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2018 DIGILAW 515 (HP)

Mohd. Arshad @ Kuki v. State of Himachal Pradesh

2018-04-02

SANDEEP SHARMA

body2018
JUDGMENT : Sandeep Sharma, J. 1. By way of instant bail petition under Section 439 Cr.P.C, prayer has been made on behalf of the bail petitioner namely Mohd. Arshad alias Kuki, who is behind bars since 7.11.2017, for grant of regular bail in FIR No. 275/2017 dated 7.11.2017, under Sections 452, 307, 325, 107, 147, 148 and 149 IPC, registered at Police Station, Sadar, District Chamba, Himachal Pradesh. 2. Sequel to order dated 6.3.2018, ASI Subhash Kumar has come present with the record. Mr. Dinesh Thakur, learned Additional Advocate General has also placed on record status report, prepared on the basis of investigation carried out by the investigating agency. Record perused and returned. 3. Close scrutiny of record/status report reveals that FIR mentioned herein above came to be lodged at the behest of complainant Nagina Begum, who alleged that on 6.11.2017, three persons including present bail petitioner jumped the wall and entered her house. As per complainant, her son namely Anwar Sheikh, who at the relevant time was sleeping in his room, was attacked by three persons. Having heard cries, complainant went into the room of her son and found that he was given merciless beatings, as a result of which, he had suffered injuries. Complainant specifically alleged that she could only identify one person namely Kuki (bail petitioner) son of Shri Abdul Qayum at the time of alleged incident. Investigation further reveals that since complainant had raised hue and cry, villagers gathered on the spot of occurrence and they also apprehended three persons at a distance of 50 metres. Victim namely Anwar Sheikh was taken to Regional Hospital, Chamba, from where he was referred to PGI Chandigarh. Investigation report further reveals that Anwar Sheikh was discharged from PGI Chandigarh on 30.11.2017, whereafter, he was again admitted at Regional Hospital, Chamba. 4. Mr. N.K. Thakur, learned Senior Advocate duly assisted by Mr. Divya Raj Singh, Advocate vehemently argued that mere naming of bail petitioner by the complainant may not be sufficient to conclude offence, if any, allegedly committed under Section 307 IPC because it has clearly come in the investigation that there was no dispute inter se complainant and bail petitioner, rather, dispute, if any, was with Shehnaz, who happened to be sister of bail petitioner. Mr. Mr. Thakur, learned Senior Advocate further contended that it is not the case of the prosecution that bail petitioner was apprehended on the spot by the mob gathered outside the gate of the complainant. Mr. Thakur, learned Senior Advocate further contended that there is no direct evidence available on record suggestive of the fact that bail petitioner inflicted injury on the person of Anwar Sheikh because, admittedly, in the instant case, weapon allegedly used for inflicting injury on the complainant came to be recovered at the behest of some other person i.e. Abdul Hameed and not the present bail petitioner. While referring to the record, Mr. Thakur, contended that otherwise also, complainant had been changing her stance frequently, because in her initial complaint, she stated that three persons had entered her house unauthorizedly, but, subsequently, after a few days, she named other persons i.e. Shaukat Ali and Mohd. Shahid, who have been already enlarged on bail by this Court. Mr. Thakur, learned Senior Advocate further contended that guilt, if any, of the bail petitioner is yet to be proved in accordance with law and as such, petitioner can not be allowed to remain behind bars for indefinite period. He placed reliance upon judgment of Hon'ble Apex Court rendered in Dataram Singh vs. State of Uttar Pradesh & Anr (Criminal Appeal No. 227/2018, decided on 6.2.2018) and stated that it has been categorically held by Hon'ble Apex Court that freedom of an individual is of utmost importance and same can not be curtailed for indefinite period. While praying for grant of bail to the bail petitioner, Mr. Thakur, learned Senior Advocate contended that other co-accused have been already enlarged on bail and as such, bail petitioner, who is behind bars for almost six months, also deserves to be enlarged on bail. He further stated that investigation in the case is almost complete and Challan stands filed in the competent Court of law. 5. Mr. Dinesh Thakur, learned Additional Advocate General, while opposing aforesaid prayer having been made by the learned senior counsel appearing for the bail petitioner, contended that keeping in view the gravity of offence allegedly committed by bail petitioner, he does not deserve any leniency, rather he needs to be dealt with severely. 