Punjab-Haryana High Court
Santosh Kumar Kushwaha vs State Of Haryana on 22 January, 2025
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2025:PHHC:009520
CRM-M-2501-2025 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
233 CRM-M-2501-2025 (O&M)
DATE OF DECISION: 22.01.2025
SANTOSH KUMAR KUSHWAHA ...PETITIONER
Versus
STATE OF HARYANA ... RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Ms. Riffi Birla, Advocate for the petitioner(s).
Mr. Chetan Sharma, DAG, Haryana.
***
SANDEEP MOUDGIL, J (ORAL)
1. Relief Sought
This petition has been filed under Section 483 BNSS,
2023 seeking regular bail to the petitioner in case FIR No.1100 dated
20.12.2021 under Sections 177, 182, 417, 468, 471 of IPC, 1860
(Section 467/120-B IPC added later on) registered at Police Station
Shivaji Nagar, Gurugram.
2. Prosecution story set up in the present case as per the
version in the FIR reads as under :-
'CIS No. CHI-3326 of 2016 State of Haryana v. Mukesh
Kumar Present: Sh. Kapil Bhatti, APP for State. Accused
Mukesh Kumar declared proclaimed person. Order dated
19.10.2021 Summons issued to PWs HC Mukesh Kumar, Ct.
Rakesh and Dr. Vijinder for examination under Section 299
Cr.P.C. are received back served but they are not present. BW in
sum of Rs. 5,000/- each be issued against them. Bailable
warrants issued against surety Raj Kumar son of Radha Charan
R/o H. No. 2057, Nagla Enclave, Part-2, Sector-22, Faridabad
is received back unexecuted. NBW be issued against him. As per
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the report received from registering authority, Faridabad,
vehicle bearing registration No. HR-38-7670 is owned by Vijay
Kumar son of Parshlad and the previous owner one Rakesh
Arora. Surety Raj Kumar his not the owner of the vehicle. It is
apparent that surety Raj Kumar fabricated the registration
certificate of a vehicle by putting fake registration number for
the purpose of cheating. The act is not only fraudulent but
contemptuous as well as deceitful, Surety Raji Kumar
fraudulently and dishonestly induced the Magistrate to release
accused Mukesh on bail which the court could not have done if
it was not so deceived by the surety. Surety Raj Kumar
committed forgery for the purpose of cheating and used as
genuine a forged document. Taking a serious note of the
fallacious demeanor of surety Raj Kumar who dared to make
mockery of the judicial process presuming himself to be clever
adroit, legal action against him is warranted."
3. Contentions
On behalf of the petitioner
Learned counsel for the petitioner submits that the
petitioner has been falsely implicated in the present case and nothing is
to be recovered from his possession, as investigation is complete,
challan stands presented to the Court on 27.08.2024, charges stands
framed on 06.11.2024 and out of total 13 prosecution witnesses, only 3
have been examined so far. He further submits that main accused Raj
Kumar has already been granted concession of regular bail by this
Court vide order dated 13.12.2024 passed in CRM-M-61829-2024,
therefore, prays for grant of regular bail to the petitioner.
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
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filed the custody certificate of the petitioner, which is taken on record.
According to which, the petitioner is behind bars for 7 months and 1
day.
Learned State Counsel on instructions from the
Investigating Officer opposes the prayer for grant of regular bail stating
that the petitioner is involved in other cases, meaning thereby he is a
habitual offender but is not in a position to controvert the submissions
made by learned counsel for the petitioner.
4. Analysis
Be that as it may, from the above discussion, it can be
culled out that the petitioner has already suffered sufficient
incarceration i.e. 7 months and 1 day, main accused has already been
granted concession of bail by this Court, nothing is to be recovered
from the petitioner 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 to the Court on 27.08.2024, charges stands framed on
06.11.2024 and out of total 13 prosecution witnesses, only 3 have been
examined so far, which is sufficient for this Court to infer that the
conclusion of trial is likely to take considerable time and therefore,
detaining the petitioner behind the bars for an indefinite period would
solve no purpose.
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
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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
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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
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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 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
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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 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
22.01.2025
anuradha
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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