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Himachal Pradesh High Court · body

2018 DIGILAW 2030 (HP)

Vishwajeet Kumar v. State of H. P.

2018-11-20

VIVEK SINGH THAKUR

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JUDGMENT : VIVEK SINGH THAKUR, J. 1. This petition has been filed, under Section 439 Cr.P.C., seeking regular bail on behalf of the petitioner, who is presently in judicial custody pending trial in case FIR No. 71 of 2016 dated 4.9.2016 under Section 302 read with Section 34 IPC before learned Additional Sessions Judge, Sirmaur at Nahan. 2. Pending investigation, petitioner was arrested on 6.9.2016 and thereafter he was sent in judicial custody. Later on, on 3.1.2017, he was released on bail by learned Sessions Judge. After release on bail, he appeared in the trial Court once on 22.2.2017, on which date case was adjourned for 2.3.2017 for consideration on charge. However, on 2.3.2017 petitioner did not appear and an application for exemption filed on his behalf on the ground that, as per information supplied by his father, Shri Bhim Kumar, he had taken admission in a school. Thereafter, he did not appear on 15.3.2017, however, on his appearance in Court on 20.3.2017, case was again listed for consideration on charge on 27.3.2017 on which date case was again adjourned on his request for 30.3.2017. On 30.3.2017, an application for exemption was filed on his behalf on the basis of information supplied by his brother that he could not present in Court as the petitioner and his father had met with an accident. Prayer for exemption was allowed and case was listed on 17.4.2017. Thereafter, again petitioner did not appear on 17.4.2017, 29.4.2017 and 5.5.2017. On 5.5.2017, father of petitioner had appeared and moved another application for exemption on the ground that petitioner had been advised rest for 3-4 weeks by the doctor. Believing his plea, the exemption from appearance was again permitted by the trial Court and case was adjourned for 20.5.2017. But on that day, neither petitioner nor his father appeared, but his bail was not cancelled on that day expecting his appearance on the next date i.e. 25.5.2017. On 25.5.2017 surety of petitioner appeared and had expressed inability to produce the petitioner, where after, neither petitioner nor his father appeared in the Court resulting into issuance of bailable warrants on various occasions. 3. On 25.5.2017 surety of petitioner appeared and had expressed inability to produce the petitioner, where after, neither petitioner nor his father appeared in the Court resulting into issuance of bailable warrants on various occasions. 3. For execution of bailable warrants, police visited the native place of petitioner and during that course, father of petitioner had made a statement that police had raided his house on 19.7.2017 at about 8.15 PM, but his son was absconding since 18.5.2017 without informing his whereabouts to any member of family and thus, he did not know where petitioner was residing. Shri Vijay Singh, Pradhan Gram Panchayat Raj Kochra had also issued the certificate to the same effect stating therein that petitioner was absconding since 18.5.2017 and was not having any link or contact with his family members and therefore, his relatives and villagers were not able to tell anything about him. The certificate to the same effect was again issued by Shri Vijay Singh Pradhan Gram Panchayat Raj Kochra by reiterating the version given in the previous certificate with further statement that he was not having knowledge about the whereabouts of petitioner. On the same day, father has again deposed before the police to the same effect. Ultimately, on the basis of call records, he was traced and in execution of non-bailable warrants, after keeping track upon him, he was arrested in March, 2018 after about one year. After his arrest, he had again moved an application for releasing him on bail before learned Additional Sessions Judge, which stands dismissed on 24.4.2018. 