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Himachal Pradesh High Court · body

2019 DIGILAW 1879 (HP)

Kamaljeet Singh v. State Of Himachal Pradesh

2019-12-09

SANDEEP SHARMA

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JUDGMENT Sandeep Sharma, J. - Bail petitioner, namely Kamaljeet Singh, who is behind the bars since 11.4.2018, has approached this Court in the instant proceedings filed under S.439 CrPC, for grant of regular bail in FIR No. 39, dated 10.4.2018 under S. 302 IPC and S. 25 of Arms Act, registered at PS Lambagaon, Kangra, HP. 2. Sequel to order dated 18.11.2019, ASI Jagdish Chand has come present with the record. Mr. Kunal Thakur, learned Deputy Advocate General has also placed on record status report prepared by the investigating agency on the basis of investigation carried out by it. Record perused and returned. 3. Record/Status report made available to this Court, reveals that on 10.4.2018, police after having received information that a person has suffered gunshot injuries, recorded statement of Manorma (wife of the bail petitioner and mother of the deceased), under S.154 CrPC, on the basis of which a formal FIR, as detailed herein above, came to be lodged against the present bail petitioner. Complainant, as noted herein above, alleged that her husband i.e. bail petitioner has retired from Delhi Police on 30.11.2015. She further stated that she has one son and one daughter. Name of her son is Lucky Rana, who is 33 years old. Though marriage of above named son was solemnised with Rajni in the year 2011, but since 2014, Rajni is living at her parental house on account of certain differences between her and her husband. She further alleged that on 9.4.2018, when she and her husband were preparing to have dinner, her son Lucky Rana came at 9.30 and demanded some money from her husband. She alleged that a scuffle took place inter se her husband and her son. She alleged that her husband told her son, who was standing in the courtyard, that today he would finish the daily quarrels by doing away with his (Lucky Rana) life. Complainant alleged further that thereafter, her husband went inside the room and brought out his licensed gun and fired two shots with the intention to kill their son, Lucky Rana. Complainant further alleged that her son suffered injuries on his arm and forehead on account of gunshots fired by her husband and fell on the ground. It is further alleged by the complainant that her husband (bail petitioner) called ambulance on phone. Complainant further alleged that her son suffered injuries on his arm and forehead on account of gunshots fired by her husband and fell on the ground. It is further alleged by the complainant that her husband (bail petitioner) called ambulance on phone. In the aforesaid background, complainant named herein above, prayed that appropriate action be taken against her husband/bail petitioner. On the basis of aforesaid statement, a case under S.302 IPC and S. 25 of Arms Act came to be registered against the bail petitioner and since 11.4.2018, he is behind the bars. 4. Mr. Kunal Thakur, learned Deputy Advocate General, while fairly admitting that the Challan stands field in the competent Court of law and nothing remains to be recovered from the bail petitioner, strenuously argued that keeping in view the gravity of offence alleged to have been committed by bail petitioner, he does not deserve any leniency rather the bail petitioner needs to be dealt with severely as such, petition may be rejected outrightly. While, making this Court peruse the record, Mr. Thakur, learned Deputy Advocate General made a serious attempt to persuade this Court to agree with his contention that the bail petitioner with the intention to kill his son, fired two gunshots on the vital parts of the body of the deceased. Mr. Thakur, learned Deputy Advocate General further contended that though the record reveals that the relations inter se bail petitioner and the deceased were strained on account of bad habits of the deceased but that could not be a ground for the bail petitioner, who otherwise is a retired police personnel, to take law into his hands. Lastly, Mr. Thakur, learned Deputy Advocate General contended that trial has already commenced and in case, bail petitioner is ordered to be enlarged on bail at this stage, there is every likelihood of his fleeing from justice and tampering with the prosecution evidence, as such, prayer made on behalf of the bail petitioner may be rejected. 5. Mr. N.S. Chandel, learned Senior Advocate duly assisted by Mr. Vinod Gupta, Advocate, appearing for the bail petitioner, contended that it stands duly proved on record that the deceased died on account of gunshot fired by himself and not by the bail petitioner. Mr. 5. Mr. N.S. Chandel, learned Senior Advocate duly assisted by Mr. Vinod Gupta, Advocate, appearing for the bail petitioner, contended that it stands duly proved on record that the deceased died on account of gunshot fired by himself and not by the bail petitioner. Mr. Chandel, learned Senior Advocate, while making this Court peruse the statements of material prosecution witnesses recorded by learned trial Court, contended that the complainant, at whose behest, FIR in question came to be lodged, has turned hostile. He stated that the complainant, who is otherwise sole eye-witness, has categorically deposed that the deceased made an attempt to cause serious injury to her and her husband with Darat. It has also come in the evidence that the deceased himself brought gun of his father from his room and thereafter made an attempt to kill her and her husband and ultimately a scuffle took place between the bail petitioner and the deceased and deceased received injuries on his head and arm. Lastly, Mr. Chandel, learned Senior Advocate contended that as per prosecution story, complainant is the sole eye-witness as such, her statement is only material for determining the guilt, if any, of the bail petitioner. He also contended that the Challan stands filed in the competent Court of law, as such, no fruitful purpose would be served by keeping the bail petitioner behind the bars, especially when statements of material prosecution witnesses stand already recorded. Statements of witnesses produced by Mr. Chandel, learned Senior Advocate are taken on record, which otherwise have been verified by Mr. Kunal Thakur, learned Deputy Advocate General, who has no objection qua the same being taken on record. 