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Himachal Pradesh High Court · body

2013 DIGILAW 1065 (HP)

SUNIL KUMAR v. STATE OF HIMACHAL PRADESH

2013-12-31

SANJAY KAROL

body2013
JUDGEMENT 1. PETITIONER Sunil Kumar (hereinafter referred to as the accused) stands arrested, in connection with FIR No.332 of 2011, dated 12.11.2011, registered at Police Station, Rampur, District Shimla, Himachal Pradesh, under the provisions of Sections 302, 406, 411, 120B of the Indian Penal Code. 2. RECORD produced by ASI Shri Jagat Singh Negi, Police Station, Rampur, District Shimla, Himachal Pradesh and status report perused. It is not in dispute that accused -petitioner's co - accused Som Lal stands released on bail by this Court on 25.2.2013, only for the reason that he was behind bars for Whether reporters of the local papers may be allowed to see the judgment? more than a year and large number of witnesses were required to be examined in Court. 3. MR. Rajiv Rai, learned counsel for the petitioner, seeking parity, has referred to and relied upon the decision of Hon'ble the Supreme Court of India in Avtar Singh versus State of Punjab, (2010) 15 SCC 529. According to him since co -accused stands released on bail, petitioner also deserves same treatment. 4. AT this juncture, it would be appropriate to re - produce the judgment rendered by the apex Court in Avtar Singh (supra) in toto. It reads as under: "1. This matter has come up after notice. Leave granted. 2. Having heard the learned counsel for the appellant as well as the State, and having looked into the order of the learned Sessions Judge refusing bail to the appellant herein, which was later confirmed by the High Court (Avtar Singh v. State of Punjab, CRM -M No.25017 of 2008, order dated 30 -9 -2008), and granted bail, we allow the appeal and direct that the appellant be also released on bail to the satisfaction of the trial court." The judgment delivered is on the given facts and cannot be said to be a binding precedent. It is no doubt true that this Court on 25.2.2013 granted bail to the co -accused in Cr.M.P.(M) No.60 of 2013 titled as Som Lal Versus State of Himachal Pradesh. The said decision also does not lay down any proposition of law to be a binding precedent. The same judgment is reproduced in toto: - "The petitioner is in custody in case FIR No.332/2011 dated 12.11.2011, under Sections 302, 406 and 120-B I.P.C., Police Station Rampur Bushahr, District Shimla, H.P., since 30.1.2012. The said decision also does not lay down any proposition of law to be a binding precedent. The same judgment is reproduced in toto: - "The petitioner is in custody in case FIR No.332/2011 dated 12.11.2011, under Sections 302, 406 and 120-B I.P.C., Police Station Rampur Bushahr, District Shimla, H.P., since 30.1.2012. The case was registered on 12.11.2011 and thereafter, the petitioner was arrested. The trial of the case has already commenced and out of total 69 witnesses, about 10 witnesses have been examined and, therefore, the trial of the case, which is fixed rt for 20.3.2013, is likely to take time. The petitioner is already in custody for more than ou a year and keeping in view the above facts, the petition for bail filed by the petitioner deserves to be allowed accordingly. 2. In view of the above discussion, the petitioner shall be released on bail by the learned trial Court on his furnishing a personal bond in the sum of Rs. 50,000/ - with one surety in the like amount to the satisfaction of the learned trial Court. The application stands allowed accordingly. 5. 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 punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing 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. 6. 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. Siddharam Satlingappa The APEX Court in Mhetre Versus State of Maharashtra and others, (2011) 1 SCC 694 , 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 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) 7. IN the instant case, prosecution heavily relies upon the material collected during investigation, showing direct complicity of the present accused, in relation to the alleged crime. Unlike co -accused Som Lal, who stands enlarged on bail, allegedly the present petitioner has played a major role in the crime. Allegedly deceased Chet Ram was murdered by this accused. Tractor of the deceased was sold off by driver Sunil @ Kala. Investigation revealed that the present accused made the deceased sit in his car, coaxed him to get drunk and thereafter, after murdering him threw the dead body in the jungle. Since direct role is ascribed to the petitioner -accused, his case cannot be considered as similar to that of Som Lal. 8. THAT apart, trial is in progress and large number of witnesses already stands examined. Accused is involved in a heinous crime. He hails from district Una and trial is going on at Rampur, District Shimla. Prosecution has expressed apprehension of the accused intimidating and threatening the witnesses. Hence, 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. 9. TAKING all the aforesaid facts into consideration, without expressing any opinion on merits, the present petition is dismissed. 10. 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.