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2019 DIGILAW 758 (HP)

Satish Verma v. State Of Himachal Pradesh

2019-06-24

SANDEEP SHARMA

body2019
JUDGMENT Sandeep Sharma, J. - Apprehending their arrest, bail petitioners as named herein above, have approached this Court in the instant proceedings filed under Section 438 of Cr.PC., for grant of anticipatory bail in case FIR No. 90/19, dated 20.5.2019, under Sections 341, 170, 171, 452, 323, 395 and 120 B of IPC at PS Dhalli, registered at PS Dhalli, District Shimla, H.P. 2. Sequel to order dated 21.6.2019, ASI Tek Ram, I/O P.S. Dhalli, Shimla, District Shimla, H.P., has come present alongwith records. He has also caused presence of the complainant namely Kuldeep as well as two victims as per directions contained in order dated 21.6.2019. Mr. Kunal Thakur, learned Deputy Advocate General, states that since detailed status report already stands filed on the previous date, he does not intend to file fresh status report. 3. Close scrutiny of record/status report reveals that on 20.5.2019, complainant Kuldeep made a statement under Section 154 Cr.PC that on 29.4.2019, at 3:00 pm, he came to Deepak Guest House after having received a telephonic call from his friend namely Dinesh. Allegedly at 6:00 pm on 29.4.2019, person namely Madan Pandey came to the said guest house alongwith two other persons, whereafter they all consumed liquor at 11:30 pm. While those persons were going towards road, five persons in police uniform came towards Deepak Guest house and stopped complainant as well as other persons for checking. Allegedly, the aforesaid five persons, who had come in police uniform, recovered Rs. 2,00,000/- from the pockets of the complainant and two other persons and thereafter, they fled away. On the basis of aforesaid complaint, having been made by the complainant, FIR as detailed herein above, came to be lodged against the bail petitioners. 4. On 21.6.2019, Mr. Ashwani Sharma, learned Additional Advocate General on instructions of Investigating Officer informed this Court that though investigation in the case is complete, but since money allegedly taken by the petitioner has not been returned back, they may not be enlarged on bail at this stage. Learned counsel for the petitioner(s), on instructions, of the petitioners informed that money allegedly taken by the petitioners stands already refunded to the complainant, who has otherwise filed appropriate proceedings in the Court for quashing of FIR. Learned counsel for the petitioner(s), on instructions, of the petitioners informed that money allegedly taken by the petitioners stands already refunded to the complainant, who has otherwise filed appropriate proceedings in the Court for quashing of FIR. This Court with a view to confirm aforesaid statement made by the learned counsel, directed the Investigating Officer to cause the presence of complainant Kuldeep Kumar, who is present in the Court. He stated that after lodging of FIR at his behest, parties have settled their dispute inter-se them amicably. He stated that he alongwith other persons have already received amount allegedly taken by the petitioners and as such, he shall have no objection in case FIR lodged at his behest, is ordered to be quashed and set-aside. Two other victims namely Dinesh and Jagdish, have also acknowledged factum with regard to compromise inter-se parties. Prayer with regard to quashing of FIR made by the petitioners certainly cannot be looked into in these proceedings and as such, in this regard, respondent complainant is at liberty to approach the appropriate court of law in appropriate proceedings. However having taken note of the fact that in terms of order dated 27.5.2019, all the bail petitioners have made themselves available for investigation, which fact has been fairly admitted by the learned Deputy Advocate General coupled with the fact that parties have already settled their dispute amicably inter-se them, this Court sees no reason for custodial interrogation of the bail petitioners. Moreover, offence, if any, committed by them is yet to be established on record by the prosecution by leading cogent and convincing evidence and as such, freedom of petitioners cannot be curtailed for an indefinite period, especially when the amount allegedly taken by them stands re-paid. 5. 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. 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. 6. The Hon''ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation,2012 1 SCC 49 ; 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." 7. In Manoranjana Sinh Alias Gupta versus CBI, (2017) 5 SCC 218 , The Hon''ble Apex Court has held as under:- " This Court in Sanjay Chandra v. CBI, 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 or 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 to 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 ad 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 the 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." 8. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted." 8. 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. 9. Reliance is placed on judgment passed by the Hon''ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731 , relevant para whereof has been reproduced herein below:- "11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731 ; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616 Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569 ). 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 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. 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 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. 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. 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. 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. 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. Consequently, in view of the above, order(s) dated 27.5.2019, passed by this Court, is made absolute, subject to 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 him 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. 12. It is clarified that if the petitioners misuse their 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. 13. Any observations made hereinabove shall not be construed to be a reflection on the merits of the cases and shall remain confined to the disposal of these applications alone. The bail petitions stand disposed of accordingly. Copy dasti.