5. Mr. Dinesh Thakur, learned Additional Advocate General, while opposing aforesaid prayer having been made by the learned senior counsel appearing for the bail petitioner, contended that keeping in view the gravity of offence allegedly committed by bail petitioner, he does not deserve any leniency, rather he needs to be dealt with severely. He further stated that perusal of statement made by complainant suggests that bail petitioner had entered the house of the complainant unauthorizedly and he thereafter inflicted grievous injuries on the body of Anwar Sheikh and as such, there is no force in the arguments of Mr. Thakur, learned Senior Advocate representing bail petitioner that there is no direct evidence suggestive of the fact that the bail petitioner was not involved in the case. Mr. Dinesh Thakur, learned Additional Advocate General, further contended that in the event of petitioner being enlarged on bail, there is every likelihood of his influencing the witnesses because his previous record suggests that he is a hardened criminal. While referring to the medical record, adduced on record by prosecution, Mr. Thakur, contended that complainant remained admitted at PGI Chandigarh for a considerable time and it is quite apparent from the record that bail petitioner made an attempt to kill the victim with sharp edged weapon as such, he is not entitled to be released on bail at this stage. 6. I have heard the learned counsel for the parties and gone through the record carefully. 7. True it is, that a close scrutiny of statement having been made by the complainant, clearly suggests that though three persons had jumped the wall of her house before entering the room, where victim Anwar Sheikh was sleeping but she has categorically stated that she could identify the person namely Kuki (bail petitioner) but this Court can not lose sight of the fact that guilt, if any, of bail petitioner is yet to be proved in accordance with law by the prosecution by leading cogent and convincing evidence. Similarly, medical evidence available on record though suggests that Anwar Sheikh suffered grievous injuries on account of injuries inflicted upon his body but as has been observed above, prosecution is yet to prove on record by leading cogent evidence that grievous injury was caused on the person of victim Anwar Sheikh by bail petitioner, as such, this Court sees no reason to allow him to incarcerate in jail for indefinite period, especially when investigation is complete and Challan stands filed in the competent Court of law. There is no material placed on record by investigating agency to demonstrate that in the event of petitioner being enlarged on bail, he may influence/tamper with evidence adduced on record by prosecution. Other co-accused namely Modh. Shahid and Shaukat Ali have been already enlarged on bail as such, present bail petitioner also deserves to be enlarged on bail. 8. Repeatedly, it has been held by Hon'ble Apex Court that gravity of offence alone can not be a factor to deny bail, rather, other competing factors are to be taken into consideration while considering prayer for grant of bail. 9. Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual can not be curtailed for indefinite period, especially when his guilt has not been proved. It has further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held as under: “2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973. 5. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973. 5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons.” 10. By now it is well settled that gravity alone cannot be decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon’ble Apex Court that 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. The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; has been held as under:- “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 can be 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. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted 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 India, 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. Apart from the question of prevention being the object of 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 un-convicted person for the propose of giving him a taste of imprisonment as a lesson.” 11. 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. 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. 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. (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.” (Emphasis supplied) 12. Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind 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 involved in that crime. 13. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind 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 involved in that crime. 13. The 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. 14. In view of above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing bail bonds in the sum of Rs.1,00,000/- (Rs. One Lakh) with one local surety in the like amount, to the satisfaction of the Investigating Officer concerned, besides following conditions: (a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; (b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; (c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and (d) He shall not leave the territory of India without the prior permission of the Court. (e) He shall surrender passport, if any, held by him. 15. It is clarified that if the petitioner misuses the liberty or violate any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 16. (e) He shall surrender passport, if any, held by him. 15. It is clarified that if the petitioner misuses the liberty or violate any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 16. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of instant petition alone. The petition stand accordingly disposed of.