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Himachal Pradesh High Court · body

2020 DIGILAW 142 (HP)

Sumer Chandel v. State Of H. P.

2020-01-30

JYOTSNA REWAL DUA

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JUDGMENT Jyotsna Rewal Dua, J. (Oral) - The instant petition has been moved under Section 439 of the Code of Criminal Procedure for grant of regular bail, in FIR No.15 of 2020, dated 18.01.2020, under Sections 451, 323, 504, 506, 34 of the Indian Penal Code and Section 3(I) (r)(s) of Scheduled Caste and Scheduled Tribes (Prevision of Atrocities) Act, 1989 , registered at Police Station Palampur, District Kangra, H.P. 2. Today, Amit Sharma, Dy-SP/SDPO, Palampur, District Kangra, is present alongwith the record and status report, which is taken on record. 3. I have heard Mr. Mukul Sood, learned counsel for the petitioner and Mr. Ranjan Sharma, learned Additional Advocate General, for the respondent/State and scrupulously gone through the relevant record for the adjudication of the instant petition. 4. The status report and record so produced reveal that:- a complaint was received on 18.1.2020, from one Santosh Kumar to the effect that the bail petitioner alongwith with one more person, who was employee of the bail petitioner had come to the shop of the complainant; entered into a scuffle with him; gave beatings to him; used words prohibited under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989; attempted to use knife against the complainant. On these allegations, the afore- mentioned FIR was registered and investigation was carried out. During investigation involvement of other person/employee/Sachin Kumar stated to be accompanying the bail petitioner was not established and therefore, Section 34 IPC initially incorporated in the aforementioned FIR was deleted. The bail petitioner is in judicial custody w.e.f. 24.01.2020. Investigation is stated to be under process, but nothing is to be recovered from the bail petitioner. Learned Additional Advocate General submits that the bail petitioner should not be enlarged on bail as there is a chance of his influencing the witnesses and tempering with the evidence. Status report mentions that one another Case No. 237/2009, dated 8.10.2009, against the bail petitioner under Sections 341, 323, 504, IPC , is presently pending before Gram Panchayat Chandpur, Tehsil Palampur District Kangra. 5. It is apt to refer to guidelines for grant/refusal of bails, reiterated by the Honble Apex Court in Criminal Appeal No.1603 of 2019, titled Shri P. Chidambaram Vs. Central Bureau of Investigation, decided on 22.10.2019, relevant segments whereof are reproduced hereinafter:- '17. 5. It is apt to refer to guidelines for grant/refusal of bails, reiterated by the Honble Apex Court in Criminal Appeal No.1603 of 2019, titled Shri P. Chidambaram Vs. Central Bureau of Investigation, decided on 22.10.2019, relevant segments whereof are reproduced hereinafter:- '17. Expression of prima facie reasons for granting or refusing to grant bail is a requirement of law especially where such bail orders are appealable so as to indicate application of mind to the matter under consideration and the reasons for conclusion. Recording of reasons is necessary since the accused/prosecution/victim has every right to know the reasons for grant or refusal to grant bail. This will also help the appellate court to appreciate and consider the reasonings for grant or refusal to grant bail. But giving reasons for exercise of discretion in granting or refusing to grant bail is different from discussing the merits or demerits of the case. At the stage of granting bail, an elaborate examination of evidence and detailed reasons touching upon the merit of the case, which may prejudice the accused, should be avoided. Observing that 'at the stage of granting bail, detailed examination of evidence and elaborate documentation of the merits of the case should be avoided', in Niranjan Singh, it was held as under:- '3. Detailed examination of the evidence and elaborate documentation of the merits should be avoided while passing orders on bail applications. No party should have the impression that his case has been prejudiced. To be satisfied about a prima facie case is needed but it is not the same as an exhaustive exploration of the merits in the order itself.' 22. The jurisdiction to grant bail has to be exercised on the basis of the well- settled principles having regard to the facts and circumstances of each case. To be satisfied about a prima facie case is needed but it is not the same as an exhaustive exploration of the merits in the order itself.' 