Punjab-Haryana High Court
Sawan vs State Of Haryana on 29 January, 2025
Author: Anoop Chitkara
Bench: Anoop Chitkara
CRM-M-49254-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-49254-2024
Reserved on: 10.01.2025
Pronounced on: 29.01.2025
Sawan ...Petitioner
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Anmol Sharma, Advocate
for the petitioner.
Mr. Aashish Bishnoi, DAG, Haryana.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Station Sections
44 25.02.2024 Thanesar City, District 307/323 read with 34 IPC and
Kurukshetra 25 of Arms Act
1. The petitioner incarcerated in the FIR captioned above came before this Court
under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking regular
bail.
2. Per paragraph 17 of the bail application and para 8 of the reply, the accused has
the following criminal antecedents:-
Sr. FIR No. Dated Offenses Police Station
No.
1. 439/2021 - 323/325/308/506 IPC Kurukshetra University,
Kurukshetra
2. 322/2021 - 379-B/325 IPC Butana, District Karnal
3. 122 25.02.2024 25-54-59 of Arms Act Krishna Gate Thanesar,
District Kurukshetra
3. The facts and allegations are being taken from the reply dated 07-11-2024, filed
by the State, which reads as follows:
"2. That the complainant namely Umesh Kumar had
given the statement that on 24.02.2024, he along with his
friends namely, Nishu Garg, Prince son of Sohan Lal and
Prince son of Neelam Kumar had gone to Divine Mall for
watching movie in the car of Nishu Garg bearing
registration No. HR41L-6125 Make Tata Punch and as
soon as they parked the car in the parking of the said
mall, one boy came there and gave 3/4 fist blow on the
bonnet of the said car. On seeing this, complainant
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alighted from the car and on being asked, the said boy hit
on his head with a sharp object and also fired gun shot
with a revolver towards the complainant with the
intention to kill him. However, he sat down immediately.
Thereafter, the said boy pointed his revolver towards
Prince, son of Neelam who was sitting in the car but
Prince moved the said revolver aside with his hand.
Thereafter, the said boy hit the rear window of the said
car with some object and subsequently, he snatched the
keys of the car from Nishu Garg and took away the said
car. But after 15 minutes, the said boy left the car at the
gate of Divine Mall and also threw away the keys of the
said car and fled away with his associate on Bullet
motorcycle but they could not note down the registration
number of the said Bullet motorcycle. However, he can
identify the boy on being confronted. On the alarm raised
by them, the passerby took him and Prince, son of Sohan
Lal to B.S. Heart Care Hospital Kurukshetra, where they
were being treated. Lastly, he prayed for taking strict
legal action against the wrongdoers."
4. The petitioner's counsel prays for bail by imposing any stringent conditions and
contends that further pre-trial incarceration would cause an irreversible injustice to the
petitioner and their family.
5. The State's counsel opposes bail and refers to the reply.
6. It would be appropriate to refer to the following portions of the reply, which read
as follows:
"6. The role of the petitioner: That the petitioner/
accused has been booked under Sections 307, 323, 34 IPC
and Section 25 of Arms Act, with the allegations that he
along with his accomplices, had caused injuries to the
complainant and his friends by using deadly weapons and
also fired gun shots. The shell of bullet was recovered by the
police on the same day, and this fact prima facie proves the
firing of gun shot. Moreover, the gun was recovered from the
petitioner/ accused at the time of his arrest."
7. Pursuant to the directions of this Court a TIP was conducted, and a status report
was filed; the relevant portion of the status report dated 07-12-2024 reads as follows:
"3. That, in compliance of orders of this Hon'ble
Court, before the Court of learned Chief Judicial Magistrate
Kurukshetra the answering respondent moved an
application with a prayer to conduct the test identification
parade of petitioner/ accused. On the application of the
answering respondent, the test identification parade was
conducted in the presence of Dr. Mohini, Learned Chief
Judicial Magistrate, Kurukshetra vide order dated
28.11.2024. During identification, Dr. Mohini Learned Chief
Judicial Magistrate, Kurukshetra reached at District Jail
and called for the I.O. who was already present there.
Thereafter, the accused was brought from the District Jail to
the veranda of Medical premises of District Jail,
Kurukshetra in muffled face along with 8 other accused of
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same height and built and accused was made to stand in a
line with 8 other accused in following sequence (from left to
right). Thereafter, complainant (Umesh Kumar) was called
in the veranda of Medical Premises of District Jail
Kurukshetra and was asked to identify the accused of the
present case. But, despite making earnest efforts, he could
not identify the accused/ petitioner standing at serial no.7.
The copy of order dated 28.11.2024 passed by Dr. Mohini,
Learned Chief Judicial Magistrate Kurukshetra is enclosed
herewith Annexure R-1/A for kind perusal of this Hon'ble
Court.
4. That as per the order dated 28.11.2024 passed by Learned
Chief Judicial Magistrate Kurukshetra, the complainant
Umesh Kumar has failed to identify the petitioner/ accused.
However, the petitioner/ accused along with co-accused of
the present case has committed crime of serious nature and
his name came into present case, from the disclosure
statement made by Astik alias Vasu. During investigation of
the present case the following evidence came out against the
petitioner/ accused:-
The evidence against the petitioner/ accused
a). Demarcation of the place of incident by the petitioner.
b). Recovery of Bullet Motor Cycle used in the present crime
from the petitioner.
c). Recovery of illegal pistol used by the petitioner in the
present crime."
