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2017 DIGILAW 65 (HP)

Davinder Kumar v. State Of Himachal Pradesh

2017-01-13

SANJAY KAROL

body2017
JUDGMENT Sanjay Karol, J. —ASI Chaman Lal Negi of Police Station, Rampur (Police Post Nankhari), District Shimla, Himachal Pradesh, is present along with Record. Record perused and returned. 2. In relation to FIR No.222/2016, dated 20.11.2016, registered at Police Station, Rampur Bushehr, District Shimla Himachal Pradesh, under the provisions of Section 302 read with Section 34 of the Indian Penal Code, petitioner Davinder Kumar was arrested on 21.11.2016. He is in judicial custody since then. He seeks bail in relation to the said FIR. 3. In short, alleged case of the prosecution is that on 18.11.2016, deceased Parvesh Kumar, along with his friend Sohan Lal took lift in the vehicle owned by the petitioner, in which co-accused Ravi Kumar Sharma, Mukesh, Rohit and Neeraj were travelling. During the course of their travel, petitioner and his co-accused gave beatings to deceased Pravesh and thereafter dumped his body. The incident came to be witnesses by Sohan Lal who reported the matter to the parents of the deceased. For two days, deceased was searched and eventually on 20.11.2016 with the recovery of dead body of the deceased from a place known as "Safed Dhank", Rampur, matter came to be reported to the police. 4. It is a matter of record that investigation is almost complete. Nothing incriminating stands recovered from the petitioner. Also, no recovery is sought to be effected from him. 5. Record reveals that the matter came to be reported to the police two days after the occurrence of the incident. At this stage, from the material so collected by the police during investigation, the role ascribed to be petitioner is limited in nature. The petitioner is a local resident and has his roots in the State of Himachal Pradesh. 6. It is a matter of record that co-accused Ravi Sharma and Mukesh already stand released on bail by this Court. 7. 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 the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the 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. 8. 8. In Sanjay Chandra v. Central Bureau of Investigation, (2012) 1 SCC 40 , the apex Court held as under: "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. 41. This Court in Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118 observed that two paramount considerations, while considering a petition for grant of bail in non-bailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses. Both of them relate to ensure the fair trial of the case. Though, this aspect is dealt by the High Court in its impugned order, in our view, the same is not convincing." 9. Apex Court in Prasanta Kumar Sarkar v. 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. 10. Hence, having holistically considered the nature of offence and the relevant attending circumstances in favour of the petitioner, I feel that it is a fit case in which petitioner should be enlarged on bail. 11. 10. Hence, having holistically considered the nature of offence and the relevant attending circumstances in favour of the petitioner, I feel that it is a fit case in which petitioner should be enlarged on bail. 11. As such, petitioner is ordered to be released on bail on his furnishing personal bond in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of the Court concerned. It is clarified that the petitioner shall not tamper with the prosecution evidence, try to influence the witnesses or in any manner conduct himself as to disentitle him from the discretionary power; shall not leave the jurisdiction of the territorial limits of Police Station, Shahpur, without informing the Station House Officer; also, he shall always make himself available during trial. 12. Learned trial Court 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. 13. 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.