22. The jurisdiction to grant bail has to be exercised on the basis of the well- settled principles having regard to the facts and circumstances of each case. The following factors are to be taken into consideration while considering an application for bail:- (i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations (vide Prahlad Singh Bhati v. NCT, Delhi and another (2001) 4 SCC 280 ). There is no hard and fast rule regarding grant or refusal to grant bail. Each case has to be considered on the facts and circumstances of each case and on its own merits. The discretion of the court has to be exercised judiciously and not in an arbitrary manner. At this stage itself, it is necessary for us to indicate that we are unable to accept the contention of the learned Solicitor General that 'flight risk' of economic offenders should be looked at as a national phenomenon and be dealt with in that manner merely because certain other offenders have flown out of the country. The same cannot, in our view, be put in a straight-jacket formula so as to deny bail to the one who is before the Court, due to the conduct of other offenders, if the person under consideration is otherwise entitled to bail on the merits of his own case. Hence, in our view, such consideration including as to 'flight risk' is to be made on individual basis being uninfluenced by the unconnected cases, more so, when the personal liberty is involved. 23. In Kalyan Chandra Sarkar v. Rajesh Ranjan and another (2004) 7 SCC 528 , it was held as under:- '11. Hence, in our view, such consideration including as to 'flight risk' is to be made on individual basis being uninfluenced by the unconnected cases, more so, when the personal liberty is involved. 23. In Kalyan Chandra Sarkar v. Rajesh Ranjan and another (2004) 7 SCC 528 , it was held as under:- '11. The law in regard to grant or refusal of bail is very well settled.The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598 and Puran v. Rambilas (2001) 6 SCC 338 .) Referring to the factors to be taken into consideration for grant of bail, in Jayendra Saraswathi Swamigal v. State of Tamil Nadu (2005) 2 SCC 13 , it was held as under:- '16. .The considerations which normally weigh with the court in granting bail in non-bailable offences have been explained by this Court in State v. Capt. Jagjit Singh AIR 1962 SC 253 and Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118 and basically they are the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case' 24. After referring para (11) of Kalyan Chandra Sarkar, in State of U.P. through CBI v. Amarmani Tripathi (2005) 8 SCC 21 , it was held as under:- '18. It is well settled that the matters to be considered in an application for bail are (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 charge; (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 tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v.NCT, Delhi (2001) 4 SCC 280 and Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118 ]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused..'. Honble Apex Court in 2019(1) Cri.CC 163 , titled Sangitaben Shaileshbhai Datanta Vs. State of Gujarat and anr., held as under:- '.while adjudicating a bail application, Section 439 of the Code of Criminal Procedure, 1973 is the guiding principle wherein Court takes into consideration, inter alia, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds. Each criminal case presents its own peculiar factual matrix, and therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. However, the court has to only opine as to whether there is prima facie case against the accused. The Court must not undertake meticulous examination of the evidence collected by the police, or rather order specific tests as done in the present case..' 5. However, the court has to only opine as to whether there is prima facie case against the accused. The Court must not undertake meticulous examination of the evidence collected by the police, or rather order specific tests as done in the present case..' 5. Considering nature of allegations levelled against the bail petitioner, the investigation & the evidence available on record, in my considered opinion, no fruitful purpose will be served by continuing the petitioner in judicial custody. He is permanent resident of village and post office Chandpur Tehsil Palampur, District Kangra, Himachal Pradesh, his presence can always be secured at Trial. Therefore it is ordered that the petitioner, in afore-mentioned FIR, be released on bail on his furnishing personal bond in the sum of Rs.50.000/- (rupees Fifty thousand only) with one local surety in the like amount to the satisfaction of learned Trial Court, subject to following conditions:- 1. That the petitioner is directed to join investigation of case as and when called for by the Investigating Officer in accordance with law. 2. That the petitioner shall not hamper the investigation. 3. That the petitioner undertakes not to contact the complainants, to threaten or browbeat them or to use any pressure tactics in any manner whatsoever. 4. That the petitioner shall not leave India without prior permission of the Court. 5. That the petitioner undertakes not to make any inducement threat or promise, directly or indirectly, to the investigating officer or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer or tamper with the evidence. 6. It shall be open for the prosecution to move for cancellation of the bail in case the petitioner abuses the liberty granted and breaches the conditions of bail. Any observation made hereinabove shall not be taken as an expression on merits of the case and learned Trial Court shall decide the matter uninfluenced by any of observations made hereinabove. Accordingly, the petition is disposed of alongwith pending miscellaneous application(s), if any. Copy dasti.