4. Learned counsel for the petitioner, relying upon the pronouncements of this Court in Mast Ram vs. State of Himachal Pradesh reported in 2018(1) Him.L.R. 325 and judgment of the Apex Court in Sanjay Chandra vs. Central Bureau of Investigation reported in (2012)1 SCC 40 , has canvassed that object of bail is to secure the appearance of accused persons during the trial by imposing certain terms and is neither punitive nor preventative and bail is not to be denied merely because of sentiments of the community against the accused. Relying upon the decision of this Court in Deepak Kumar vs. State of H.P. reported in 2015(1) Him.L.R. 308, and Dataram Singh vs. State of Uttar Pradesh reported in 2018(1) Him.L.R. 273, it is also argued that bail is rule and committal to jail is an exception and by refusing the bail, personal liberty of the individual guaranteed under Article 21 of the Constitution of India cannot be curtailed unless there are compelling circumstances for doing so. It is further argued that accused is to be presumed to be innocent till the conviction by competent Court of law and relying upon Jai Krishan vs. State of H.P. reported in 2018(1) Him.L.R. 588 it has been submitted that detention in custody, pending completion of trial, can cause a great hardship to the petitioner and therefore his release on bail has been prayed. 5. The petitioner has also relied upon affidavit of Vijay Singh, Pradhan Gram Panchayat Raj Kochra, wherein he has deposed about factum of accident wherein petitioner was injured. According to this affidavit, after the accident he was at Bermo in District Bokaro with his brother for his treatment. Certain documents with regard to medical treatment of petitioner have also been placed on record. According to which, he had suffered dislocation in left leg in an accident. 6. Affidavit of Vijay Singh, Pradhan of Gram Panchayat Raj Koachra is not trustworthy for the reason that in paras 4 and 5 of the affidavit he has narrated the story of accident, wherein petitioner was allegedly injured and was taken by family members for his treatment to Bermo in District Bokaro where his elder brother was residing. But in the same affidavit in para 6, he has admitted the issuance of certificate to the police stating therein that he was not having any knowledge about where about of petitioner. It is not a case where only Pardhan Gram Panchayat had issued the certificate but Mr. Bhim Singh, father of petitioner had also made the statement to the police in July, 2017 that his son was absconding since 18.5.2017 without telling anything to family members and the relatives. It is not a case where only Pardhan Gram Panchayat had issued the certificate but Mr. Bhim Singh, father of petitioner had also made the statement to the police in July, 2017 that his son was absconding since 18.5.2017 without telling anything to family members and the relatives. It is also noticeable that on 5.5.2017 father of the petitioner had appeared in Court with plea that after receiving injury in the accident the petitioner was advised rest for 3-4 weeks by the doctor, whereupon the case was adjourned for 20.5.2017 and thereafter for 25.5.2017. But it is a fact that petitioner did not appear in Court after 20.3.2018 and thereafter he was arrested by police after tracking his call records. 7. At the most, even if affidavit of Vijay Kumar Pardhan Gram Panchayat and medical record is believed, it can be said that petitioner had met with an accident in April, 2017 and was under treatment till May 2017. But thereafter his whereabouts were not known even to his father, as stated by him to the police officials visited his native place in the months of July and September, 2017. Similar statement was also made by Panchayat Pardhan by issuing the certificates. Therefore, absence of petitioner after May 2017 is not justifiable. 8. There is no quarrel about the proposition that object of bail is to secure the appearance of petitioner and detention in custody pending completion of trial can be a cause of great hardship and every person is deemed to be innocent until duly tried and found guilty. But in present case, it is not the case of petitioner that he is seeking bail for the first time. In fact, he was released on bail earlier and thereafter he jumped over the bail and thereafter he was arrested by police after tracking his call records and therefore, at this stage it cannot be believed that after his release on bail he would be available for trial particularly, in view of the certificates of Pardhan and statements of his father. 9. As this stage, learned counsel for the petitioner submits that the trial Court be directed to expedite the trial. 9. As this stage, learned counsel for the petitioner submits that the trial Court be directed to expedite the trial. As per status report, trial is in progress and statements of certain witnesses have been recorded w.e.f. 13.11.2018 to 16.11.2018 and now the case has been listed for 22.11.2018 for fixing the date for recording the evidence of prosecution witnesses. It is apparent that learned trial Court is conducting the trial expeditiously as is required in the case of under trial prisoners. 10. In view of above discussion, petition is dismissed.