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2019 DIGILAW 175 (HP)

Prem Singh v. State of Himachal Pradesh

2019-02-08

SANDEEP SHARMA

body2019
JUDGMENT : SANDEEP SHARMA, J. 1. Bail petitioner, Shri Prem Singh, who is behind the bars since 19.08.2018, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No. 236 of 2018, dated 17.08.2018, under Sections 307, 324, 326 and 356 of the IPC, registered at police Station, Sadar Solan, District Solan, Himachal Pradesh. 2. Sequel to orders dated 01.01.2019 and 11.1.2019, Head Constable Rajesh Kanwar, Police Station Sadar Solan, District Solan, H.P., has come present along with the record. Mr. Nand Lal, 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. 3. Close scrutiny of the record/status report, reveals that on 17.08.2018, complainant - prosecutrix Shalu got recorded her statement under Section 154 Cr.P.C. to the police officials of Police Station, Sadar, Solan that on 17.08.2018, when she was going to her quarter after finishing her duties, at about 8:15 pm, bail-petitioner snatched her mobile and attacked her with knife, consequences of which she suffered injuries in her stomach and on the face. Complainant further alleged that after hearing her cries, a person, namely, Sunil Kumar rescued her from the clutches of the bail petitioner. 4. On the basis of aforesaid statement having been made by the complainant under Section 154 Cr.P.C., a formal FIR, as detailed hereinabove, came to be lodged against the present bail-petitioner on 17.08.2018. On 19.08.2018, bail petitioner was arrested and since then he is behind the bars. Police got the complainant-victim medically examined after the alleged incident from the Medical Officer, Civil Hospital, Solan, who in his opinion, termed three injuries allegedly suffered by the complainant to be simple, whereas two injuries to be grievous in nature. 5. As per the investigation, the complainant and bail petitioner were known to each other for quite a considerable time i.e. for three years, it has specifically come in the statement of the complainant that before the alleged incident, she had an affair with the present bail-petitioner but subsequent on account of certain differences she stopped meeting the bail-petitioner. 5. As per the investigation, the complainant and bail petitioner were known to each other for quite a considerable time i.e. for three years, it has specifically come in the statement of the complainant that before the alleged incident, she had an affair with the present bail-petitioner but subsequent on account of certain differences she stopped meeting the bail-petitioner. Investigation further reveals that bail-petitioner was unhappy with the complainant because of her relationship with other persons and as such he on 17.08.2018 attacked the complainant, who at that relevant time was alone. Investigation in the case is complete and challan stands filed in the competent Court of law. 6. Mr. R.K. Bawa, learned Senior Counsel representing the bail-petitioner, while referring to the record/status report made a serious attempt to persuade this Court that no case, much less under Section 307 of the IPC is made out against the bail-petitioner because there is no evidence adduced on record by the investigating agency till date suggestive of fact that bail- petitioner attacked complainant with the intention to kill her. While seriously refuting the allegations of giving beatings to the complainant by the bail-petitioner, Mr. Bawa, contended that since challan stands filed in competent Court of law and nothing required to be recovered from the bail-petitioner, no fruitful purpose would be served, in case, petitioner is kept behind the bars for an indefinite period, especially, when he has already suffered for more than about six months. Mr. Bawa, further contended that there is no record to indicate that bail-petitioner had been indulging in such activities in past and as such his prayer for enlargement on bail deserves to be considered sympathetically. 7. Mr. Nand Lal, learned Additional Advocate General, fairly admitted the factum of filing the challan before the competent Court of law and contended that though nothing is required to be recovered from the bail-petitioner but keeping in view the controversy inter-se complainant and bail petitioner there is possibility of bail-petitioner being indulging in same activity again and as such it would not be safe to enlarge him on bail at this stage. 8. While referring to the medical evidence adduced on record, Mr. Nand Lal, further contended that two injuries allegedly suffered by the complainant have been opined to be grievous, as such, there is no force in the argument of Mr. 8. While referring to the medical evidence adduced on record, Mr. Nand Lal, further contended that two injuries allegedly suffered by the complainant have been opined to be grievous, as such, there is no force in the argument of Mr. Bawa, that no case is made out under Section 307 of the IPC. 9. Having heard learned counsel for the parties and perused the material available on record, though this Court finds that there is evidence available on record at this stage to demonstrate that on the date of alleged incident, bail petitioner had attacked the complainant-victim but if complaint having been filed by the complainant read in its entirety, it clearly reveals that complainant had close proximity with the bail-petitioner prior to the alleged incident. Though investigating agency has recorded the statement of person, namely, Sunil Kumar, to prove the factum with regard to attack made by the bail-petitioner on the complainant on the date of alleged incident but his statement itself suggest that he reached spot after having heard the cries of the complainant. 10. Leaving everything aside, this Court finds that challan already stands filed in competent Court of law and nothing remain to be recovered from the bail-petitioner. Moreover, the bail-petitioner is behind the bars since 19.08.2018 i.e. almost about six months. Guilt, if any, of the bail-petitioner is yet to be proved in accordance by investigating agency by leading cogent and convincing evidence. This Court sees no reason to curtail freedom of the bail-petitioner by keeping him behind the bars for indefinite period during the trial. No material has been placed on record by the investigating agency suggestive of the fact that in the event of the bail-petitioner enlarged on bail he may indulge in such kind of activities again and as such the bail-petitioner being the first offender also deserves to be enlarged on bail. 11. It has been repeatedly held by Hon'ble Apex Court as well as this Court that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved, in accordance with law. 12. 11. It has been repeatedly held by Hon'ble Apex Court as well as this Court that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved, in accordance with law. 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 categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon'ble Apex Court further held that while considering prayer for grant of bail, 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. Hon'ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid 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 13. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation, (2012) 1 SCC 40 ; 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, 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. 15. 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. 16. Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing personal bond in the sum of Rs. 1,00,000/- (Rs. 16. Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing personal bond in the sum of Rs. 1,00,000/- (Rs. One lakh) with one surety in the like amount, to the satisfaction of the learned trial Court, with following conditions: a. he shall make herself 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. 17. It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 18. 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 this application alone. The bail petition stands disposed of accordingly.