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Himachal Pradesh High Court · body

2014 DIGILAW 1705 (HP)

Kulwinder Kumar alias Billa son of Shri Paramjit Pal v. State of H. P.

2014-11-21

P.S.RANA

body2014
JUDGMENT : P.S. Rana, J. Present bail application is filed under Section 439 of the Code of Criminal Procedure 1973 for grant of bail in connection with case FIR No. 82 of 2014 dated 3.4.2014 registered under Sections 392 read with Section 34 IPC and Section 25-54-59 of the Arms Act in Police Station Una District Una (H.P.). 2. It is pleaded that applicant has been falsely implicated in present case. It is pleaded that investigation is complete and challan is also filed in the Court. It is further pleaded that applicant undertakes to abide by all terms and conditions imposed by the Court. Prayer for acceptance of bail application filed under Section 439 Cr.P.C. is sought. 3. Per contra police report filed. As per police report, FIR No. 82 of 2014 dated 3.4.2014 registered under Sections 392 read with Section 34 IPC and Section 25-54-59 of the Arms Act in Police Station Una District Una (H.P.) against the applicant. There is recital in police report that on dated 3.4.2014 at about 6.30 PM complainant Kishan Pal and his father went to see the wheat field upon Pulsar motor cycle having registration No. HP-36A-3101. There is recital in police report that father of complainant went into the field of wheat and complainant namely Kishan Pal remained sitting upon the motor cycle. There is further recital in police report that two persons came upon another Pulsar motor cycle of black colour. There is further recital in police report that thereafter driver of motor cycle boarded down from the motor cycle and pillion rider kept the motor cycle in a motion. There is further recital in police report that thereafter the person who boarded down from the motor cycle placed pistol upon the ears of complainant namely Kishan Pal and told the complainant namely Kishan Pal to board down from the motor cycle No. HP-36-A3101 otherwise he would kill him. There is further recital in police report that thereafter motor cycle No. HP-36-A3101 which was in possession of complainant was snatched and thereafter both accused persons went towards Ghaluwal side. There is further recital in police report that complainant Kishan Pal had purchased the motor cycle No. HP-36-A3101 from Surender after paying sale consideration amount. There is further recital in police report that criminal case was registered and investigation was conducted by Ex-Inspector/SHO Krishan Lal. There is further recital in police report that complainant Kishan Pal had purchased the motor cycle No. HP-36-A3101 from Surender after paying sale consideration amount. There is further recital in police report that criminal case was registered and investigation was conducted by Ex-Inspector/SHO Krishan Lal. There is further recital in police report that information was received through telephone that snatched motor cycle No.HP-36A-3101 and accused persons were detained at place Bankhandi. There is further recital in police report that motor cycle No. HP-36-A3101 and pistol 7.65 MM were recovered and were sealed. There is further recital in police report that accused persons informed that pistol was purchased from Saharanpur U.P. but no licence was produced. There is also recital in police report that accused persons refused for identification parade. There is further recital in police report that place of incident was located at the instance of accused persons. There is further recital in police report that co-accused Kulwinder told to Investigating Agency that his accomplice was Gurpreet Singh son of Satpal. There is also recital in police report that applicant is hardened criminal and is resident of Punjab and following cases have been registered against the applicant. (1) FIR No. 190/06 dated 10.11.2006 under Section 379 IPC P.S. Adampur Punjab. (2) FIR No.221/07 dated 18.10.2007 under Sections 382, 34 IPC P.S. Mahalpur District Hoshiarpur Punjab. (3) FIR No. 158/08 dated 3.7.2008 under Sections 332, 307, 186, 353, 34 IPC P.S. Sadar Hoshiarpur Punjab. (4) FIR No. 74/10 dated 9.6.2010 under Section 411 IPC P.S. Goraya Punjab. (5) FIR No. 45/11 dated 23.6.2011 under Sections 382, 34 IPC P.S. Haryana District Hoshiarpur Punjab (6) FIR No. 84/11 dated 10.8.2011 under Section 22-61-85 of ND&PS Act P.S. City Hoshiarpur Punjab. There is further recital in police report that on dated 18.4.2014 ASI Saravjit Singh P.S. Vilga District Jalandhar came to police station and told that accused persons Kulwinder and Gurpreet have committed dacoity during night period in the Filling Station situated at Tarwal road Noormahal and they have fired from pistol of 7.65 MM. There is further recital in police report that thereafter custody of accused persons was handed over to police officials posted at Jalandhar through production warrant qua FIR No. 24/2014 dated 2.4.2014 registered under Section 394 IPC. There is further recital in police report that cartridge and pistol were sent for chemical examination. There is further recital in police report that thereafter custody of accused persons was handed over to police officials posted at Jalandhar through production warrant qua FIR No. 24/2014 dated 2.4.2014 registered under Section 394 IPC. There is further recital in police report that cartridge and pistol were sent for chemical examination. There is further recital in police report that motor cycle No. PB-07AG-2067 used for commission of criminal offence has been taken into possession by Investigating Agency of P.S. Vilga District Jalandhar in FIR No. 24/2014. There is further recital in police report that challan has been filed in the Court of Judicial Magistrate Court No. 1 Una on dated 30.6.2014. There is further recital in police report that applicant Kulwinder Singh is in judicial custody. There is also recital in police report that applicant Kulwinder is resident of another State and is a hardened criminal and in Punjab different cases have been registered against the applicant. There is also recital in police report that if bail is granted to the applicant then applicant will conceal himself and will also threat the prosecution witnesses. Prayer for rejection of bail application is sought. 