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2020 DIGILAW 731 (HP)

Kashmir Singh v. State of Himachal Pradesh

2020-10-13

SANDEEP SHARMA

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JUDGMENT Sandeep Sharma, J. - Bail petitioner namely Kashmir Singh, who is behind the bars for more than 20 months, has approached this Court in the instant proceedings filed under Section 439 Cr.PC, for grant of regular bail in FIR No. 62/2019 dated 20.2.2019 under Sections 304, 201 of IPC and 27, 30- 54-59 of Arms Act, registered at Police Station Balh, District Mandi, Himachal Pradesh. 2. Sequel to order dated 29.09.2020, respondent-State has filed Status report, perusal whereof reveals that on 20.02.2019, complainant Smt. Satya Devi, who happened to be the wife of deceased, Whether the reporters of the local papers may be allowed to see the judgment? lodged a complaint at Police Station Balh, District Mandi, Himachal Pradesh, alleging therein that since her husband, who works with contractor, namely, Sh. Jitender Kumar did not return home till late evening, she along with her neighbours went towards village Dhanu to search her husband. She alleged that in the way her husband was found lying on the road and he was bleeding. Complaint with the help of persons accompanying her, took her husband to Medical College, Ner Chowk, Mandi, where doctor declared him brought dead. Complainant also alleged that she found 8 to 9 marks of injuries caused on the body of her husband on account of gun pellets. In the aforesaid background, FIR detailed above, came to be lodged. 3. During investigation, police directed the Pradhans of nearby Panchayats to inform all Arm licence holders to deposit their weapon in the police station. Allegedly, on 22nd February, 2019, persons, namely, Thakur Singh, Parm Devi, Aman Thakur, Goverdhan and Surender Pal, who had come to deposit their guns, disclosed to the police that on 19th February, 2019, present bail petitioner, had fired in Mehsera Forest from his licensed gun. On the basis of aforesaid disclosure made by the persons, named hereinabove, present bail petitioner came to be arrested on 22nd February, 2019. During the investigation, bail petitioner allegedly disclosed to the police that on 19 February, 2019, he had used his gun for hunting, but unfortunately, pellets fired from his gun hit the husband of the complainant. He allegedly also disclosed to the police that after having heard the cries of deceased, he got frightened and fled away from the spot. 4. During the investigation, bail petitioner allegedly disclosed to the police that on 19 February, 2019, he had used his gun for hunting, but unfortunately, pellets fired from his gun hit the husband of the complainant. He allegedly also disclosed to the police that after having heard the cries of deceased, he got frightened and fled away from the spot. 4. In the aforesaid background, case under Sections 304, 201 of IPC and 27, 30-54-59 of Arms Act, came to be registered against the bail petitioner on 20th February, 2019 and since then, he is behind the bars. Prior to filing of the petition at hand, petitioner approached this Court by way of similar petitions on two occasions, but both were dismissed as withdrawn with liberty reserved to the petitioner to file appropriate petition before the appropriate Court of law at an appropriate stage. However, while permitting petitioner to withdraw aforesaid petitions, Court below was also directed to conclude the trial expeditiously, preferably on or before 31st December, 2019 & 30 June, 2020, respectively, but since, learned Court below has been not able to do the needful within the time stipulated by this Court, petitioner has approached this Court in the instant proceedings, praying therein for grant of regular bail. 5. Ms. Sonil Jaswal, Learned Deputy Advocate General, while fairly admitting factum with regard to filing of Challan in the competent Court of law, contends that though nothing remains to be recovered from the bail petitioner, but but keeping in view the gravity of offence alleged to have been committed by the bail petitioner, he does not deserve to be released on bail and as such, prayer made on behalf of the bail petitioner may be rejected. Learned Deputy Advocate General, further contends that it stands duly established on record that bail petitioner knowing-fully well that deceased husband of complainant has suffered injuries on account of gun shot fired by him, fled away from the spot leaving deceased husband of the complainant in an injured condition. She also contends that had petitioner took the deceased husband of the complainant to the nearby hospital probably, he could be saved by the doctors. She also contends that had petitioner took the deceased husband of the complainant to the nearby hospital probably, he could be saved by the doctors. Lastly, learned Deputy Advocate General contends that since material prosecution witnesses are yet to be examined, it may not be in the interest of justice to enlarge the bail petitioner on bail, who in the event of his being enlarged on bail, may not only flee from justice, rather, may make an attempt to tamper with prosecution evidence and as such his prayer for grant of bail may not be accepted. 6. Having heard learned counsel for the parties and perused the material available on record, this Court finds that on 20th February, 2019, deceased husband of the complainant suffered injuries on account of gun shot, allegedly fired by the present bail petitioner. Allegedly, bail petitioner in his statement to police admitted the factum with regard to firing of gun shot from his gun, but he has stated to the police that gun shot fired by him was not aimed at deceased husband of complainant, rather same was fired at wild animal, but unfortunately, it hit husband of the complainant. While admitting the aforesaid guilt of him, petitioner has allegedly admitted that he left deceased husband of complainant in injured condition in the forest. On the basis of aforesaid statement given by the bail petitioner during his interrogation, case under Sections 304, 201 of IPC and 27, 30-54-59 of Arms Act stands registered against him. However, complicity, if any, of bail petitioner cannot be concluded merely on the basis of the aforesaid statements, if any, given by him to the police, rather, guilt, if any, of the bail petitioner is to be proved in accordance with law by Investigating Agency, by leading cogent and convincing evidence. 7. Leaving everything aside, this Court finds from the record that till date only one prosecution witness has been examined out of 32 witnesses and as such, considerable time is likely to be consumed in the conclusion of the trial. 7. Leaving everything aside, this Court finds from the record that till date only one prosecution witness has been examined out of 32 witnesses and as such, considerable time is likely to be consumed in the conclusion of the trial. As has been taken note hereinabove, bail petitioner before filing petition at hand, approached this Court on two occasions, but bail petitions having been filed by him, were dismissed as withdrawn with the directions to learned Court below to conclude the trial expeditiously, but despite that no substantial progress has been made in the trial, which is further likely to be delayed on account of conditions prevailing in the wake of Covid-19 pandemic. Freedom of the bail petitioner, who is already behind the bars for more than 20 months cannot be curtailed for an indefinite period during trial, especially, when nothing remains to be recovered from him. Trial in the case though has commenced, but as has been observed hereinabove, conclusion thereof would take considerable time and as such, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial. Apprehension expressed by learned Deputy Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting him to stringent conditions. Otherwise also Hon'ble Apex Court and this court have held in catena of judgments, that till the time, guilt of a person is proved, he is deemed to be innocent. 8. 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. 9. 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. 9. 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." 10. 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." 11. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted." 11. 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. 12. 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 ). 13. 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 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. 13. 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 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. 14. 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. 14. In view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 1,00,000/- with one surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate/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 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 handover passport to the Investigating Agency. (f) He shall make himself available in the concerned police station i.e. Haroli twice a week at 11:00AM sharp. 15. 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. 16. 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 petition stands accordingly disposed of. Copy dasti.