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Himachal Pradesh High Court · body

2019 DIGILAW 893 (HP)

Sonu Deshta v. State Of Himachal Pradesh

2019-07-08

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, J. By way of present petition filed under S.439 CrPC, prayer has been made on behalf of the petitioner for grant of regular bail in case FIR No. 69, dated 18.6.2019 under Ss. 341, 323 and 506 IPC and S.3(1)(s) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, registered at Police Station, Rohru, District Shimla, Himachal Pradesh. 2. Sequel to order dated 24.6.2019, Inspector Vikas Sharma, 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. Before adverting to the factual matrix of the case, it may be noticed that on 24.6.2019, bail petitioner surrendered before this Court and thereafter, this court, after taking him into custody, released him on bail in the FIR detailed above, subject to furnishing of personal bonds in the sum of Rs.50,000/- subject to the satisfaction of learned Additional Registrar (Judicial). Vide aforesaid order, this court also directed the bail petitioner to join the investigation as and when required by the investigating agency. 4. Mr. Kunal Thakur, learned Deputy Advocate General, on instructions of the Investigating Officer, fairly states that though pursuant to order dated 24.6.2019, bail petitioner has joined the investigation, but till date, he has not made available the Swift car bearing registration No.HP-10A7705. However, aforesaid statement having been made by learned Deputy Advocate General has been seriously disputed by learned counsel for the bail petitioner. Mr. Manoj Pathak, Advocate, on the instructions of his client, who is present in the court, states that he owns Car bearing registration No. HP- 10B-7705 and he was ready and willing to supply keys of the vehicle to the Dy.SP., but he refused to take the same. 5. Mr. Kunal Thakur, learned Deputy Advocate General states that investigation in the case is almost complete, save and except the recovery of vehicle in which bail petitioner alongwith other accused was traveling at the time of alleged incident. 6. Close scrutiny of the record reveals that on 18.6.2019, complainant Raman Resta, filed a complaint at Police Station, Rohru, alleging therein that on that day, at 9.30 pm, when he was going towards Samholi alongwith his friend Dinesh, his vehicle collided with another vehicle i.e. Trax Billu Badshah Rantari. 6. Close scrutiny of the record reveals that on 18.6.2019, complainant Raman Resta, filed a complaint at Police Station, Rohru, alleging therein that on that day, at 9.30 pm, when he was going towards Samholi alongwith his friend Dinesh, his vehicle collided with another vehicle i.e. Trax Billu Badshah Rantari. Complainant further alleged that at that time, a Swift Car came on the spot and occupants of the car started hurling abuses at the complainant. Complainant specifically alleged that the occupants of the car not only abused him but also called him by his caste. On the basis of aforesaid complaint, a formal FIR, as detailed herein above, came to be lodged against the bail petitioner. 7. Having heard learned counsel for the parties and perused the material available on record, this Court finds that the investigation in the case is complete, save and except, the car, registration number whereof has been taken note herein above, remains to be recovered from the bail petitioner, who states that at the time of alleged incident, he was neither driving the said Swift Car, nor was sitting in the same, however, he is ready and willing to hand over keys of car bearing registration No. HP-10B-7705. Since the bail petitioner has already made himself available for investigation, this court sees no reason for his custodial interrogation, as such, prayer made in the application at hand deserves to be allowed. Moreover, guilt, if any, of the bail petitioner is yet to be established on record by the prosecution by leading cogent and convincing evidence, as such, no fruitful purpose would be served in case freedom of bail petitioner is curtailed for an indefinite period during trial. 8. 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. 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. 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. 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." 9. 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 40 ; 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. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation, 2012 1 SCC 40 ; 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." 10. 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. 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. 11. 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." 12. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted." 12. 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. 13. In view of above, bail petitioner has carved out a case for himself and as such, present petition is allowed. Order dated 24.6.2019 is made absolute, subject to bail petitioner furnishing fresh bail bonds in the sum of Rs.1,00,000/- (Rs. One Lakh) with one local surety in the like amount, to the satisfaction of the Investigating Officer 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. (f) He shall hand over keys of car bearing registration No. HP-10B-7055 to the Investigating Officer by 11.00 am on 9.7.2019. 14. 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. 15. (f) He shall hand over keys of car bearing registration No. HP-10B-7055 to the Investigating Officer by 11.00 am on 9.7.2019. 14. 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. 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 petition alone. The petition stands accordingly disposed of.