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2019 DIGILAW 1180 (HP)

Vinod v. State Of Himachal Pradesh

2019-08-19

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, J. By way of above captioned petitions filed under Section 439 of the Code of Criminal Procedure, prayer has been made on behalf of the bail petitioners, namely, Vinod, Rajender and Vicky for grant of regular bail in case FIR No.135/19 dated 1.7.2019, under Sections 307, 341, 323, 147, 148, 149 and 506 of IPC, registered at police Station, Sadar Shimla, District Shimla, Himachal Pradesh. 2. Sequel to orders dated 24th/29th July, 2019, HC Kishore Kumar, has come present alongwith the record. Mr. Sudhir Bhatnagar, learned Additional Advocate General, has also placed on record fresh status report prepared on the basis of the investigation carried out by the Investigating Agency. Record perused and returned. 3. Close scrutiny of the record/status report, reveals that on 1.7.2019, complainant Vikas lodged a complaint at police Station, Sadar, District Shimla, H.P., alleging therein that on 30.6.2019, at about 10:30 PM, when he had come to cart road for purchasing Ice cream, persons namely, Karan and Suraj stopped him and extended threats. He further alleged that after having heard noise, his younger brother Vikrant also came on the spot. On seeing his brother Vikrant, Karan and Suraj fled away from the spot at that moment, but subsequently they came alongwith persons namely, Raju, Karan, Suraj, Rahul, Vicky and Vinod and gave merciless beatings to him as well as his brother with the help of beer bottle and chopper, as a result of which, they suffered serious injuries. Allegedly, the bail petitioners before this Court also gave beatings to the persons namely, Bunty and Vipin, who had come to the spot to rescue Vikas and his brother Vikrant. Police got the complainant medically examined at DDU Hospital, Shimla and subsequently on the basis of the aforesaid statement made by the complainant, lodged formal FIR, as has been taken note hereinabove, against the bail petitioners under Sections 307, 341, 323, 147, 148, 149 and 506 of IPC. Bail petitioners are behind the bars since 1st July, 2019. Co-accused Suraj, who earlier absconded, has been already granted bail by the Co-ordinate Bench of this Court vide order dated 5th August, 2019. 4. Mr. Bail petitioners are behind the bars since 1st July, 2019. Co-accused Suraj, who earlier absconded, has been already granted bail by the Co-ordinate Bench of this Court vide order dated 5th August, 2019. 4. Mr. Sudhir Bhatnagar, learned Additional Advocate General though on the instructions of Investigating Officer, who is present in Court, fairly admitted that investigation in the case is complete, but contended that keeping in view the gravity of offence alleged to have been committed by the bail petitioners, they do not deserve any leniency and as such, prayer for grant of bail made on behalf of the bail petitioners may be rejected out rightly. He further contended that record reveals that all the bail petitioners are habitual offender and in past numerous cases have been registered against them. He further contended that in the event of petitioners' being enlarged on bail, they may not only flee from justice, rather they may tamper with the prosecution evidence or dissuade the prosecution witnesses from deposing against them. 5. Mr. N.K.Thakur, learned Senior counsel representing the bail petitioners while inviting attention of this Court to the medical opinion rendered on record by the Medical Officer, contended that no case much less under Section 307 of IPC is made out against the bail petitioners. Mr. Thakur, further contended that it is apparent from the record that cross FIR's came to be lodged against each other because in the alleged incident bail petitioners also suffered grievous as well as simple injuries. Mr. Thakur, further contended that as per own story of the prosecution, no evidence with regard to use of blunt weapon such as sword, chopper and Khokhari came to be established and as such, bail petitioners, who are behinds the bars for more than 1= months deserve to be enlarged on bail. He further contended that during investigation complainant as well as bail petitioners have entered into the compromise, whereby they have resolved to settle their dispute amicably inter se them and as such, prayer made in the present petitions may be considered sympathetically. 6. Before adverting to the factual matrix of the case, it may be noticed that this Court having taken note of the compromise arrived inter se parties, specifically directed the Investigating Officer to verify the genuineness and correctness of the compromise. 6. Before adverting to the factual matrix of the case, it may be noticed that this Court having taken note of the compromise arrived inter se parties, specifically directed the Investigating Officer to verify the genuineness and correctness of the compromise. Investigating Officer after verifying the facts, have fairly stated that two complainants namely, Vikas and Vikrant have fairly acknowledged the factum with regard to compromise placed on record. Statements of other complainants, who are behind the bars in connection with cross-FIR lodged by the bail petitioners, could not be recorded, but careful perusal of compromise placed on record reveals that during pending investigation, complainants have resolved to settle their dispute amicably with the accused. Question whether cases registered against each other can be quashed or not on the basis of the compromise cannot be considered in the instant proceedings and as such, same is left open to be decided in the appropriate proceedings in the appropriate court of law. 7. