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2019 DIGILAW 378 (HP)

RAHUL MALIK v. STATE OF HIMACHAL PRADESH

2019-04-05

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release in case FIR No. 68 of 2016, dated 27.06.2016, under Section 302, 307, 147, 148, 149 IPC and Section 25 of the Arms Act, registered at Police Station Dharampur, District Solan, H.P. 2. In the instant case, the present petitioner has been taken in custody by the police and as per the prosecution story, which formed basis for the custody of the petitioner, can tersely be encapsulated as under: On 26.06.2016 Smt. Taran Jeet Kaur (complainant) got her statement recorded under Section 154 Cr.P.C. The complainant stated that she alongwith her husband, Shri Param Jeet Singh (deceased) used to run a restaurant (dhaba) at Sanawara and the said dhaba was being looked after by her, her husband and nephew Hansdeep. On 26.06.2016, when she was washing clothes, around 05:00 p.m., 10/15 persons of a tourist group were in the dhaba and they were attended upon by Naresh Kumar (attendant). There arose a dispute qua the freshness of the meals and the scuffle ensued. One of the persons from the tourist group went to the vehicle, brought a pistol and fired on her husband (Shri Param Jeet Singh). Shri Hansdeep was also hit with gun shot on his chest. Thereafter, all the persons fled away from the spot in their vehicle, having registration number of Uttar Pradesh. The husband of the petitioner and Shri Hansdeep was rushed to the CHC, Dharampur. The husband of the petitioner was declared dead and Shri Hansdeep was referred to PGI, Chandigarh. On the basis of the statement of the complainant, police registered a case and the investigation ensued. Postmortem examination on the corpse of the deceased was conducted. Police prepared the spot map and clicked photographs of the spot. CCTV footage was obtained and police recovered empty cartridges, sword like weapon, having blood, pieces of carton etc. During the course of investigation, it was unearthed that the Rahul Malik (petitioner herein) alongwith other accused persons fled away from the spot in vehicle, having registration No. UP14FT3871. The petitioner was arrested on 27.06.2016 and he was medically examined. Police collected the scientific evidence for analysis. Other accused persons were also arrested. Scientific samples collected from the spot were chemically examined in Forensic Science Laboratory, Junga. The petitioner was arrested on 27.06.2016 and he was medically examined. Police collected the scientific evidence for analysis. Other accused persons were also arrested. Scientific samples collected from the spot were chemically examined in Forensic Science Laboratory, Junga. CCTV footage was also examined, which shows the presence of the petitioner and the other accused persons on the spot. During the course of investigation, it was unearthed that the petitioner alongwith other accused persons was on tour to Dharamshala and Shimla and while returning they stopped in the dhaba of the deceased. The petitioner and the other accused persons were not satisfied with the food quality, so a quarrel started and the petitioner fired on the deceased. It has further come in the investigation that the petitioner is not eligible for appearing on examination of LL.B. 6th semester. As per the prosecution, challan stands presented in the Court and now the case is listed before the learned Trial Court on 17 and 18th April, 2019. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner was involved in a serious offence and in case he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice. The prosecution objected the petition on the ground that there exists prima facie or reasonable ground that the petitioner committed the murder of the deceased, the offence of which the petitioner is accused of is grave and there is possibility that the accused, in case enlarged on bail, may abscond. Simultaneously, the prosecution is objecting the bail application on the premises that in case the petitioner is enlarged on bail, he may try to influence the witness and there is possible danger of justice being thwarted by granting the petitioner bail. 3. I have heard the learned Senior Counsel for the petitioner, learned Additional Advocate General for the State, learned Senior Counsel for the complainant and gone through the record, including the police report, carefully. 4. The learned Senior Counsel for the petitioner has argued that the petitioner has to complete law, so he be enlarged on bail by exercising the discretionary powers vested in this Court. 4. The learned Senior Counsel for the petitioner has argued that the petitioner has to complete law, so he be enlarged on bail by exercising the discretionary powers vested in this Court. He has further argued that following the settled legal dictum of law the personal liberty of the petitioner, which has been guaranteed by Article 21 of the Constitution of India, should not be curtailed till the pendency of the case. He has argued that the petitioner is ready and willing to abide by the conditions, if any, imposed by this Court for granting bail and the petitioner is neither in a position to tamper with the prosecution evidence now in a position to flee from justice. In order to strengthen his case, the learned Senior Counsel has placed reliance on the following judicial pronouncements : 1. Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav & another, (2005) 2 SCC 42 ; 2. State of U.P. through CBI vs. Amarmani Tripathi, (2005) 8 SCC 21 ; 3. State of Kerala vs. Raneef, (2011) 1 SCC 784 ; 4. Sanjay Chandra vs. Central Bureau of Investigation, (2012) 1 SCC 40 ; 5. Dipak Shubhashchandra Mehta vs. Central Bureau of Investigation & another, (2012) 4 SCC 134 ; 6. Vinod Bhandari vs. State of Madhya Pradesh, (2015) 11 SCC 502 ; & 7. Dataram Singh vs. State of Uttar Pradesh & another, (2018) 3 SCC 22 . Conversely, learned Additional Advocate General has argued that there is reasonable ground to believe that the petitioner had committed the crime. He has further argued that the offence is grievous and in case the petitioner is enlarged on bail, he may abscond and may also influence the witnesses. He has further argued that bail application of the petitioner is required to be dismissed in the above backdrop. 