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2025 DIGILAW 427 (HP)

Gursewak v. State of Himachal Pradesh

2025-03-21

RAKESH KAINTHLA

body2025
JUDGMENT : Rakesh Kainthla, J. The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested vide F.I.R. No. 244 of 2024, dated 04.10.2024, registered for the commission of offences punishable under Sections 326(g) and 238 of Bhartiya Nayaya Sanhita, 2023 (BNS). The investigation is complete. The charge sheet has been filed before the learned Additional Chief Judicial Magistrate, Nalagarh, and no fruitful purpose would be served by detaining the petitioner in custody. The petitioner was arrested on 9.10.2024. The trial has not commenced yet. The petitioner would abide by all the terms and conditions which the Court may impose; hence, the petition. 2. The petition is opposed by filing a status report asserting that the police received information on 4.10.2024 that a shop was on fire at Sabji Mandi. The police went to the spot where the informant, Santosh Gupta, made a statement that he was running a Footwear shop at Baddi. He had received information at 4:30 am that his shop was on fire. The shop contained articles worth Rs. 3-4 lakhs. The police registered the FIR and conducted the investigation. The police checked the CCTV footage and found that one person went towards the spot at 1:32 am. He had put something on the camera to obstruct its view. The connecting wire of the other CCTV camera was cut. The substance used to obstruct the CCTV view fell, and the person’s hand became visible. The person was identified as Gursewak, the present petitioner. The CCTV footage from the house of Satish Kumar was also taken in possession. It was found after the investigation that the petitioner was running a shop adjacent to the informant’s shop. The petitioner had put the informant’s shop on fire due to the business rivalry. The articles and the CCTV footage were sent to FSL, and the person in the CCTV footage was identified as the present petitioner. The sacred threads on his hand were also matched with the sacred threads in the petitioner’s photograph. The challan was prepared and filed before the Court; hence, the status report. 3. I have heard Mr. Parikshit Rathore, learned counsel for the petitioner and Mr. Jitender Sharma, learned Additional Advocate General, for the respondent/State. 4. Mr. Parikshit Rathore, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. The challan was prepared and filed before the Court; hence, the status report. 3. I have heard Mr. Parikshit Rathore, learned counsel for the petitioner and Mr. Jitender Sharma, learned Additional Advocate General, for the respondent/State. 4. Mr. Parikshit Rathore, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. The petitioner’s identification is not proper. The petitioner has been in custody since 09.10.2024. The charge sheet is pending before learned Additional CJM, Nalagarh. The trial is not likely to commence soon. The petitioner’s custody is not required and no fruitful purpose would be served by detaining him in custody; hence, he prayed that the present petition be allowed and the petitioner be released on bail. 5. Mr. Jitender Sharma, learned Additional Advocate General, for the respondent/State submitted that the petitioner is involved in the commission of a heinous offence. He had put the shop of the informant on fire due to the business rivalry. The trial has not yet commenced and the petitioner can influence the witnesses in case of his release on bail; hence, he prayed that the present petition be dismissed. 6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. The parameters for granting bail were considered by the Hon’ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC 768 : 2024 SCC OnLine SC 974, wherein it was observed as under 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 . [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]. 8. This position was reiterated in Ramratan v. State of M.P. , 2024 SCC OnLine SC 3068 , wherein it was observed as under:- “12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin Lokhandwalla v. State of Maharastra (2020) 10 SCC 77 observed that though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. The relevant observations are extracted herein below: “14. The language of Section 437(3) CrPC, which uses the expression “any condition … otherwise in the interest of justice” has been construed in several decisions of this Court. The relevant observations are extracted herein below: “14. The language of Section 437(3) CrPC, which uses the expression “any condition … otherwise in the interest of justice” has been construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail.” (Emphasis supplied) 13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570 this Court discussed the scope of the discretion of the Court to impose “any condition” on the grant of bail and observed in the following terms:— “15. The words “any condition” used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such extreme condition to be imposed.” (Emphasis supplied) 14. This Court, in Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779 , laid down the factors to be taken into consideration while deciding the bail application and observed: “ 4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial.” (Emphasis supplied) 9. This position was reiterated in Shabeen Ahmed versus State of U.P., 2025 SCC Online SC 479. 10. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 11. The status report shows that the face of the person in the DVD was found blurred and could not be enhanced up to the identified level. However, the physique of the person, his height and hairline matched the petitioner’s physique. Three threads appeared to be similar to those of the petitioner. This report shows that the image was blurred, and the identification was made based on physique, height, hairline and the threads. Since there was no facial identification, therefore, prima facie the petitioner’s identification is doubtful. 12. There is no other evidence connecting the petitioner with the commission of the crime; hence, prima facie, there is insufficient material to connect the petitioner with the commission of the crime at this stage. 13. The status report also shows that no inflammable material was detected in the contents of the parcel prepared at the spot as per the FSL report; hence, it is doubtful that the fire was caused due to the presence of inflammable material. 14. The petitioner was arrested on 9.10.2024. 13. The status report also shows that no inflammable material was detected in the contents of the parcel prepared at the spot as per the FSL report; hence, it is doubtful that the fire was caused due to the presence of inflammable material. 14. The petitioner was arrested on 9.10.2024. The status report shows that a charge sheet has been filed in the Court of learned Additional CJM who has not committed it to learned Sessions Judge for trial. Therefore, there is a force in the submission made on behalf of the petitioner that the trial is not likely to commence soon. The charge sheet has been filed before the Court, and custodial interrogation is not required; hence, no fruitful purpose would be served by detaining the petitioner in custody. 15. The status report shows that the petitioner is residing with his brother-in-law at Baddi. It means that the petitioner is not likely to abscond, and his presence during the trial can be easily secured. 16. The status report does not show any criminal antecedents of the petitioner. 17. It was submitted that the petitioner can intimidate the witnesses in case of his release on bail. However, there is insufficient material on record to support this submission. The petitioner cannot be detained in custody based on the apprehension alone and the apprehension can be removed by imposing the conditions. 18. In view of the above, the present petition is allowed, and the petitioner is ordered to be released on bail subject to his furnishing bail bonds in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following conditions: (i) The petitioner will not intimidate the witnesses, nor will he influence any evidence in any manner whatsoever. (ii) The petitioner shall attend the trial and will not seek unnecessary adjournments. (iii) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of the intended visit to the concerned Police Station and the Court. (iv) The petitioner will surrender his passport, if any, to the Court; and (v) The petitioner will furnish his mobile number and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. (iv) The petitioner will surrender his passport, if any, to the Court; and (v) The petitioner will furnish his mobile number and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change. 19. 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 the Court for cancellation of the bail. 20. The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the case's merits. 21. The petition stands accordingly disposed of. A copy of this order will be sent to the Superintendent Sub-Jail, Kishanpura, Tehsil Nalagarh, District Solan, H.P., and the learned Trial Court by FASTER. 22. A downloaded copy of this order shall be accepted by the learned Trial Court while accepting the bail bonds from the petitioner, and in case said Court intends to ascertain the veracity of the downloaded copy of the order presented to it, same may be ascertained from the official website of this Court.