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2025 DIGILAW 27 (HP)

Satish Kumar v. State of Himachal Pradesh

2025-01-03

RAKESH KAINTHLA

body2025
JUDGMENT : Rakesh Kainthla, J. The petitioner has filed the present petition for the cancellation of the bail granted to the respondent (accused before the learned Trial Court) by learned Sessions Judge (Bilaspur) (learned Trial Court) in Bail Application No.115/22 of 2024 on 28.08.2024. It has been asserted that the petitioner is the witness/injured and son of the deceased in FIR No.51/2022. The respondent No.2/accused inflicted blows on the informant’s and the petitioner’s head. The informant and her family members sustained injuries. The injured Desh Raj was taken to PGIMER, Chandigarh, where he succumbed to his injuries. The respondent No.2-accused filed a bail application before learned Sessions Judge Bilaspur, which was allowed by learned Sessions Judge on 28.08.2024. Learned Sessions Judge failed to consider the status report and relied upon the statement of Gurmail Singh. He failed to consider the evidence of the injured and other eyewitnesses. The respondent No.2/accused had taken the axe from Puneet Kumar and caused injuries to the petitioner. Learned Sessions Judge granted bail in a heinous and grave crime of murder. The respondent No.2/accused had filed a bail petition, Cr.MP(M) No. 3160 of 2023, which was dismissed by this Court on 11.01.2024. There was no change in the circumstance, and learned Sessions Judge erred in granting the bail; therefore, it was prayed that the present petition be allowed and that respondent No.2/accused be taken into custody after cancelling his bail. 2. The police filed a status report asserting that informant Giano Devi made a report to the police that she had a dispute over the land with Kunti Devi. Many quarrels had taken place between them. Kunti Devi came to the informant’s land on 04.02.2022 and threatened to kill her. Puneet also came to the spot and inflicted injuries on the head of Deshraj with an Axe. The petitioner inflicted a blow on the informant’s head and also inflicted a blow with Axe on the head of Satish. The informant and her family members sustained injuries. Gurmail and Amar Nath came to the spot and rescued the informant. The police registered the F.I.R. and conducted the investigation. As per Medico Legal Certificate, Giano Devi and Satish Kumar had sustained injuries with a sharp-edged weapon. Deshraj was taken to PGI, Chandigarh, for his treatment. He succumbed to his injuries. Challan was prepared and presented before the competent Court. The police registered the F.I.R. and conducted the investigation. As per Medico Legal Certificate, Giano Devi and Satish Kumar had sustained injuries with a sharp-edged weapon. Deshraj was taken to PGI, Chandigarh, for his treatment. He succumbed to his injuries. Challan was prepared and presented before the competent Court. As per the post-mortem report, the death was caused by craniocerebral damage and laceration of the right lung consequent upon blunt impact over the head and chest, which is sufficient in the ordinary course of nature to cause death. The prosecution has cited 43 witnesses, out of whom 17 have been examined. The matter has been listed on 14.01.2025 and 17.01.2025. 3. I have heard Mr H.S. Rana, learned counsel for the petitioner, Mr. Lokender Kutlehria, learned Additional Advocate General, for respondent No.1/State and Mr. Rajiv Rai, learned counsel for respondent No.2/accused. 4. Mr. H.S. Rana, learned counsel for the petitioner, submitted that learned Sessions Judge erred in granting bail to the respondent/accused No.2. He relied upon the judgments of Hon’ble Supreme Court in Gurcharan Singh versus State, 1978 (118) SCC (1), Jagjeet Singh v. Ashish Mishra @ Monu (2022) 9 SCC 321 and Ajwar VS. Waseem and anr, 2024:INSC:438 in support of his submission. 5. Mr. Lokender Kutlehria, learned Additional Advocate General for respondent No.1/State, submitted that learned Sessions Judge erred in granting the bail and not considering the status report filed by the prosecution. He also prayed that the present petition be allowed and the bail granted to respondent No.2/accused be cancelled. 6. Mr Rajiv Rai, learned counsel for respondent No.2/accused, submitted that the learned Sessions Judge had granted the bail due to the change in circumstances and after noticing the statements of the witnesses who were examined by the Court; there is no infirmity passed by the learned Trial Court. He prayed that the present petition be dismissed. 7. I have given considerable thought to the submissions made at the bar and have gone through the record carefully. 