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2014 DIGILAW 1321 (HP)

Pyara Singh v. State of Himachal Pradesh

2014-09-23

TARLOK SINGH CHAUHAN

body2014
JUDGMENT : - Tarlok Singh Chauhan J. The petitioners have approached this Court for grant of bail in respect of FIR No. 213 of 2014, dated 6.6.2014 registered at Police Station Paonta Sahib, District Sirmour under Section 304/34 I.P.C. 2. Notice of the petitions was given to the State. Today the Additional Advocate General has filed the status report and also produced the records of the investigation. Mr. Virender Kumar Verma, learned Additional Advocate General has strenuously argued that the accused Pyara Singh is a habitual offender, against whom three cases have already been registered on different occasions and taking into consideration his criminal history, he should not be enlarged on bail. In so far as the other co-petitioners are concerned, it has been claimed that despite being fully aware of the fact that the deceased Inder Pal Singh was a heart patient, yet they not only physically assaulted him, but created an atmosphere, full of threat and fear, resulting in his death due to heart attack. 3. The prosecution case in brief is that on 6.6.2014 police received information from 108 Ambulance service that an injured has been taken to Civil Hospital, Paonta Sahib, who had been beaten up. As such, the police visited Civil Hospital, Paonta Sahib, where Gurinder Pal Singh gave statement under Section 154 Cr.P.C. to ASP (P), IPS, Sh.Rohit Malpani, wherein he stated that he was a transporter and having two brothers. Inder Pal Singh was the eldest while Harpreet Singh was the younger brother. His brother Inder Pal Singh was a heart patient for the last one and half years and was under treatment at Patiala and Mulana M.M. Hospital. He was having a truck Tata 407 No. H.P-63-4108. His brother Harpreet Singh had gone to Truck Union, Taruwala for collecting money. His elder brother Inder Pal Singh had to take Rs.10,000/- from Pyara Singh and his sons. On 6.6.2014 his brother Harpreet Singh called Inder Pal Singh in the office of the Union for settling the accounts and accordingly he along with Inder Pal Singh visited the office of Truck Union, Taruwala on their motorcycle. At about 1 O’clock Pyara Singh and his both sons started hurling abuses to Inder Pal Singh and the accused Avtar Singh alias Goldy tried to inflict a blow upon Inder Pal Singh. At about 1 O’clock Pyara Singh and his both sons started hurling abuses to Inder Pal Singh and the accused Avtar Singh alias Goldy tried to inflict a blow upon Inder Pal Singh. He told the accused not to hit his brother Inder Pal Singh and specifically informed them that he was a heart patient and therefore, no force should be used against him, but the accused persons paid no heed to this and started giving beatings to Inder Pal Singh with fist blows, who fell down on the floor and become unconscious. Virender, Bachiter and his younger brother Harpreet Singh tried to give some water to Inder Pal Singh, but he did not respond and was immediately taken to hospital, while the accused ran away from the spot. The Medical Officer declared Inder Pal Singh dead and as such, this case came to be registered against the accused under Section 304/34 I.P.C. 4. Sh.Ramakant Sharma, learned counsel for the petitioners strenuously argued that the provisions of Section 304 I.P.C. would not attract to the facts of the present case, especially when the deceased admittedly died of myocardial infarction and not because of the beatings given by the accused. Further stated that taking the prosecution story as it is, it cannot be said that the petitioners had committed injuries to kill the deceased, in fact the petitioners had not even inflicted any injury on the person of the deceased, which is further corroborated by the medical evidence. He would also contend that no recoveries are required to be effected and the petitioners are unnecessarily languishing in the jail since 6.6.2014. He would also contend that the bail is the rule while jail is the exception and would further place reliance on the judgment of this Court in Govind Sagar Vs. State of H.P. 2014 (2) Him.L.R., 1127, wherein this Court has held as under:- “5. What probably has been over-looked by Mr. Verma is the fact that the object of bail is only to secure the appearance of the accused person at the time of trial by granting reasonable amount of bail. Therefore, the object of bail is neither punitive nor preventative. At this stage deprivation of liberty will have to be considered a punishment, unless of course, the presence of the accused person cannot be secured. Therefore, the object of bail is neither punitive nor preventative. At this stage deprivation of liberty will have to be considered a punishment, unless of course, the presence of the accused person cannot be secured. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Even otherwise, the law with regard to bail is now well settled. As early as in the year 1978, the Hon’ble Supreme Court in Gurcharan Singh vs. State (Delhi Administration) (1978) 1 SCC 118 laid the following criteria for grant of bail: "22. In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail subject to sub section (3) of Section 437 CrPC if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437(1) CrPC and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence.****** 24. Section 439(1) CrPC of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437(1) there is no ban imposed under Section 439(1), CrPC against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. Unlike under Section 437(1) there is no ban imposed under Section 439(1), CrPC against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1) CrPC of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437(1) and Section 439(1) CrPC of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out." 6. The Hon’ble Apex Court in Prasanta Kumar Sarkar versus Ashish 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) ikelihood 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. 7. 