6. Having heard learned counsel for the parties and perused the material available on record, this Court finds that though FIR, detailed herein above, came to be lodged at the behest of the complainant, Manorma, who happened to be the wife of the bail petitioner and mother of the deceased, wherein she had alleged that her deceased son died on account of gunshots fired by her husband but careful perusal of the statement given by the above named complainant in the court, suggests that she has not supported the prosecution case. In her statement given to the trial court, above named complainant has stated that on 9.4.2018, her deceased son demanded money from her husband and when her husband refused to give money, deceased started hurling abuses. She deposed before learned Court below that at the time of alleged incident, her deceased son was drunk and he picked up a Darat lying near temple and went towards her husband in the verandah. She also stated that the deceased started attacking her husband with Darat on his arm. She deposed that her husband snatched Darat from the deceased and threw in the courtyard, but in the meantime, deceased went inside the old house and picked up a gun and threatened her and her husband proclaiming that he would kill them both. Complainant tried to pacify the deceased and her husband tried to snatch the gun from the deceased but deceased put the gun on the ground, its nozzle pointing upwards. It is further stated by complainant that the deceased pulled the trigger, as a consequence of which blood started oozing from his forehead and arm. Above named witness was declared hostile. 7. Apart from above, statements of other witnesses recorded till date nowhere prove the prosecution case. As per case of prosecution, complainant Manorma is the eye-witness of the alleged incident and her statement is material for determining guilt, if any, of the bail petitioner. if statements of material prosecution witnesses are read in conjunction juxtaposing each other, it emerges that the deceased was a quarrelsome person and he was a drug addict also, as such, version put forth by the complainant, who happened to be wife of the bail petitioner and mother of the deceased cannot be brushed aside lightly. 8. Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court in the totality of evidence collected on record by the investigating agency but having taken note of the statement of the complainant, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when he has already suffered for one and a half year. Bail petitioner is 63 years old. Bail petitioner is 63 years old. Though there is no material placed on record suggestive of the fact that in the event of bail petitioner being enlarged on bail, he may flee from justice or tamper with prosecution evidence, but it is quite apparent from the record made available to this Court that statements of material prosecution witnesses stand already recorded, as such, this Court sees no impediment in ordering release of the bail petitioner on bail during trial. 9. Hon''ble Apex Court and this Court have repeatedly held that a person is deemed to be innocent till his/her guilt is proved in accordance with law. In the case at hand, guilt, if any, of the bail petitioner is yet to be determined in the totality of the evidence collected on record by the prosecution, as such, by keeping the bail petitioner behind the bars during trial, would amount to curtailing freedom of the bail petitioner. 10. 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 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. 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. 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." 11. 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 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 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." 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. 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 unconvicted 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." 14. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted." 14. 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. 15. In view of above, bail petitioner has carved out a case for himself. Consequently, present petition is allowed. Bail petitioner is ordered to be enlarged on bail, subject to his furnishing bail bonds in the sum of Rs.2,00,000/-(Rupees Two Lakh) with one local surety in the like amount, to the satisfaction of the Investigating Officer/learned trial Court concerned, besides the 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. 16. It is clarified that if the petitioner misuses the 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. 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 this petition alone. 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 this petition alone. The petition stands accordingly disposed of. Copy dasti.