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2019 DIGILAW 235 (HP)

Amit Kumar v. State of Himachal Pradesh

2019-03-07

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, J. 1. Bail petitioner namely, Amit Kumar, who is behind the bars since 16.1.2019, 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. 12/2019, dated 12.01.2019, under Sections 307, 323, 506 read with Section 34 of IPC, registered at police Station, Parwanoo, District Solan, Himachal Pradesh. 2. Sequel to orders dated 4th/6th-2.2019, ASI Yadav Chand has come present alongwith the record. Mr. Dinesh Thakur, 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 12.1.2019, complainant Sukhvinder Singh lodged a complaint at police Station, Parwanoo, alleging therein that today in the morning while he was basking the Sun, person namely Deepu, who had come there in Pajero vehicle alongwith three other persons attacked him with sword, as a consequences of which, he suffered injuries on his hand. Complainant also alleged that bail petitioner and other persons while leaving the spot of incident extended threats and fired. On the basis of aforesaid complaint having been made by the complainant, FIR detailed hereinabove, came to be lodged against three accused including the present bail petitioner and since 16.1.2019 present bail petitioner is behind the bars. 4. Mr. Virender Singh Chauhan, learned counsel representing the bail petitioner, while making this Court to peruse the record/status report, strenuously argued that no case much less under Section 307 IPC is made out against the present bail petitioner because there is nothing on record to demonstrate that injury, if any, came to be inflicted on the hand of the complainant by the present bail petitioner, rather as per own statement of the complainant, he was attacked by person namely, Deepu. While referring to the medical evidence adduced on record by the investigating agency, Mr. Chauhan, contended that injuries allegedly suffered by the complainant have been termed to be simple and as such, no case, if any, under Sections 307 and 323 of IPC is made out against the present bail petitioner, who has been falsely implicated. Lastly, Mr. While referring to the medical evidence adduced on record by the investigating agency, Mr. Chauhan, contended that injuries allegedly suffered by the complainant have been termed to be simple and as such, no case, if any, under Sections 307 and 323 of IPC is made out against the present bail petitioner, who has been falsely implicated. Lastly, Mr. Chauhan, contended that there is no evidence adduced on record by the Investigating Agency suggestive of the fact that bail petitioner had been indulging in such activities in past also and as such, he being first offender deserve to be enlarged on bail, especially when nothing remains to be recovered from him. 5. Mr. Dinesh Thakur, learned Additional Advocate General, while fairly acknowledging the factum with regard to completion of investigation, contended that though nothing remains to be recovered from the bail petitioner, but keeping in view the nature of controversy inter se complainant and the bail petitioner, it would not be safe to enlarge him on bail because in the event of petitioner's being enlarged on bail, there may be a clash, resulting into breach of peace. While refuting the contention of Mr. Chauhan, learned counsel representing the petitioner that nothing has emerged in the investigation against the petitioner, Mr. Thakur, learned Additional Advocate General, contended that there is ample evidence on record suggestive of the fact that at the time of alleged incident, present bail petitioner was not only accompanying the main accused Deepu, rather he actively participated in the alleged incident and as such, prayer having been made by him for grant of bail, may be rejected. 6. Having heard learned counsel for the parties and perused the material available on record, this Court finds that though there is a mention of name of present bail petitioner in the initial complaint having been filed by the complainant, but if complaint having been filed by the complainant is read in its entirety, it certainly compels this Court to agree with the contention of learned counsel representing the petitioner that no specific role, if any, is attributed to the present bail petitioner, who admittedly at that relevant time was travelling alongwith the main accused Deepu in a Pajero vehicle. This Court was unable to lay its hand on record, if any, pertaining to identification, if any, of accused by the complainant and as such, after having perused the complaint having been filed by the complainant vis-à-vis. evidence collected on record, this Court is of the view that guilt, if any, of bail petitioner is yet to be established on record by the investigating agency by leading cogent and convincing evidence. 7. Leaving everything aside, perusal of medial evidence adduced on record clearly reveals that injuries allegedly suffered by the complainant have been termed to be simple and as such, no fruitful purpose would be served by keeping the bail petitioner behind the bars for indefinite period, especially when the investigation in the case is almost complete. 8. 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. 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 cannot 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. This does not do any good to our criminal jurisprudence or to our society. 10. 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. 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; wherein it 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. 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." 11. 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. 12. 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, behavior, 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. 13. 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 local surety in the like amount, to the satisfaction of the learned trial Court, with following conditions: (a). 13. 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 local surety in the like amount, to the satisfaction of the learned trial Court, with 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 them 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. 14. 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 his bail. 15. 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.