7. Thereafter, in a detailed judgment, the Hon’ble Supreme Court in Siddharam Satlingappa 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) 8. In Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40 , the Hon’ble Supreme Court made the following pertinent observations in paras 21, 22, 23, and 40 as under:- “21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. 22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, Rs.necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. 23. 23. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. 40. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.” 5. On the other hand, learned Additional Advocate General has seriously opposed this application by contending that it was on account of the beatings and the threat perception created by the bail petitioners that the deceased died of myocardial infarction. He further contended that the learned Sessions Judge, Sirmour had vide a detailed order running into 14 pages rejected the bail application and since there was no changed circumstances, the petitioners could not be permitted to file successive bail applications and for this purpose relied upon the following observations of Hon’ble Supreme Court in State of Maharashtra Vs. Captain Buddhikota Subha Rao, AIR 1989 SC 2299 : “7. Liberty occupies a place of pride in our socio-political order. And who knew the value of liberty more than the founding fathers of our Constitution whose liberty was curtailed time and again under Draconian laws by the colonial rules. That is why they provided in Article 21 of the Constitution that no person shall be deprived of his personal liberty except according the procedure established by law. And who knew the value of liberty more than the founding fathers of our Constitution whose liberty was curtailed time and again under Draconian laws by the colonial rules. That is why they provided in Article 21 of the Constitution that no person shall be deprived of his personal liberty except according the procedure established by law. It follows therefore that the personal liberty of an individual can be curbed by procedure established by law. The Code of Criminal Procedure, 1973, is one such procedural law. That law permits curtailment of liberty of anti-social and anti-national elements. Article 22 casts certain obligations on the authorities in the event of arrest of an individual accused of the commission of a crime against society or the Nation. In cases of undertrials charged with the commission of an offence the court is generally called upon to decide whether to release him on bail or to commit him to jail. This decision has to be made, mainly in non-bailable cases, having regard to the nature of the crime, the circumstances in which it was committed, the background of the accused, the possibility of his jumping bail, the impact that his release may make on the prosecution witnesses, its impact on society and the possibility of retribution, etc. In the present case the successive bail applications preferred by the respondent were rejected on merits having regard to the gravity of the offence alleged to have been committed. One such application No. 36 of 1989 was rejected by Suresj, J. himself. Undeterred the respondent went on preferring successive applications for bail. All such pending bail-applications were rejected by Puranik, J. by a common order on 6th June, 1989. Unfortunately, Puranik, J. was not aware of the pendency of yet another bail application No. 995/89 otherwise he would have disposed if of by the very same common Order. Before the ink was dry on Puranik, J.’s order, it was upturned by the impugned order. It is not as if the court passing the impugned order was not aware of the decision of Puranik, J.; in fact there is a reference to the same in the impugned order. Could this be done in the absence of new facts and changed circumstances? It is not as if the court passing the impugned order was not aware of the decision of Puranik, J.; in fact there is a reference to the same in the impugned order. Could this be done in the absence of new facts and changed circumstances? What is important to realize is that in Criminal Application No. 375 of 1989, the respondent had made an identical request as is obvious from one of the prayers (extracted earlier) made therein. Once that application was rejected there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact-situation. And, when we speak of change, we mean a substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. Between the two orders there was a gap of only two days and it is nobody’s case that during these two days drastic changes had taken place necessitating the release of the respondent on bail. Judicial discipline, propriety and comity demanded that the impugned order should not have been passed reversing all earlier orders including the one rendered by Puranik, J. only a couple of days before, in the absence of any substantial change in the fact-situation. In such cases it is necessary to act with restraint and circumspection so that the process of the Court is not abused by a litigant and an impression does not gain ground that the litigant has either successfully avoided one judge or selected another to secure an order which had hitherto eluded him. IN such a situation the proper course, we think, is to direct that the matter be placed before the same learned judge who disposed of the earlier applications. Such a practice or convention would prevent abuse of the process of court inasmuch as it will prevent an impression being created that a litigant is avoiding or selecting a court to secure an order to his liking. Such a practice would also discourage the filing of successive bail applications without change of circumstances. Such a practice if adopted would be conducive to judicial discipline and would also save the Court’s time as a judge familiar with the facts would be able to dispose of the subsequent application with dispatch. It will also result in consistency. Such a practice would also discourage the filing of successive bail applications without change of circumstances. Such a practice if adopted would be conducive to judicial discipline and would also save the Court’s time as a judge familiar with