8. The Hon’ble Supreme Court held in Ajwar v. Waseem (2024) 10 SCC 768 : 2024 SCC OnLine SC 974 that the bail, once granted, should not be cancelled mechanically however, an un- reasoned and perverse order is open to interference by the Superior Court. The bail can be cancelled if there are serious allegations against the accused. It was observed at page 783: “Relevant parameters for granting bail 26. The bail can be cancelled if there are serious allegations against the accused. It was observed at page 783: “Relevant parameters for granting bail 26. While considering as to whether bail ought to be granted in a matter involving a serious criminal offence, the Court must consider relevant factors like the nature of the accusations made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the role attributed to the accused, the criminal antecedents of the accused, the probability of tampering of the witnesses and repeating the offence, if the accused are released on bail, the likelihood of the accused being unavailable in the event bail is granted, the possibility of obstructing the proceedings and evading the courts of justice and the overall desirability of releasing the accused on bail. [Refer: Chaman Lal v. State of U.P. [Chaman Lal v. State of U.P. , (2004) 7 SCC 525 : 2004 SCC (Cri) 1974]; Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 : 2004 SCC (Cri) 1977]; Masroor v. State of U.P. [Masroor v. State of U.P., (2009) 14 SCC 286 : (2010) 1 SCC (Cri) 1368]; Prasanta Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765]; Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527]; Anil Kumar Yadav v. State (NCT of Delhi) [Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129 : (2018) 3 SCC (Cri) 425]; Mahipal v. Rajesh Kumar [Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 : (2020) 1 SCC (Cri) 558] .] 27. It is equally well settled that bail, once granted, ought not to be cancelled in a mechanical manner. However, an unreasoned or perverse order of bail is always open to interference by the superior court. If there are serious allegations against the accused, even if he has not misused the bail granted to him, such an order can be cancelled by the same Court that has granted the bail. However, an unreasoned or perverse order of bail is always open to interference by the superior court. If there are serious allegations against the accused, even if he has not misused the bail granted to him, such an order can be cancelled by the same Court that has granted the bail. Bail can also be revoked by a superior court if it transpires that the courts below have ignored the relevant material available on record or not looked into the gravity of the offence or the impact on the society resulting in such an order. In P v. State of M.P. [P v. State of M.P., (2022) 15 SCC 211 ] decided by a three-judge Bench of this Court [authored by one of us (Hima Kohli, J.)] has spelt out the considerations that must weigh with the Court for interfering in an order granting bail to an accused under Section 439(1)CrPC in the following words : (SCC p. 224, para 24) “24. As can be discerned from the above decisions, for cancelling bail once granted, the court must consider whether any supervening circumstances have arisen or the conduct of the accused post grant of bail demonstrates that it is no longer conducive to a fair trial to permit him to retain his freedom by enjoying the concession of bail during trial [ Dolat Ram v. State of Haryana, (1995) 1 SCC 349 : 1995 SCC (Cri) 237 ]. To put it differently, in ordinary circumstances, this Court would be loathe to interfere with an order passed by the court below granting bail, but if such an order is found to be illegal or perverse or premised on material that is irrelevant, then such an order is susceptible to scrutiny and interference by the appellate court.” Considerations for Setting Aside Bail Orders 28. The considerations that weigh with the appellate court for setting aside the bail order on an application being moved by the aggrieved party include any supervening circumstances that may have occurred after granting relief to the accused, the conduct of the accused while on bail, any attempt on the part of the accused to procrastinate, resulting in delaying the trial, any instance of threats being extended to the witnesses while on bail, any attempt on the part of the accused to tamper with the evidence in any manner. We may add that this list is only illustrative and not exhaustive. However, the court must be cautious that at the stage of granting bail, only a prima facie case needs to be examined, and detailed reasons relating to the merits of the case that may cause prejudice to the accused ought to be avoided. Suffice it to state that the bail order should reveal the factors that have been considered by the Court for granting relief to the accused. 