahota S/o Late Sh. Gurnam
Masih, resident of H.N.T-2 733 Jugial colony, Police
Station Shahpurkandi, aged about 31 years, PH N.
9517969326, stated that I am the resident of
abovementioned address and a private crane operator,
My younger brother Navdeep Sahota, who is doing the
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job of Beldar in the UBDC Canal department at Bhimpur
Ejector, my brother has gone for duty from the house in a
routine manner, I went to Ejector for giving him meal,
where I came to know that some unknown persons in
verna type car of white colour, in which four persons
were riding and whose number plate has been covered,
have taken away my brother Navdeep Sahota in the car
at about 10 PM on 01.09.22 after giving him beatings, till
now I have been searching him with the help my
relatives, but so far nothing has been found about my
brother, so today I along with my sister in law, Santosh
wife of Navdeep Sahota were going to inform you, you
have met, action be taken. Abovementioned unknown
persons hide my brother somewhere. Signatures in
English Mandeep Sahota abovesaid, signatures in
Punjabi Santosh wife of Navdeep, /o Jugial colony,
attested Tarsem Singh ASI I/C PP Gharota Ps Sadar
Pthankot, dated 02.09.2022. Today | ASI along with Asl
Gurmit Rai 473, AS Ratan Kal 1013/PT, HC Gurmit Sigh
762 by riding in the govt. vehicle PB- 35-2-0645, driver
of the same is AS Balbir Singh 167, were patrolling and
present at Bhimpur bridge, then the abovesaid Mandeep
Sahota alongwith his sister-in-law Santosh w/o Navdeep
Sahota came to me and Mandeep Sahota has recorded
his abovesaid statement to me. Whose statement was
written and read over to him. Who, after believing his
statement to be correct, has appended his signatures
below in the English and his sister-in-law Santosh have
appended her signatures in Punjabi as witness, the same
were attested by me, from the statements, offence under
section 365, 34 IPC have been found to be made out,
original memo of statement is being sent to Police station
through HC Gurmit Singh 962. Case number be informed
after registration of the same. Special reports be issued
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and be sent to llaga Magistrate and senior officials.
Control room be informed through wireless. I ASI along
with colleagues and complainant, is going to the place of
occurrence. Today in the area of Bhimpur Bridge, AT
07.50 PM. Sd/- Tarsem Singh ASI I/c PP Gharota, PS
Sadar Pathankot, Dated 02.09.2022."
3. Contention
On behalf of the petitioner
Learned counsel for the petitioner contends that the petitioner
was neither named in the FIR nor any allegation has been levelled against
him. He further contends that the complainants in the instant FIR have
become hostile and have not supported the case of the prosecution. It has
been asserted on behalf of the petitioner that no incriminating material
against the present petitioner is available with the Investigating Agency to
connect him with the commissioning of offence either under Sections 302 &
307 or 365 of IPC. It has been submitted that co-accused namely Deepak
Singh @ Deepu has been granted the concession of regular bail by this Court
vide order dated 25.01.2024 (Annexure P-4) passed in CRM-M-59227-2023.
On behalf of the State
On the other hand, learned State counsel has produced the
custody certificate of the petitioner today in Court, which is taken on record.
He seeks dismissal of the instant petition on the ground that the petitioner is
a habitual offender as he is involved in five more cases.
4. Analysis
Be that as it may, considering the custody period i.e. 01 year, 05
months and 01 day for which the petitioner has suffered incarceration; co-
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accused namely Deepak Singh @ Deepu has been granted the concession of
regular bail by this Court vide order dated 25.01.2024 (Annexure P-4)
passed in CRM-M-59227-2023; the complainants in the instant FIR have
become hostile and have not supported the case of the prosecution added
with the facts that investigation is complete, challan stands presented to
Court on 26.05.2023, charges were framed on 27.09.2023 and out of total 58
prosecution witnesses, only 12 witnesses have been examined so far, which
is suffice for this Court to infer that the conclusion of trial will take a long
time for which the petitioner cannot be detained behind the bars for an
indefinite period.
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
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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 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
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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
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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
basic and 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 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
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in all probability would land the petitioner in a situation of denial of
concession of bail.
5. DECISION:
In view of the discussions made hereinabove, the petitioner is
hereby directed to be released on regular bail on his furnishing bail and
surety bonds to the satisfaction of the trial Court/Duty Magistrate,
concerned.
In the afore-said terms, the present petition is hereby allowed.
However, it is made clear that anything stated hereinabove shall
not be construed as an expression of opinion on the merits of the case.
(SANDEEP MOUDGIL)
02.09.2024 JUDGE
Poonam Negi
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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