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2023 DIGILAW 603 (HP)

Sidharth Sharma v. State of Himachal Pradesh

2023-12-28

RAKESH KAINTHLA

body2023
JUDGMENT : Rakesh Kainthla, J. The petitioner has filed the present petition for seeking regular bail. It has been asserted that FIR No. 06/2019 dated 10.02.2019 was registered at Police Station Nerwa, District Shimla for the commission of offences punishable under Sections 20, 25 and 29 of Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’). The petitioner is innocent and he was falsely implicated. There is no reasonable ground to believe that the petitioner has committed the offence. The police concocted a false case against the petitioner. The petitioner is a permanent resident of Ludhiana. His bail was cancelled by the learned Trial Court due to non-appearance and since then he is in judicial custody. The petitioner is the sole breadwinner of the family. He would abide by all the terms and conditions, which may be imposed by the Court. Hence, the petition. 2. The petition is opposed by filing a status report, asserting that the police party was on patrolling duty on 10.02.2019 when a vehicle bearing registration no. HP01-D-5875 came from Fediz Bridge at 3:30 pm. The driver revealed his name as Sandeep. The occupant revealed their names as Sidharth Sharma and Naresh. The police searched the vehicle and recovered a carry bag containing 852 grams of charas. The police arrested the occupants and seized the charas. As per the result of the analysis, the substance was found to be charas containing 27.77% w/w resin in it. The police presented a challan against the petitioner on 30.05.2019 before the Court of learned Additional Sessions Judge, Shimla. The petitioner did not appear before the learned Trial Court. Hence, the proceedings under Section 82 of Cr.P.C. were initiated against him. The petitioner had even tried to run away from the custody of the police and FIR No. 199/2023 dated 18.09.2023 was registered against him for the commission of an offence punishable under Section 224 of IPC. The petitioner had absconded and he is not entitled to bail; hence, it was prayed that the present petition be dismissed. 3. I have heard Mr. Manoj Negi, learned counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General for the respondent/State. 4. Mr. Manoj Negi, learned counsel for the petitioner submitted that the petitioner was falsely implicated. He could not appear before the Court due to circumstances beyond his control. 3. I have heard Mr. Manoj Negi, learned counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General for the respondent/State. 4. Mr. Manoj Negi, learned counsel for the petitioner submitted that the petitioner was falsely implicated. He could not appear before the Court due to circumstances beyond his control. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail. 5. Mr. Prashant Sen, learned Deputy Advocate General, for the respondent/State submitted that the petitioner had absconded and proceedings under Section 82 of Cr.P.C. had to be initiated against him. He even tried to run away from the custody. Therefore, the petitioner is not likely to attend the trial, in case he is released on bail; therefore, he prayed that the petition be dismissed. 6. I have given considerable thought to the rival submissions at the bar and have gone through the record carefully. 7. The Hon’ble Supreme Court discussed the parameters for granting the bail in Bhagwan Singh v. Dilip Kumar, 2023 SCC OnLine SC 1059 as under:- 12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that; (a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations; (b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail. (c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge. (c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge. (d) Frivility of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail. 13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts have been explained in the following words: “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 : 2002 SCC (Cri) 688] and Puran v. Rambilas [ (2001) 6 SCC 338 : 2001 SCC (Cri) 1124].)” 8. A similar view was taken in State of Haryana vs Dharamraj 2023 SCC Online 1085, wherein it was observed: 7. A foray, albeit brief, into relevant precedents is warranted. A similar view was taken in State of Haryana vs Dharamraj 2023 SCC Online 1085, wherein it was observed: 7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 . In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 , the relevant principles were restated thus: ‘9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering 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 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. The present case has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 10. It was specifically stated in the status report that the petitioner absconded and the proceedings under Section 82 of Cr.PC. were initiated against him. It was laid down by the Hon’ble Supreme Court in State of Orissa Versus Mahimanand Mishra (2018) 10 SCC 516 that while considering a bail application, the Court should also look at the possibility of the appearance of the accused to face trial. When the accused had absconded and was arrested after a lookout circular was issued, he was not entitled to bail. 11. When the accused had absconded and was arrested after a lookout circular was issued, he was not entitled to bail. 11. It was laid down by the Hon’ble Supreme Court in Talab Haji Hussain Versus Madhukar Purshottam Mondkar AIR 1958 SC 376 that the primary object of the Criminal Procedure is to ensure a fair trial and where the progress of a trial is obstructed by the accused, the Court is justified in taking him into custody. It was observed:- “[6] Now it is obvious that the primary object of criminal procedure is to ensure a fair trial of accused persons. Every criminal trial begins with the presumption of innocence in favour of the accused, and provisions of the Code are so framed that a criminal trial should begin with and be throughout governed by this essential presumption, but a fair trial has naturally two objects in view; it must be fair to the accused and must also be fair to the prosecution. The test of fairness in a criminal trial must be judged from this dual point of view. It is therefore of the utmost importance that, in a criminal trial, witnesses should be able to give evidence without any inducement or threat either from the prosecution or the defence. A criminal trial must never be so conducted by the prosecution as would lead to the 'conviction of an innocent person; similarly, the progress of a criminal trial must not be obstructed by the accused so as to lead to the acquittal of a really guilty offender. The acquittal of the innocent and the conviction of the guilty are the objects of a criminal trial and so there can be no possible doubt that, if any conduct on the part of an accused person is likely to obstruct a fair trial, there is an occasion for the exercise of the inherent power of the High Courts to secure the ends of justice. There can be no more important requirement of the ends of justice than the uninterrupted progress of a fair trial; and it is for the continuance of such a fair trial that the inherent powers of the High Courts are sought to be invoked by the prosecution in cases where it is alleged that accused persons, either by suborning or intimidating witnesses, are obstructing the smooth progress of a fair trial, Similarly, if an accused person who is released on bail jumps bail and attempts to run to a foreign country to escape the trial, that again would be a case where the exercise of the inherent power would be justified in order to compel the accused to submit to a fair trial and not to escape its consequences by taking advantage of the fact that he has been released on bail and by absconding to another country. In other words, if the conduct of the accused person subsequent to his release on bail puts in jeopardy the progress of a fair trial itself and if there is no other remedy which can be effectively used against the accused person, in such a case the inherent power of the High Court can be legitimately invoked. In regard to non-bailable offences, there is no need to invoke such power because S. 497 (5) specifically deals with such cases. The question which we have to decide in this case is whether the exercise of inherent power under S. 561-A against persons accused of bailable offences, who have been released on bail, is contrary to or inconsistent with the provisions of S. 496 of the Code of Criminal Procedure.” 12. In the present case, the petitioner has obstructed the fair trial of the case due to his conduct; as such he is not entitled to a concession of bail. 13. The petitioner had tried to run away from the custody and an FIR has been registered against him. His conduct clearly shows that in case, he is released on bail, he is not likely to attend the trial. Final order: 14. Keeping in view these circumstances, the petitioner is not entitled to bail, hence the present petition fails and the same is dismissed. 15. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.