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2015 DIGILAW 55 (HP)

Gopal Dutt v. State of Himachal Pradesh

2015-01-09

TARLOK SINGH CHAUHAN

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Judgment Tarlok Singh Chauhan J. (Oral). The petitioners have sought bail in FIR No. 148 of 2014, dated 14.8.2014 registered at Police Station Boileaugaj, District Shimla, under Sections 302, 145, 147, 148, 201 read with Section 34 IPC. 2. The respondent has placed on record status report and has also produced the records of the investigation. 3. The prosecution version appears to be that Smt. Chandu Devi an employee of General Post Office is residing in Shimla along with her younger son Sh.Joginder Kashyap. Her elder son Sh. Mohinder Singh was residing with his grant father Sh. Shobh Ram and aunt Smt. Basanti Devi at village Kajail. The complainant received telephonic call from one Sh.Mohinder Lal on 30.7.2014 that her son Mohinder Singh is under the influence of liquor and pelting stones to the villagers. 4. On this, the complainant rang up Sh.Shobh Ram and asked him to take care of Mohinder Singh. The whereabouts of Mohinder Singh could not be traced, the missing report was lodged. A parna (a piece of cloth) and shoes were recovered on 14.8.2014. The dead body of deceased Mohinder Singh was recovered from Beont Khad. It was revealed that accused persons namely Manohar, Karam Chand, Jagdish, Shankar Lal, Umesh, Bishan and Surinder caused merciless beating resulting into death of Mohinder Singh. Thereafter the accused persons had thrown his dead body to the revulient. 5. On the written complaint, FIR was jotted down and investigating agency swung into action. During investigation, site plan of the place of occurrence was also prepared. It leads to various recoveries such as Danda, by which the dead body was tied, recovery of various articles such as clothes to be borne by the accused persons at the relevant point of time and all the dandas, to be used as an incriminating weapon of offence, iron road, mobile etc. were taken into possession. The earth sampled was picked up. The postmortem examination was conducted. Statements of Pankaj Sharma, Chaman Lal, Umesh, Manohar Lal were got recorded under Section 164 Cr.P.C. The Viscera was sent for chemical analysis. Photographs were clicked and the accused persons were arrested. I have heard the learned counsel for the parties and gone through the records of investigation. 6. The earth sampled was picked up. The postmortem examination was conducted. Statements of Pankaj Sharma, Chaman Lal, Umesh, Manohar Lal were got recorded under Section 164 Cr.P.C. The Viscera was sent for chemical analysis. Photographs were clicked and the accused persons were arrested. I have heard the learned counsel for the parties and gone through the records of investigation. 6. Learned Additional Advocate General vehemently argued that the role of the petitioners is in no manner different from that of the other co-accused and, therefore, they should not be ordered to be released on bail. I am afraid that this submission is contrary to what has been stated not only in the status report filed before this Court, but is also contrary to the chargesheet filed before the competent Court. 7. It appear from the records that though in the FIR no different role has been attributed to the petitioners and other co-accused, but in charge sheet, the prosecution has sought framing of charges under Sections 302, 147, 148, 149, 201 IPC against the other co-accused, but in so far as the petitioners are concerned, they have only been accused of offences under Sections 201 and 120B IPC. Therefore, in these circumstances, the role of the present petitioners cannot be equated with that of the other co-accused, who has been charged for commission of a heinous offence under Section 302 IPC. 8. The object of granting of bail is only to secure appearance of the accused persons at the time of trial by reasonable amount of bail. The object of bail is neither punitive nor preventive. 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. This was so observed by the Hon’ble Supreme Court in Sanjay Chandra Vs. Central Bureau of Investigation (2012) 1 SCC 40 and it shall be apt to reproduce herein below paragraphs 21,22,23 and 40, which reads as follows:- “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. 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 unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `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. 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 unconvicted 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. 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 present is required.” 9. On the basis of records, it cannot be said that the petitioners would in any manner impead the course and cause of justice. The petitioners otherwise are permanent residents of District Shimla and are presumed to be having roots in the society and therefore, there is hardly any possibility of their fleeing from justice. Even otherwise stringent condition for securing their presence at the time of trial can always be imposed. 10. Accordingly, the present petitions are allowed and the petitioners are ordered to be released on bail in FIR No. 148 of 2009, registered under Sections 302, 145, 147, 148, 149 and 201 at Police Station, Boileauganj, Shimla, H.P. on his furnishing personal bonds in the sum of Rs.25,000/- each with one surety of the like amount each to the satisfaction of Judicial Magistrate Ist Class, Shimla, District Shimla, H.P. with the following conditions:- (i) That the petitioners shall 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 from disclosing such facts to the Court or to any police officer; (ii) that the petitioners shall not tamper with the prosecution evidence or threaten the witnesses; (iii) that the petitioners shall make himself available for interrogation by the police officer as and when required; (iv) that the petitioners shall not misuse his liberty in any manner. Learned Judicial Magistrate Ist Class, Shimla is directed to comply with the directions issued by the High Court, vide communication No. HHC/VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013. 9. Learned Judicial Magistrate Ist Class, Shimla is directed to comply with the directions issued by the High Court, vide communication No. HHC/VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013. 9. It is made clear that the observations made in this order are solely for the purpose of deciding the present bail application and shall not be read or referred to at the time of trial or at any later stage.