Punjab-Haryana High Court
Sabir vs State Of Haryana And Another on 5 September, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2024:PHHC:116267
CRM-M-42639-2024 -1-
221
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-42639-2024
DECIDED ON: 05.09.2024
SABIR
.....PETITIONER
VERSUS
STATE OF HARYANA AND ANOTHER
.....RESPONDENTS
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Mazlish Khan, Advocate and
Mr. Vikrant Koundal, Advocate
for the petitioner.
Mr. B.S. Virk, Sr. DAG, Haryana.
SANDEEP MOUDGIL, J (ORAL)
1. Relief sought
The jurisdiction of this Court has been invoked under Section
483 BNSS, 2023 for grant of regular bail to the petitioner in FIR No.431,
dated 27.07.2022, under Sections 406, 420, 467, 468, 471 and 120-B IPC
IPC, registered at Police Station Tehsil Camp, District Panipat (Haryana).
2. Prosecution story setup in the present case as per the version in
the FIR as under:-
"Sir, it is request that I am Sundram S/O Nirbhay
Srivastava Noorwala, resident of Panipat. On 28- 06-
2022, 1 received a call on my mobile number
9306920658 from number 8260320844 and said that I
am your father Nirbhay Srivastava's friend Sharma, a
tempo driver, I have sent some QR CODE on your
WhatsApp number 9306920658 from WhatsApp mobile
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number 9518423246, you scan them and enter the PIN,
then money will come in your account, then I listened to
his words. Scanned all the QR CODE and entered my
PATYM PIN and then a total of Rs 36,098 was deducted
from the account by 24,999, 4,999, 1,600, 4,500. My bank
account number is 40625547150 IFSC CODE
SBIN0016896. Legal action should be taken.
FRAUDSTER asked to return the money in this regard. I
had also called from mobile number 7690886871 in this
regard and filed CYBER COMPLAINT NO.
31306220004165, today 1 have presented my written
application with complete details to you. SD SUNDRAM
DT 27-07-2022 mob No. 9306920658 When the
application is received at the above police station, case
no. 431 dated 27.07.2022 Section 406,420 IPC
registered, police station Tehsil Camp Panipat, copies of
the FIR were prepared by computer and the origina!
application was handed over to the police and taken by
the SI in his affidavit. The outstanding Nakulat FIR will
be sent to the service of Bajriya Postal Area Magistrate
Saheb and Officer Bala. Note-The case is being
registered in the CCTNS code of Haja SHO Saheb and in
the presence of SI Ajay."
3. Contentions
On behalf of the petitioner
Learned counsel for the petitioner contends that the petitioner
has been arrested in another FIR No.01, dated 01.07.2022, registered at
Police Station Cyber Crime, Panipat on 23.02.2024 and without recording
his disclosure statement in that FIR, the petitioner has been falsely
implicated in the present case for which the untrace report has already been
submitted and the petitioner has been taken on production warrants on
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12.04.2024. He further contends that there is no incriminating material with
the prosecution to connect the petitioner with the alleged crime and nothing
has been recovered from the present petitioner. It has been submitted on
behalf of the petitioner that there is a compromise entered into between the
petitioner and the complainant, as is evident from Annexure P-2.
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
involved in one more case, meaning thereby he is a habitual offender.
4. Analysis
Be that as it may, considering the custody period i.e. 04 months
and 23 days for which the petitioner has suffered incarceration; the
compromise has been entered into between the parties as is evident from
Annexure P-2, nothing has been recovered from the present petitioner in
addition to the fact that investigation is complete, challan stands presented to
Court on 10.07.2024, charges were framed on 30.08.2024 and out of total 11
prosecution witnesses, none has 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:-
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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
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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
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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
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.
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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
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)
05.09.2024 JUDGE
Poonam Negi
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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