the facts would be able to dispose of the subsequent application with dispatch. It will also result in consistency. In this view that we take we are forfitied by the observations of this Court in paragraph 5 of the judgment in Shahzad Hasan Khan V. Ishtiaq Hasan Khan, (1987)2 SCC 684 : ( AIR 1987 SC 1613 ). For the above reasons we are of the view that there was no justification for passing the impugned order in the absence of a substantial change in the fact-situation. That is what prompted Shetty. J. to describe the impugned order as ‘a bit out of the ordinary’. Judicial restraint demands that we say no more.” On the same preposition he placed reliance on the following observations of Hon’ble Supreme Court in Kalyan Chandra Sarkar Vs. Rajesh Ranjan alias Pappu Yadav and another, AIR 2004 SC 1866 : “14. We have already noticed from the arguments of learned counsel for the appellant that the present accused had earlier made seven applications for grant of bail which were rejected by the High Court and some such rejections have been affirmed by this Court also. It is seen from the records when the seventh application for grant of bail was allowed by the High Court, the same was challenged before this Court and this Court accepted the said challenge by allowing the appeal filed by the Union of India and another and cancelled the bail granted by the High Court as per the order of this Court made in Criminal Appeal No. 745/2001 dated 25th July, 2001. While cancelling the said bail this Court specifically held that the fact that the present accused was in custody for more than one year (at that time) and the further fact that while rejecting an earlier application, the High Court had given liberty to renew the bail application in future, were not grounds envisaged under Section 437(1)(1) of the Code. This Court also in specific terms held that condition laid down under Section 437(1)(1) is sine qua non for granting bail even under Section 439 of the Code. This Court also in specific terms held that condition laid down under Section 437(1)(1) is sine qua non for granting bail even under Section 439 of the Code. In the impugned order it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail. 20. Before concluding, we must note though an accused has a right to make successive applications for grant of bail the Court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the Court also has a duty to record what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications. IN the impugned order we do not see any such fresh ground recorded by the High Court while granting bail. It also failed to take into consideration that at least on four occasions order refusing bail has been affirmed by this Court and subsequently when the High Court did not grant bail, this Court by its order dated 26th July, 2000 cancelled the said bail by a reasoned order. From the impugned order, we do not notice any indication of the fact that the High Court took note of the grounds which persuaded this Court to cancel the bail. From the impugned order, we do not notice any indication of the fact that the High Court took note of the grounds which persuaded this Court to cancel the bail. Such approach of the High Court, in our opinion, is violative of the principle of binding nature of judgments of superior Court rendered in a lis between the same parties, and in effect tends to ignore and thereby render ineffective the principles enunciated therein which have a binding character. 21. For the reason stated above, we are of the considered opinion that the High Court was not justified in granting bail to the first respondent on the ground that he has been in custody for a period of 3½ years or that there is no likelihood of the trial being concluded in the near future, without taking into consideration the other factors referred to hereinabove in this judgment of ours.” 6. I have given my deep and thoughtful consideration to the arguments raised by the respective parties. 7. The following factors are required to be considered before granting bail: (i) nature of accusation and severity of punishment in case of conviction and nature of supporting evidence; (ii) reasonable apprehension of tampering of the witnesses or apprehension of threat to the complainant; (iii) and prima facie satisfaction of the court in support of the charge. Any order dehors of such reasons suffers from non-application of mind. 8. Now, in case the nature of accusation is seen, it cannot be denied that the bail petitioners have been charged under Section 304/34 IPC, which is a grave offence punishable with life imprisonment. Moreover, the records of the investigation and past history and conduct of the petitioners, particularly of Avtar Singh does not convince this Court that in the event of release of the petitioners on bail, they would not violate the conditions of bail and it cannot be said with certainty that they will not tamper with the evidence or threaten or dissuade the prosecution witnesses and at this stage the records of the investigation further reveal that there is sufficient material available in support of the charge against the bail petitioners. 9. Mr. 9. Mr. Ramakant Sharma, learned counsel for the bail petitioners would then strenuously argued that no recovery is required to be effected since the investigation is complete and no fruitful purpose would be served in case the petitioners are kept in judicial lockup, as they are languishing there for the last more than three months. I am afraid that looking into the seriousness of the allegations against the bail-petitioners, they cannot be enlarged on bail even on this ground. 10. For the aforesaid reasons, I find no merit in these bail petitions and the same are accordingly dismissed. However, it is made clear that the observations made in this order are solely for the purpose of deciding these petitions and nothing contained in this order shall be construed as an expression of opinion on any of the issues of facts or law arising for the decision in the main case. The learned trial Court shall decide the case uninfluenced by any observations made in this order. Petitions stand disposed of.