5. Learned Senior Counsel appearing on behalf of the complainant has argued that the petitioner is main accused and has committed a serious offence. He has further argued that the petitioner in broad day light murdered the deceased and fled from the spot. He has argued that in case the petitioner is enlarged on bail, there is likelihood that he may abscond, as he is resident of Uttar Pradesh and he may also influence the witnesses and thwart justice, as the complainant party is being approached through intermediaries and is being pressurized. He has argued that in case the petitioner is enlarged on bail, there is likelihood that he may abscond, as he is resident of Uttar Pradesh and he may also influence the witnesses and thwart justice, as the complainant party is being approached through intermediaries and is being pressurized. He has argued that the petitioner is ineligible for appearing in the examination of LL.B. He has vehemently argued that in view of the nature and gravity of the offence and eminent danger of petitioner's fleeing from justice and also the witnesses being won over by the petitioner, the present bail application may be dismissed. In order to draw lateral support to his arguments, the learned Senior Counsel has placed reliance on the following judicial pronouncements: 1. Saint Asha Ram vs. State of Rajasthan, 2017 STPL 3185 SC; & 2. Prasanta Kumar Sarkar vs. Ashis Chatterjee & another, (2010) 14 SCC 496 . 6. In rebuttal the learned Counsel for the petitioner has argued that the petitioner cannot be kept behind the bars for an unlimited period. He has further argued that the petitioner is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so he may be enlarged on bail. 7. After hearing the learned Senior counsel and learned Additional Advocate General for the respective parties and after going through the law as cited by the learned Senior Counsel for the parties, it emerges that bail is sought on the ground that the personal liberty, as guaranteed under Article 21 of the Constitution of India, cannot be taken away. However, bail is opposed on the premise that a person can be deprived of personal liberty by the procedure established by law. Article 21 of the Constitution of India postulates that personal liberty of a person cannot be taken away, except in accordance with the procedure established by law. Learned Senior Counsel for the petitioner has argued that there is presumption of innocence at preconviction stage. Indeed, there is presumption of innocence of accused at pre-conviction stage, but a person is kept in custody for ensuring his availability to face trial and to receive the sentence, if passed. The preconviction custody and during trial custody is not punitive in nature, but preventive. Indeed, there is presumption of innocence of accused at pre-conviction stage, but a person is kept in custody for ensuring his availability to face trial and to receive the sentence, if passed. The preconviction custody and during trial custody is not punitive in nature, but preventive. A person can be taken in custody for non-bailable offence and can be kept in custody during the pendency of trial, such custody cannot be said to be curtailing or taking away the personal liberty of a person. A person can only be deprived personal liberty under the procedure established by law. The law, as cited by the learned Senior Counsel for the parties, has been considered. The gist of the above cited law is that the personal liberty of a person, as guaranteed under Article 21 of the Constitution of India, is to be respected, but within the confines of law. Section 302 IPC, for which the petitioner has been booked, is a serious offence. Thus, after analyzing the law, the following rudimentary principles have to be borne in mind by the Courts for granting or rejecting the bail application of an accused : (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 realeased 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. (Prasanta Kumar Sarkar vs. Ashis Chatterjee & another, (2010) 14 SCC 496 .) Thus, each bail application has to be examined on the touchstone of the above settled rudimentary principles. 8. Certainly, personal liberty is constitutional guarantee provided under Article 21 of the Constitution of India. However, Article 21 simultaneously excogitate that such liberty can be curtailed by the procedure established by law. Therefore, this Court has to examine the prayer of the petitioner on the above enumerated settled contours for granting bail. 9. 8. Certainly, personal liberty is constitutional guarantee provided under Article 21 of the Constitution of India. However, Article 21 simultaneously excogitate that such liberty can be curtailed by the procedure established by law. Therefore, this Court has to examine the prayer of the petitioner on the above enumerated settled contours for granting bail. 9. At this stage, after threadbare examination of the police record, viz-a-viz allegations against the petitioner, and without discussing the same and after examining the law cited by the learned Senior Counsel for the parties, this Court finds that there is reasonable ground to believe that the petitioner alongwith other accused persons was involved in the offence, the offence is of grave nature, there is possibility of petitioner's absconding, in case he is enlarged on bail and there is strong apprehension that he may influence the witnesses and try to thwart the justice. So, after analyzing the arguments of the learned Senior Counsel for the petitioner and also examining the law, the present is not a fit case where the judicial discretion to admit the petitioner on bail is required to be exercised in his favour. 10. In view of the above, the petition, which sans merits, deserves dismissal and is accordingly dismissed.