29. In Jagjeet Singh [Jagjeet Singh v. Ashish Mishra, (2022) 9 SCC 321 : (2022) 3 SCC (Cri) 560] , a three-judge Bench of this Court has observed that the power to grant bail under Section 439CrPC is of wide amplitude and the High Court or a Sessions Court, as the case may be, is bestowed with considerable discretion while deciding an application for bail. But this discretion is not unfettered. The order passed must reflect the due application of the judicial mind following well-established principles of law. In the ordinary course, courts would be slow to interfere with the order where bail has been granted by the courts below. But if it is found that such an order is illegal or perverse or based upon utterly irrelevant material, the appellate court would be well within its power to set aside and cancel the bail. (Also refer: Puran v. Rambilas [Puran v. Rambilas, (2001) 6 SCC 338 : 2001 SCC (Cri) 1124]; Narendra K. Amin v. State of Gujarat [Narendra K. Amin v. State of Gujarat, (2008) 13 SCC 584 : (2009) 3 SCC (Cri) 813] .) 9. A perusal of the record shows that this Court had held while deciding Cr.MP(M) No. 3160 of 2023 that Kailash, respondent No.2, came and hit Satish with an axe. The Court held that the accused were armed with deadly weapons. They were acting in concert, and they were liable for the commission of an offence punishable under Section 302, read with Section 34 of IPC. 10. Learned Sessions Judge held in para 7 of the judgment that Gurmail Singh (PW8) stated that he saw Desh Raj having been hit. He had taken the axe from the hand of Kailash. The deceased was hit by Puneet with an axe. PW1-Satish stated that the present bail petitioner had hit him with an axe on his left arm and his head. He had taken the axe from the hand of Kailash. The deceased was hit by Puneet with an axe. PW1-Satish stated that the present bail petitioner had hit him with an axe on his left arm and his head. No overt act regarding hitting Desh Raj had come on record. The accused had only hit Satish (PW1), and the injury was found to be simple. This was a change in the circumstances. Consequently, the learned Sessions Judge released respondent No.2/accused on bail. 11. Learned Sessions Judge conveniently ignored the finding recorded by this Court that the petitioner would be liable by virtue of Section 34 of IPC because he was acting in concert with the co-accused. No finding was recorded by the learned Sessions Judge that the petitioner cannot be held liable by invoking Section 34 of IPC. Learned Sessions Judge concentrated only on the injuries sustained by Puneet and ignored the law discussed by this court regarding the applicability of Section 34 of IPC. The infliction of injuries was not material when many people were acting in concert with the deadly weapon. Even if no injury was inflicted and the person shared a common intention, he would be liable. Therefore, the learned Sessions Judge prima facie erred in holding that the respondent no. 2/accused will not be liable for murder in the present case because he had not inflicted a fatal injury upon the deceased. This shows that the learned Sessions Judge had granted bail to respondent No.2 by ignoring the fact that he was involved in the commission of a heinous offence by concentrating on the nature of injuries inflicted by respondent No.2, which was not a relevant consideration. Thus, this Court is bound to interfere with the order passed by the learned Sessions Judge as per the judgment of the Hon’ble Supreme Court in Ajwar (supra). 12. It was submitted that the learned Sessions Judge had the discretion to grant the bail, and the discretion so exercised should not be interfered with by this Court. There is no dispute with this proposition of law. 12. It was submitted that the learned Sessions Judge had the discretion to grant the bail, and the discretion so exercised should not be interfered with by this Court. There is no dispute with this proposition of law. The matter would have been altogether different had the learned Sessions Judge been deciding the bail petition for the first time; however, he was not deciding the bail petition for the first time and could have only granted the bail on the change in circumstance as was noticed in the order passed by him. Learned Sessions Judge failed to notice that this Court had prima facie held respondent No.2 liable for the commission of an offence punishable under Section 302 by virtue of Section 34, and there is nothing in the order passed by learned Sessions Judge that any circumstance has changed showing that the respondent No.2 was not liable by virtue of Section 34 of the IPC. 13. In view of the above, the learned Sessions Judge exercised the jurisdiction vested in him by ignoring the relevant material and ignoring the gravity of the offence. Hence, the present petition is allowed, and the order dated 28.08.2024 passed by learned Sessions Judge Bilaspur granting bail to respondent no.2/accused is ordered to be set aside. The bail granted to respondent No.2 is ordered to be cancelled. Respondent No.2 will surrender within two weeks, failing which, he shall be taken into custody as per the law. 14. It is expressly made clear that the observations made hereinbefore are confined to the disposal of the present petition and will have no bearing whatsoever on the merits of the case or the successive bail petition, if filed, by the accused. 15. The present petition stands disposed of.