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that on the date of alleged incident, bail petitioners allegedly gave beatings to the complainants, named hereinabove, as a consequence of which, they suffered multiple injuries, but having carefully perused the MLC placed on record, this Court is in agreement with the arguments advanced by Mr. N.K.Thakur, learned counsel that no grievous injuries ever came to be inflicted and as such, it is not understood how case under section 307 of IPC is sustainable. All the injuries allegedly suffered by the complainants have been termed to be simple in nature. Apart from above, this Court find that qua the same incident, cross FIR came to be lodged at police Station,Sadar, Shimla. In the FIR lodged by the bail petitioners, two persons, who are complaints in the present case, came to be arrested, whereas remaining two were released on bail by the learned Sessions Judge, Shimla. Moreover, allegation with regard to using sword, khokari and chopper at the time of alleged incident is highly doubtful because as per status report C.C.T.V. footage, nowhere reveals that at the time of alleged offence bail petitioners were carrying sharp edged weapon, as mentioned hereinabove. 8. Moreover, allegation with regard to using sword, khokari and chopper at the time of alleged incident is highly doubtful because as per status report C.C.T.V. footage, nowhere reveals that at the time of alleged offence bail petitioners were carrying sharp edged weapon, as mentioned hereinabove. 8. No doubt, record/status report suggests that bail petitioners have been indulging in illegal activities in past also and numbers of cases have been registered against them in past, but that cannot be a ground to reject their bail. It has been held by Hon'ble Apex Court in Maulana Mohammed Amir Rashadi v. State of U.P., (2012) 2 SCC 382 that merely on the basis of criminal antecedents, the claim of the bail petitioner cannot be rejected. Hon'ble Apex Court has observed as under: "10. It is not in dispute and highlighted that the second respondent is a sitting Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquittal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdiction of the Court etc." 9. Moreover, this Court finds from the record that in majority of cases registered against the bail petitioners, they have been either fined or acquitted. Since investigation in the case is complete and nothing remains to be recovered from the bail petitioners coupled with fact that complainants have resolved to settle their dispute amicably, this Court sees no reason to allow the bail petitioners incarcerate in jail for indefinite period during the trial. 10. Hon'Ble Apex Court as well as this Court in number of cases have repeatedly held that one is deemed to be innocent till the time his /her guilt is not proved, in accordance with law. Guilt, if any, of the bail petitioners are yet to be established on record by the Investigating Agency by leading cogent and convincing evidence. 10. Hon'Ble Apex Court as well as this Court in number of cases have repeatedly held that one is deemed to be innocent till the time his /her guilt is not proved, in accordance with law. Guilt, if any, of the bail petitioners are yet to be established on record by the Investigating Agency by leading cogent and convincing evidence. Apprehension expressed by learned Additional Advocate General with regard to petitioners fleeing from justice in the event of their being enlarged on bail, can be best met by putting bail petitioners to stringent conditions, as has been fairly admitted by the learned counsel representing the bail petitioners. 11. Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh and Anr decided on 6.2.2018 has categorically held that freedom of an individual is of utmost importance and same cannot be curtailed merely on the basis of suspicion. Hon'ble Apex Court has further held that till the time guilt of accused is not proved, in accordance with law, he is deemed to be innocent. The relevant paras No.2 to 5 of the judgment are reproduced 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. 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. 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. 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. 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 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, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. 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 Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation, 2012 1 SCC 49; 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 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. 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 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 unconvicted person for the propose of giving him a taste of imprisonment as a lesson." 14. The Hon'ble 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. 15. Consequently, in view of the above, present bail petitions are allowed. Petitioners are ordered to be enlarged on bail subject to their furnishing personal bond in the sum of Rs. 1,00,000/- (Rs. 15. Consequently, in view of the above, present bail petitions are allowed. Petitioners are ordered to be enlarged on bail subject to their furnishing personal bond in the sum of Rs. 1,00,000/- (Rs. one lakh) with one local surety in the like amount each, to the satisfaction of the learned trial Court, with following conditions: a. they shall make themselves 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. they shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c. they shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or the Police Officer; and d. they shall not leave the territory of India without the prior permission of the Court. 16. It is clarified that if the petitioners misuse their liberty or violates any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail. 17. 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 these application alone. The bail petitions stand disposed of accordingly.