Punjab-Haryana High Court

Mark Masih vs State Of Punjab And Another on 23 September, 2024

Author: Sandeep Moudgil

Bench: Sandeep Moudgil

                                       Neutral Citation No:=2024:PHHC:125995




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209   IN THE HIGH COURT OF PUNJAB AND HARYANA
                   AT CHANDIGARH

                                               CRM-M-37222-2024
                                               Date of Decision: 23.09.2024

MARK MASIH                                                     ...Petitioner
                                Vs.

STATE OF PUJAB AND ANOTHER                                     ...Respondents

CORAM:- HON'BLE MR. JUSTICE SANDEEP MOUDGIL

Present:     Ms. Abhilasha Kainth, Advocate for
             Mr. Brijeshwar Singh Bhalla, Advocate
             for the petitioner.

             Mr. Jaspal Singh Guru, AAG Punjab.

SANDEEP MOUDGIL, J. (Oral)

1. Relief sought

The jurisdiction of this Court has been invoked under Section

439 Cr.P.C. seeking the concession of grant of regular bail to the present

petitioner in the instant FIR No. 2 dated 05.01.2024 under Section 379-B

(2) IPC as registered at the Police Station Ranjit Avenue, District Police

Commissionerate, Amritsar.

2. Prosecution story setup in the present case as per the version

narrated in the instant FIR reads as under:-

"I Sikander son of Arvind Kumar am resident of House No. 368 Gali Theke Wali Janatpura C-Block Ranjit Avenue Amritsar and do a labor job. Today I was going on motor cycle PB 02EN 3820, Splender Black colour to take my brother Akash who is working in Restaurant Total Town D-Block Ranjit Avenue and when I was going and reached PR chowk and was

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waiting for him outside the restaurant and was calling him from my mobile Redmi-9 with Sim No.955494925, 9803738332 on his mobile no.6284636123 and at about 8.40 PM 3 clean shaven persons came walking and snatched my motor cycle No. PB 02EN 3820 Splendor black colour forcibly by showing me datar and went away. Till. Now I and my brother were searching for them but could not raise them. Kindly legal action be taken against them. LTI/-Sikander."

3. Contentions

On behalf of the petitioner

The Ld. counsel for the petitioner submits that with the

intervention of the respectable members of the society, the dispute

between the parties stands settled by way of compromise dated

05.03.2024, Annexure P-2, as executed by the respondent

no.2/complainant who has undertaken not to pursue this case against the

present petitioner before the Trial Court.

On behalf of the State

On the other hand, the Ld.s State counsel has produced the

custody certificate of the petitioner today in Court, which is taken on

record. He submits that challan stand presented on 12.04.2024 and charges

having been framed on 13.05.2024. And none of the prosecution witnesses

have been examined yet. Therefore, no purpose would be served in further

keeping the petitioner behind bars indefinitely. He fairly submits that

custodial interrogation of the petitioner is not required.

4. Analysis

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Be that as it may, considering the custody period i.e. 08

months for which the present petitioner has suffered incarceration; in

addition to the fact that investigation is complete, challan having been

presented on 12.04.2024; charges having been framed on 13.05.2024. Out

of total 11 witnesses none has been examined yet which is suffice for this

Court to infer that the conclusion of trial will take a considerable amount

of 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

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

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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

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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.

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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 as 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

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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)
                                                       JUDGE
23.09.2024
kv
Whether speaking/reasoned   :      Yes/No




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