Punjab-Haryana High Court
Jarif vs State Of Haryana on 23 September, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
212
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-43826-2024
Date of Decision: September 23, 2024
JARIF
....Petitioner(s)
VERSUS
STATE OF HARYANA
....Respondent(s)
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Aman Pal, Advocate
for the petitioner.
Mr. B.S. Virk, Senior DAG, Haryana.
****
SANDEEP MOUDGIL, J.(ORAL)
1. Relief Sought
The jurisdiction of this Court under Section 483 of Bhartiya
Nagrik Suraksha Sanhita, 2023 has been invoked seeking the concession of
grant of regular bail for the petitioner in FIR No.844 dated 27.12.2023, under
Sections 392, 397, 412, 120-B of IPC and Section 25(1-B)(A) of Arms Act,
1959, as registered at Police Station Chandani Bagh, Panipat.
2. Prosecution story set up in the present case as per the version
narrated in the instant FIR reads as under :-
'Copy of application is as under: to, SHO Sahab, PS
Chandnibagh, Panipat. Respected sir. my submission is that I, Anmol
Gaba, s/o Rakesh Kumar Gaba, house no. 1682, Sector 12, Panipat. I
have a plastic granule manufacturing factory at sector 25, Shri Ram
Marg. Yesterday on 26.12.2023, I had gone from my factory to my house
at HUDA, Sector 12, at about 8.00 PM. In my absence, 4-5 men of my
factory labor were working under the supervision of my contractor
Gulshan son of Satbir Singh, resident of village Andawar, police station
Danahar, district Mainpuri, UP. Some laborers were sleeping. At about
4.00 AM, I got a call from my factory contractor Gulshan on my mobile
number 9034700069 that tonight between 3.00 AM to 3.30 AM, 3 to 4
boys entered the factory, showed us their PISTOL and took 13-14 plastic
grain bags. They snatched by putting the bags in their Baleno car. On
receiving this information, I came to my factory and talked to all the
workers who told me the above fact that 3-4 boys had come to our
factory in a BALENO CAR and they looted plastic grains from the
factory at pistol point. Now I have come to you. Please take action
against the persons came in the unknown BALENO CAR and get our
goods. The above mentioned boys have assaulted my workers.'
3. Contentions
On behalf of the petitioner
The Ld. counsel for the petitioner has argued that the petitioner
has been falsely implicated in the present case and has only been nominated as
an accused on the basis of the disclosure statement of the co-accused, otherwise
he was not even named in the instant FIR. The Ld. counsel for the petitioner
also submits that the petitioner has been in custody since 10.01.2024. And, he
further submits that the co-accused namely Mukar Singh has already been
granted the concession of regular bail by this Court vide order dated
04.09.2024.
On behalf of the State
On the other hand, the Ld. 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 the same,
the petitioner is behind bars for almost 08 months 10 days.
The Ld. State Counsel on instructions from the Investigating
Officer opposes the prayer for grant of regular bail, but he is not in a position to
controvert the submissions as made on behalf of the petitioner. He informs the
Court that in the present FIR, challan stands presented on 06.03.2024 and
charges stand framed on 07.06.2024. He further submits that the petitioner is
involved in four other FIRs, meaning thereby he is a habitual offender and does
not deserve the concession of grant of bail.
4. Analysis
From the above case it can be culled out that the petitioner has
been nominated as an accused only on the basis of the disclosure statement of
the co-accused, otherwise he was not even named in the instant FIR and the
co-accused namely Mukar Singh has already been granted the concession of
regular bail by this Court. Also the petitioner has already suffered sufficient
period in custody i.e. 08 months 10 days and as per the principle of the criminal
jurisprudence, no one shall be considered guilty, till the guilt is proved beyond
reasonable doubt. Whereas in the instant case, challan stood presented on
06.03.2024, charges having been framed on 07.06.2024 and out of total 15
prosecution witnesses, none has been examined yet, which is sufficient for this
Court to infer that conclusion of the trial is likely to take a considerable amount
of time and detaining the petitioner further behind bars for an indefinite period
would solve no purpose.
Reliance can be placed upon the judgment of the Apex Court as
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. 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. 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 the 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
in all probability would land the petitioner in a situation of denial of
concession of bail.
5. Decision:
In view of the aforesaid discussions made hereinabove, the
petitioner is hereby directed to be released on regular bail under Section 483 of
Bhartiya Nagrik Suraksha Sanhita, 2023 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)
JUDGE
23.09.2024
Sangeeta
Whether reasoned/speaking: Yes/No
Whether reportable: Yes/No