8. Although apart from test identification parade, there may be other evidence like
recovery of weapon, but for the reasons best known to the police, the test identification
parade was initially not conducted and now it has been conducted, the victim could not
identify the petitioner as one of the assailants. The effect of other evidence collected is
subject matter of trial and needless to say that the evidence prima facie may be sufficient
to launch prosecution or frame charges but for the purpose of bail, a doubt is created
firstly by not conducting test identification parade during investigation and secondly, the
victim could not identify the petitioner in TIP. All this atleast would not justify pre-trial
incarceration subject to the compliance of terms and conditions mentioned in this order.
Although the petitioner has massive criminal history, but given the quality of evidence
and victim's not identifying the petitioner in TIP, in the opinion of this Court, even the
criminal antecedents would not be a ground to continue pre-trial incarceration.
9. The petitioner's bail shall not be treated as a precedent for granting bail to the
other co-accused with a higher role.
10. Without commenting on the case's merits, in the facts and circumstances peculiar
to this case, and for the reasons mentioned above, the petitioner makes a case for bail.
This order shall come into force from the time it is uploaded on this Court's official
webpage.
11. Given above, provided the petitioner is not required in any other case, the
petitioner shall be released on bail in the FIR captioned above subject to furnishing bonds
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to the satisfaction of the concerned Court and due to unavailability before any nearest
Ilaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned Court must
be satisfied that if the accused fails to appear, such surety can produce the accused.
12. While furnishing a personal bond, the petitioner shall mention the
following personal identification details:
1. AADHAR number
2. Passport number (If available) and when the
attesting officer/court considers it appropriate or
considers the accused a flight risk.
3. Mobile number (If available)
4. E-Mail id (If available)
13. This order is subject to the petitioner's complying with the following terms.
14. The petitioner shall abide by all statutory bond conditions and appear before the
concerned Court(s) on all dates. The petitioner shall not tamper with the evidence,
influence, browbeat, pressurize, induce, threaten, or promise, directly or indirectly, any
witnesses, Police officials, or any other person acquainted with the facts and
circumstances of the case or dissuade them from disclosing such facts to the Police or the
Court.
15. Given the nature of the allegations and the other circumstances peculiar to this
case, the petitioner shall not enter the property, workplace, and residence of the victim
until the statements of all non-official and informal witnesses in the trial are recorded.
This Court is imposing this condition to rule out any attempt by the accused to
incapacitate, influence, or cause any discomfort to the victim. Reference be made to
Vikram Singh v Central Bureau of Investigation, 2018 All SCR (Crl.) 458); and Aparna
Bhatt v. The State of Madhya Pradesh, 2021:INSC:192, 2021 SCC Online SC 230.
16. Given the background of allegations against the petitioner, it becomes paramount
to protect the victim, and their family members, as well as the members of society, and
incapacitating the accused would be one of the primary options until the filing of the
closure report or discharge, or acquittal. Consequently, it would be appropriate to restrict
the possession of firearm(s). [This restriction is being imposed based on the
preponderance of evidence of probability and not of evidence of certainty, i.e., beyond
reasonable doubt; and as such, it is not to be construed as an intermediate sanction].
Given the nature of the allegations and the other circumstances peculiar to this case, the
petitioner shall surrender all weapons, firearms, and ammunition, if any, along with the
arms license to the concerned authority within fifteen days from release from prison and
inform the Investigator about the compliance. However, subject to the Indian Arms Act,
1959, the petitioner shall be entitled to renew and take it back in case of acquittal in this
case, provided otherwise permissible in the concerned rules. Restricting firearms would
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instill confidence in the victim(s), their families, and society; it would also restrain the
accused from influencing the witnesses and repeating the offense.
17. The conditions mentioned above imposed by this court are to endeavor to reform
and ensure the accused does not repeat the offense. In Mohammed Zubair v. State of NCT
of Delhi, 2022:INSC:735 [Para 28], Writ Petition (Criminal) No 279 of 2022, Para 29,
decided on July 20, 2022, A Three-Judge bench of Hon'ble Supreme Court holds that
"The bail conditions imposed by the Court must not only have a nexus to the purpose that
they seek to serve but must also be proportional to the purpose of imposing them. The
courts, while imposing bail conditions must balance the liberty of the accused and the
necessity of a fair trial. While doing so, conditions that would result in the deprivation of
rights and liberties must be eschewed."
18. It is clarified that if the petitioner violates any bail condition, the State and/or the
victim may file an application for bail cancellation before the trial court, which shall be
competent to cancel the bail or add more conditions. Furthermore, if the petitioner moves
for deletion or dilution of any bail conditions, the trial court is empowered to do so.
19. This bail is conditional, and the foundational condition is that if the petitioner
indulges in any non-bailable offense, the State shall file an application for cancellation
of this bail before the Sessions Court, which shall have the liberty to cancel this bail.
20. Any observation made hereinabove is neither an expression of opinion on the
case's merits nor shall the trial Court advert to these comments.
21. A certified copy of this order would not be needed for furnishing bonds, and any
Advocate for the Petitioner can download this order along with case status from the
official web page of this Court and attest it to be a true copy. If the attesting officer wants
to verify its authenticity, such an officer can also verify its authenticity and may
download and use the downloaded copy for attesting bonds.
22. Petition allowed in terms mentioned above. All pending applications, if any,
stand disposed of.
(ANOOP CHITKARA)
JUDGE
29.01.2025
Jyoti Sharma
Whether speaking/reasoned: Yes
Whether reportable: No.
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