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2019 DIGILAW 174 (HP)

Harnam Singh v. State of Himachal Pradesh

2019-02-08

SANDEEP SHARMA

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JUDGMENT : SANDEEP SHARMA, J. 1. Since all the bail petitions arise out of the same FIR, as such, these were taken up together for hearing and are being disposed of vide this common judgment. 2. Bail petitioners, named hereinabove, have approached this Court in the instant proceedings filed under S.439 CrPC, praying therein for grant of regular bail in connection with FIR No. 13 of 2019 dated 25.1.2019 under Ss.147, 148, 149, 323, 325 and 5056 IPC and S.3(1)(r) and 3(2)(b)(v a) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, registered at Police Station, Dharampur, District Solan, Himachal Pradesh. 3. Sequel to orders dated 4.2.2019, ASI Kamlender Singh, Police Station, Dharampur, Solan, HP, has come present along with the record. Mr. Ashwani Sharma, learned Additional Advocate General, has also placed on record status report, prepared on the basis of the investigation carried out by the Investigating Agency. Record perused and returned. 4. Mr. Rajesh Kumar Parmar, Advocate sought permission of this court to make submissions on behalf of the complainant. Learned counsel for the petitioner has no objection to the same, as such, Mr. Parmar is permitted to make submissions in addition to the submissions to be made by the learned Additional Advocate General. 5. Close scrutiny of record/status report reveals that on 25.1.2019, police party headed by ASI Roshan Lal visited the spot of dispute after having received telephonic information and recorded statement of complainant, Sushma Devi, under S.154 CrPC, who alleged that on 25.1.2019, when she had gone along with her daughters Sonia and Tamanna and mother-in-law, Smt. Hema Devi to the jungle for grazing cattle, then at about 1.30 pm, all the bail petitioners gave them beatings with Danda and Darat (sickle), as a consequence of which, she as also her family members named above, suffered serious injuries. Complainant also alleged that the bail petitioners, at the time of alleged incident called them by their caste. On 25.1.2019 itself, police got the complainant party medically examined at CHC Dharampur. Medical Officer, CHC Dharampur, after having medically examined the complainant party, opined the injuries suffered by them to be simple in nature, save and except one injury suffered by complainant, Sushma Devi, which was opined to be grievous. On 25.1.2019 itself, police got the complainant party medically examined at CHC Dharampur. Medical Officer, CHC Dharampur, after having medically examined the complainant party, opined the injuries suffered by them to be simple in nature, save and except one injury suffered by complainant, Sushma Devi, which was opined to be grievous. In the aforesaid background, FIR under Ss.147, 148, 149, 323, 325 and 506 IPC and Ss.3(1)(r) and 3(2)(b)(v a) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, came to be registered against the bail petitioners. Though, there is no mention, if any, with regard to cross-FIR alleged to have been lodged by the bail petitioners, but during proceedings of the case, this court also asked for record of cross-FIR, if any, filed by the bail petitioners. Investigating Officer disclosed that cross-FIR bearing No. 14 of 2019, came to be lodged against the complainant in the instant case on the complaint having been filed by one of the bail petitioners, namely Prit Pal on 26.1.2019, under Ss.147, 148, 149, 323 and 506 IPC at Police Station, Dharampur. He further informed that the accused named in that FIR have been already ordered to be enlarged on bail by the court below. Careful perusal of the record/ status report reveals that the alleged scuffle inter se parties took place on account of some land dispute, which is otherwise pending adjudication in civil court. 6. Mr. Sudhir Thakur, learned counsel representing the bail petitioners, strenuously argued that since the investigation stands completed and nothing remains to be recovered from the bail petitioners, they can not be kept behind the bars for an indefinite period during trial,. While referring to the record/ status report, Mr. Thakur made serious attempt to persuade this court to agree with his contention that no case, much less case under S.325 IPC is made out against the bail petitioners, because, there is no injury, which can be termed to be grievous, caused with an intention to kill the complainant or other persons. Lastly, Mr. Thakur contended that it has specifically come in the investigation that dispute inter se parties occurred on account of land dispute, as such, dispute inter se parties being civil in nature, requires to be decided in civil court and not in criminal court. 7. Mr. Lastly, Mr. Thakur contended that it has specifically come in the investigation that dispute inter se parties occurred on account of land dispute, as such, dispute inter se parties being civil in nature, requires to be decided in civil court and not in criminal court. 7. Mr. Ashwani Sharma, learned Additional Advocate General, while admitting the factum with regard to nature of dispute being civil in nature, contended that though there may be dispute inter se parties on account of land, but that does not mean that the bail petitioners can attack the complainant and her family members with weapons like Danda and Darat. While referring to the medical opinion given by the Medical Officer, Mr. Sharma, learned Additional Advocate General, contended that the complainant, Smt. Sushma Devi, suffered serious head injury, as such, it can not be said that no case is made out under S.325 IPC against the bail petitioners. 