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2014 DIGILAW 376 (HP)

Munish Kumar v. State of H. P.

2014-04-10

SANJAY KAROL

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Judgment Sanjay Karol, J. Sub Inspector Shri Gian Chand Chauhan, R & T, Shimla is present alongwith the record. Record perused and returned, status report taken on record. 2. Accused-petitioner Munish Kumar was taken into custody on 14.8.2013, in connection with FIR No.4/2013, dated 6.7.2013, under the provisions of Section 395 of the Indian Penal Code, registered at Police Station, General Railway Police, Kangra. 3. As per the case set up by the police, accused alongwith five other persons boarded the train somewhere between Pathankot and Paprola. Thereafter, they threatened the passengers inside the train and committed dacoity, after switching off the light of the compartment. The alleged offence took place on 4.7.2013 at about 10.30 p.m. Complainant Nishant Bhardwaj allegedly had not named the accused-petitioner Munish Kumar in the FIR, though during the course of investigation, accused was arrested, in connection with the same. Record reveals that he was sent to judicial custody till 24.8.2013, since when he is still behind bars. 4. Present bail petition is opposed on the ground that the accused-petitioner, alongwith his co-accused, committed dacoity and as such cannot be enlarged on bail. It is neither desirable nor in public interest to enlarge him on bail. 5. Record reveals that investigation is complete and challan stands presented in Court. Investigation further reveals that the main accused is, in fact, co-accused Ajay Kumar, against whom two previous FIRs stand registered at Police Station, Bhawarna and GRP, Pathankot. 6. According to the petitioner, he is innocent and has been falsely implicated. He, Ajay Kumar and other accused persons work together at the same place at Baddi (H.P.). He was coming home on a holiday and travelling with his colleagues in the train. He is resident of District Kangra. At that time all the accused persons were coming home from Baddi. 7. Be that as it may, fact of the matter is that petitioner is behind bars for the more than 7 months. His conduct throughout has been good. Other than the crime in question, there is nothing adverse against him. Except for the instant case, there is no other case registered against him. No further recovery is to be effected from him. His release from the custody, in no manner, at this juncture, can be said to be fatal to the prosecution case. Other than the crime in question, there is nothing adverse against him. Except for the instant case, there is no other case registered against him. No further recovery is to be effected from him. His release from the custody, in no manner, at this juncture, can be said to be fatal to the prosecution case. Prosecution cannot be said to be prejudiced at all with the release of the present petitioner. 8. From the record, apart from physical presence of the accused-petitioner in the train, there is nothing to establish his involvement with Ajay Kumar, the main accused in the crime. Though this fact is to be considered during trial. 9. Law with regard to grant of bail is now well settled. The Apex 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. 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. 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. 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. 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) 10. The view stands reiterated by the apex Court in Sanjay Chandra versus Central Bureau of Investigation, (2012) 1 SCC 40 . 11. 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. 12. Having holistically considered the nature of offence and the relevant attending circumstances in favour of the petitioner-accused, and also in view of the law discussed, herein above, I feel that it is a fit case in which petitioner should be enlarged on bail. 12. Having holistically considered the nature of offence and the relevant attending circumstances in favour of the petitioner-accused, and also in view of the law discussed, herein above, I feel that it is a fit case in which petitioner should be enlarged on bail. 13. As such, petitioner-accused Munish Kumar is ordered to be released on bail on his furnishing personal bond in the sum of Rs.50,000/- (rupees fifty thousand) with one surety in the like amount to the satisfaction of Chief Judicial Magistrate, Kangra at Dharamshala. It is clarified that petitioner shall not tamper with the prosecution evidence, flee away from the jurisdiction of this Court, try to influence the witnesses or in any manner act and conduct himself so as to disentitle himself from the discretionary power. Also, he shall always make himself available during trial. Learned Chief Judicial Magistrate is directed to comply with the directions issued by the High Court, vide letter No. HHCVIG/ Misc. Instructions/93-IV-7139, dated 18.3.2013. 14. 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. Application stands disposed of.