4. Court heard learned Advocate appearing on behalf of the applicant and learned Additional Advocate General appearing on behalf of the State and also perused the record. 5. Following points arise for determination in this bail application:- Point No. 1 Whether the bail application filed under Section 439 Cr.P.C. is liable to be accepted as mentioned in memorandum of grounds of bail application? Point No.2 Final Order. Findings on Point No.1 6. Submission of learned Advocate appearing on behalf of applicant that applicant is innocent and applicant did not commit any criminal offence cannot be decided at this stage. Same fact will be decided when the case shall be disposed of on merits after giving due opportunity to both the parties to lead evidence in support of their case. 7. Another submission of learned Advocate appearing on behalf of the applicant that investigation is complete in present case and challan has already been filed in the Court on dated 30.6.2014 and any condition imposed by Court upon the applicant will be binding upon applicant and on this ground bail application filed under Section 439 Cr.P.C. be allowed is accepted for the reasons hereinafter mentioned. At the time of granting bail following factors are considered. At the time of granting bail following factors are considered. (i) Nature and seriousness of offence (ii) The character of the evidence (iii) Circumstances which are peculiar to the accused (iv) Possibility of the presence of the accused at the trial or investigation (v) Reasonable apprehension of witnesses being tampered with (vi) The larger interests of the public or the State. See AIR 1978 SC 179 titled Gurcharan Singh and others Vs. State (Delhi Administration). Also see AIR 1962 SC 253 titled The State Vs. Captain Jagjit Singh. In present case investigation is complete and applicant is not required for any investigation purpose. Trial of the case will be completed in due course of time. It was held in case reported in 2012 Cri. L.J. 702 Apex Court DB 702, titled Sanjay Chandra vs. Central Bureau of Investigation that object of bail is to secure the appearance of the accused person at his trial. It was held that grant of bail is the rule and committal to jail is exceptional. It was held that refusal of bail is a restriction on personal liberty of individual guaranteed under Article 21 of the Constitution. It was further held that accused should not be kept in jail for an indefinite period. 8. In view of the fact that investigation has been completed in present case and in view of the fact that challan has been filed in present case and in view of the fact that trial will be concluded in due course of time it is held that it is not expedient in the ends of justice to keep the applicant in jail. It is further held that if applicant is released on bail at this stage then interest of State and general public will not be adversely affected in present case. 9. Submission of learned Additional Advocate General appearing on behalf of non-applicant that if bail is granted to applicant then applicant will induce, threat and influence the prosecution witnesses and on this ground bail application be declined is rejected being devoid of any force for the reasons hereinafter mentioned. Court is of the opinion that condition will be imposed in the bail order to the effect that applicant will not induce and threat the prosecution witnesses and another condition will also be imposed upon the applicant that applicant will attend the trial of the case refulgarly. Court is of the opinion that condition will be imposed in the bail order to the effect that applicant will not induce and threat the prosecution witnesses and another condition will also be imposed upon the applicant that applicant will attend the trial of the case refulgarly. Court is of the opinion that if applicant will flout the terms and conditions of bail order then non-applicant will be at liberty to file application for cancellation of bail strictly in accordance with law. 10. Another submission of learned Additional Advocate General appearing on behalf of the non-applicant that six criminal cases have been registered against the applicant as of today and bail application be declined is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that accused is presumed to be innocent till convicted by competent Court of law. There is no evidence on record in order to prove that applicant has been convicted by any criminal Court of law as of today in any of criminal cases. It is also well settled law that pendency of criminal cases is not a ground for declining the bail. As per law accused is presumed to be innocent till criminal charges are not proved against the accused in accordance with law. In view of above stated facts, point No.1 is answered in affirmative. Point No.2 Final Order 11. In view of my findings on point No.1 bail application filed by applicant under Section 439 Cr.P.C. is allowed and applicant is ordered to be released on bail subject to furnishing personal bond to the tune of Rs. 1 lac with two sureties in the like amount to the satisfaction of learned trial Court on following terms and conditions. (i) That the applicant will attend the proceedings of learned trial Court regularly till conclusion of trial in accordance with law. (ii) That applicant will not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to any police officer. (iii) That the applicant will not leave India without the prior permission of the Court. (iv) That applicant will not commit similar offence qua which he is accused. (v) That applicant will give his residential address in written manner to the Investigating Officer and Court. (iii) That the applicant will not leave India without the prior permission of the Court. (iv) That applicant will not commit similar offence qua which he is accused. (v) That applicant will give his residential address in written manner to the Investigating Officer and Court. Applicant be released only if not required in any other criminal case. Bail application filed under Section 439 Cr.P.C. stands disposed of. Observations made in this order will not effect the merits of case in any manner and will strictly confine for the disposal of this bail application filed under Section 439 of Code of Criminal Procedure 1973. All pending application(s) if any also disposed of.