8. Mr. Rajesh Kumar Parmar, learned counsel representing the complainant, while supporting the case of investigating agency, contended that cross-FIR, if any, came to be filed on behalf of the bail petitioners, on the next date of alleged incident, that too, as a counter-blast to the FIR already filed at the behest of the complainant, as such, same is of no consequence, as far as consideration of bail petitions at hand is concerned. Mr. Parmar, further contended that bail petitioners are still extending threats to the complainant and her family members, as such, it would not be in the interest of justice, if bail petitioners are ordered to be enlarged on bail at this stage. 9. Having heard the learned counsel for the parties and perused material available on record, this court finds that the dispute, if any, inter se parties, which occurred on the alleged date of incident, is/was on account of land dispute. It has also emerged from the record /status report that the parties are litigating with each other in civil court on account of some land dispute. It has also emerged from the record /status report that the parties are litigating with each other in civil court on account of some land dispute. No doubt, there is material adduced on record by investigating agency that on the date of alleged incident, complainant and her family members were given beatings by the bail petitioners but, interestingly, this court was unable to lay its hand to the statement, if any, of any independent witness associated by the investigating agency to lend support to the version put forth by the complainant with regard to the beatings allegedly given by bail petitioners. 10. Though, the medical evidence adduced on record reveals that in the alleged incident, complainant suffered grievous injury but factum with regard to alleged incident and infliction of injuries on the person of the complainant and her family members is yet to be established on record by the investigating agency by leading cogent and convincing evidence. 11. Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court in the totality of evidence adduced before it by the investigating agency, but, having taken note of the fact that investigation is complete and nothing is required to be recovered from the bail petitioners, this court sees no reason to keep the bail petitioners behind the bars, for an indefinite period, especially when nothing is required to be recovered from them. Though, there is nothing on record to suggest that the bail petitioners, after alleged incident, had been threatening the complainant party, but if it is so, complainant will be within her right to make complaint to the Police, who in turn, can move this court for cancellation of bail. 12. 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/her guilt is yet to be 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. 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. 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. 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. 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." 13. By now it is well settled that gravity alone cannot be a 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 SCC 40 ; 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. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation, (2012) 1 SCC 40 ; 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. 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." 14. 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. 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. 15. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218 , Hon'ble Apex Court has held as under: "This Court in Sanjay Chandra vs. Central Bureau of Investigation, (2012) 1 SCC 40 , also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that 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 found guilty. It was underlined that the object of bail is neither punitive nor preventive. This Court sounded a caveat 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 a conduct whether an accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and that grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted." 16. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted." 16. 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. 17. In view of above, present petitions are allowed and petitioners are ordered to be enlarged on bail subject to furnishing bail bonds in the sum of Rs. 1,00,000/- (Rs. One Lakh) each with one local surety in the like amount each, to the satisfaction of the trial court/Chief Judicial Magistrate concerned, besides the 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 them 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. e. They shall deposit the passports, if any, held by them with the investigating agency. 18. It is clarified that if the petitioners misuse the liberty or violate any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail. 19. 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 petitions alone. 19. 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 petitions alone. The bail petitions stand disposed of accordingly.