Sandeep Sharma DECISION
Sandeep Sharma, J.
THROUGH VIDEO-CONFERENCING1. Bail petitioner, Rohit, who is behind the bars since 14.5.2020 in FIR No. 60, dated 12.5.2020, under Ss. 341, 323, 325, 307, 504, 506, 201 and 34 IPC registered at Police Station Palampur, District Kangra, Himachal Pradesh, has approached this Court for grant of regular bail.
2. Status report filed by the respondent-State in terms of order dated 13.10.2020 reveals that on 12.5.2020 at 6.30 pm, persons namely Nitish and Naveen were going to their houses on scooty and motor cycle, respectively and when they were just 800 metres away from their house, bail petitioner stopped them and started abusing them. Complainant alleged that the co-accused, Rahul Chauhan stopped them and started hurling abusing at them. Complainant alleged that the co-accused named herein above after having hurled abuses at them, went towards Electricity Board Colony, as such, they also turned their vehicles towards Electricity Board Colony and stopped co-accused namely Rahul Chauhan to know the reason for hurling abuses. However, co-accused Rahul Chauhan, again hurled abuses and called his family members on the spot, whereafter, bail petitioner, who happened to be brother of accused Rahul alongwith his father and uncle, reached the spot and allegedly gave beatings to complainant as well as Nitish using baseball bat. In the aforesaid background, FIR detailed herein above came to be lodged against the bail petitioner alongwith other two co-accused. Bail petitioner Ranjeet Singh and Rahul Chauhan already stand enlarged on bail whereas, bail petitioner is behind the bars since 14.5.2020.
3. Mr. Arvind Sharma, learned Additional Advocate General, while fairly admitting factum with regard to filing of the Challan in the competent Court of law contends that though nothing remains to be recovered from the bail petitioner but keeping in view the gravity of offence alleged to have been committed by him, he does not deserve any leniency and as such, prayer made on his behalf for grant of bail deserves to be rejected outrightly. Mr. Sharma, learned Additional Advocate General further contends that the medical evidence on record clearly reveals that the victim Naveen suffered serious injuries on his head and in case, he was not taken to hospital immediately, he would have died on account of injuries inflicted on his head. While referring to medical evidence available on record, Mr. Sharma, contends that though the victim Naveen stands discharged from hospital, but still he is not normal as such, it would not be in the interest of justice to enlarge the bail petitioner at this stage, who in event of being enlarged on bail, may not only flee from justice but may again make an attempt to attack the victim.
4. Having heard learned counsel for the parties and perused the material available on record, this Court finds that other accused namely Ranjeet Singh and Rahul Chauhan already stand enlarged on bail, whereas, bail petitioner is behind the bars for almost 6 months. As per case of prosecution, initially dispute occurred inter se accused Rahul Chauhan and persons namely Nitish and Naveen, whereafter, allegedly on the call of co-accused Rahul Chauhan, bail petitioner alongwith his father reached the spot and gave beatings to the victim namely Naveen and Nitish. However, as per statement of complainant, accused Rahul Chauhan after having hurled abuses, had gone towards Electricity Board Colony but victim themselves chased him and stopped him to know reason for having hurled abuses at them. Though medical evidence on record reveals that in the alleged incident, victim Naveen suffered serious injuries on his head which otherwise have been termed dangerous to life as per Medical Officer but it is yet to be established on record that the injury on the head of the victim, Naveen were caused on account of blow of baseball bat given by the bail petitioner, especially when it has come on record that initially altercation had taken place between brother of the bail petitioner and persons namely Nitish and Naveen. Though, it emerges from the status report that in the scuffle inter se bail petitioner and persons namely Naveen and Nitish, bail petitioner also gave blow of baseball bat to the victims but this Court finds from record that qua incident in question, two cross-FIRs have been lodged, one by bail petitioner alongwith his brother, Rahul Chauhan i.e. FIR No. 76/2020 alleging therein that he alongwith his brother was given beatings by Naveen and Nitish. It is also borne out from the record that in the aforesaid incident, co-accused Rahul also suffered fracture and as such, it can be inferred that injuries suffered by victim Naveen were on account of clash inter se two groups. No doubt, victim Nitish and Naveen suffered multiple injuries on their person but, as has been taken note herein above, it yet remains to be established that such injuries were caused on account of alleged beatings given by the bail petitioner.
5. Hon'ble Apex Court as well as this Court have held in a catena of judgments that till the time guilt of a person is proved in accordance with law, he/she is deemed to be innocent. In the case at hand, guilt, if any, of the bail petitioner is yet to be proved in accordance with law by leading cogent and convincing evidence, as such, there appears to be no justification to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when co-accused in the case stand already enlarged on bail. Moreover, challan in the case stands filed in the competent Court of law and nothing remains to be recovered from the bail petitioner, who has otherwise already suffered for more than six months. Apprehension expressed by learned Additional 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.
6. 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 held that freedom of an individual can not be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held 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. 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."
7. By now it is well settled that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon'ble Apex Court that 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. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation MANU/SC/1375/2011 : (2012) 1 Supreme Court Cases 49, has 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."
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 also, normal rule is of bail and not jail. Apart from above, 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. In Manoranjana Sinh alias Gupta versus CBI, MANU/SC/0128/2017 : (2017) 5 SCC 218, Hon'ble Apex Court has held as under:
"This Court in Sanjay Chandra vs. Central Bureau of Investigation MANU/SC/1375/2011 : (2012) 1 SCC 40, 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 nor 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 a 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 and 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 that 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."
10. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another MANU/SC/0916/2010 : (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.
11. In view of above, bail petitioner has carved out a case for himself. Consequently, present petition is allowed. Bail petitioner is ordered to be enlarged subject to furnishing bail bonds in the sum of Rs. 1,00,000/- with one local surety in the like amount, to the satisfaction of the Magistrate available at the station, besides the 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 surrender passport, if any, held by him.
12. 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.
13. 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 petition alone.
The petition stands accordingly disposed of.
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