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2013 DIGILAW 1064 (HP)

Shashi Mehta v. STATE OF HIMACHAL PRADESH

2013-12-30

SANJAY KAROL

body2013
JUDGEMENT SANJAY KAROL, J. - 1. PETITONER Shashi Mehta (hereinafter referred to as the accused) stands arrested, in connection with FIR No.202 of 2013, dated 7.12.2013, registered at Police Station, Dhalli, District Shimla, Himachal Pradesh, under the provisions of Sections 324 and 307 of the Indian Penal Code. 2. INITIALLY, FIR was registered under the provisions of Section 324 of the Indian Penal Code and vide order dated 10.12.2013 passed in CRMP(M) No.11851 of 2013, this Court granted interim bail to the accused, under the provisions of Section 438 of the Code of Criminal Procedure. When the accused was arrested for having committed offence, punishable under the provisions of Section 307 of the Indian Penal Code, the said petition (CRMP(M) No.11851 of 2013) was dismissed as having become infructuous, vide order dated 17.12.2013. Accused has now filed the instant petition, for grant of regular bail, under the provisions of Section 439 of the Code of Criminal Procedure. 3. RECORD produced by ASI Shri Prem Lal, Police Station, Dhalli, District Shimla, Himachal Pradesh and the status report perused. 4. ACCORDING to the prosecution, on 6.12.2013 at 9.30 p.m., complainant Dinesh Kumar, Pramod and Nishu went to the house of Nitin Chauhan (injured) at Sanjauli (Shimla). There, in addition to Nitin, three other boys, one of whom is present accused Shashi Mehta were having drinks (alcohol). Soon two boys left the place and all present there started having drinks. Certain arguments took place between Nitin and the accused. At that, accused tried to hit Nitin with a bottle but complainant Dinesh Kumar got the matter patched up. Thereafter, both Nitin and accused Shashi went to the adjoining room. Soon Nitin came back holding his stomach with his hand, from where blood was oozing. Nitin informed that accused Shashi had given a blow with a knife to him. Accused also came behind Nitin, holding a knife in his hand. Soon thereafter accused fled away from the spot and Dinesh brought Nitin for medical treatment to the hospital. In support of the petition, Mr. P.P. Chauhan, learned counsel, has argued that investigation is complete; accused is the only son; he is undertaking course of computers; no purpose would be served by keeping him with the hardened criminals; his studies would be seriously affected. In support of the petition, Mr. P.P. Chauhan, learned counsel, has argued that investigation is complete; accused is the only son; he is undertaking course of computers; no purpose would be served by keeping him with the hardened criminals; his studies would be seriously affected. Learned counsel has referred to and relied upon the Siddharam decisions rendered by the apex Court in Satlingappa Mhetre versus State of Maharashtra and others, (2011) 1 SCC 694 ; Jeet Ram versus State of H.P., Latest HLJ 2003 (HP) 23; and Sunil Kumar versus State of Himachal Pradesh, Latest HLJ 2003 (HP) 151. 5. RECORD reveals that petitioner is involved in another offence, under the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985. FIR No.18 of 2013, dated 14.2.2013 stands registered against the accused at Police Station, Dhalli, in that regard. Accused is on bail in connection with this case. 6. NO doubt, accused is a young boy of 21 years and pursuing his diploma in Computer, but then this fact alone cannot be a reason to release him on bail. Parents are not dependent upon the son. There are various factors, which have to be kept in mind, while considering application for release of the accused on regular bail. As per report of the Doctor, injury could have been fatal to life. Knife recovered from the spot is 8.5 inches long. The injury was inflicted in the abdomen, a vital part of the body. From the statement of Nitin, it is evidently clear that he was assaulted by the accused. Identity of the accused is, thus, not in dispute. Allegedly accused fled away from the spot after crime. 7. THE principle for grant of bail is now well settled. The normal rule is bail and not jail. But then, while granting bail, Court has to keep in mind the nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. 8. 8. THE Apex Court in Siddharam Satlingappa Mhetre (supra), while relying upon its decision rendered by its Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565 , laid down the following parameters for grant of pre -arrest bail: - "111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. 112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or the other offences. (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. (vii) The courts must evaluate the. entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. (vii) The courts must evaluate the. entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record. 114. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the Judge concerned, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. If a wise discretion is exercised by the Judge concerned, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the court of Sessions or the High Court is always available." (Emphasis supplied) Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another, (2010) 14 SCC 496 , has laid down the following principles to be kept in mind, while deciding petition for bail: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. 9. IN Jeet Ram (supra), the Court showed indulgence in favour of the accused, by granting bail, in the given facts and circumstances, for the reason that prosecution story itself was found to be not inspiring in confidence. Role ascribed to the petitioner therein, was that he caught hold of the deceased and his co -accused pelted stones at the deceased. The court, in the absence of any injuries on the body of the petitioner, found this version to be highly improbable, as the stones would have positively hit the petitioner and thus caused injury to him. Sunil Kumar (supra) was also delivered in the 10. GIVEN facts and does not lay down any proposition of law. When the aforesaid settled position of law is applied to the factual matrix of the instant case, I am of the considered view that it would not be in the interest of justice to grant bail. 11. TAKING all the aforesaid facts into consideration, without expressing any opinion on the merits, the present petition is dismissed. 12. When the aforesaid settled position of law is applied to the factual matrix of the instant case, I am of the considered view that it would not be in the interest of justice to grant bail. 11. TAKING all the aforesaid facts into consideration, without expressing any opinion on the merits, the present petition is dismissed. 12. ANY observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above. Petition stands disposed of.