Allowed

Hanish v. State of Hp

Himachal Pradesh HC1 May 2018CRMPM/265/2018

Case brief

AI extract

What is this about?

Single Judge allowed bail to three petitioners charged with murder and culpable homicide. The court found no specific role attributed to them in inflicting injuries per the eye-witness, relying on Supreme Court precedents regarding presumption of innocence and the non-punitive nature of bail.

What did the court decide?

Petitioners enlarged on bail subject to furnishing personal bond of Rs. 2,00,000/- with two local sureties and complying with conditions regarding appearance and non-tampering.

Hanish Vs State of Hp — Bail and Remand | Himachal Pradesh HC (2018)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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Cr.MP(M) Nos. 252, 264 and 265 of 2018 Decided on: 1.5.2018

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1.Cr.MP(M) No. 252 of 2018
Upinder Singh	Versus	………..Petitioner
State of Himachal Pradesh ____________________________	________________	……….Respondent ______________________
2.Cr.MP(M) No.264 of 2018
Sanjay Kumar @ Sanju	Versus	………..Petitioner
State of Himachal Pradesh		……….Respondent
3.Cr.MP(M) No. 265 of 2018
Hanish		………..Petitioner
	Versus
State of Himachal Pradesh		……….Respondent

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Coram:

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Hon’ble Mr. Justice Sandeep Sharma, Judge.

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Whether approved for reporting?¹ Yes.

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For the Petitioner(s)	: Mr. N.K. Thakur, Senior Advocate, with Mr. Divya Raj Singh, Advocate.
For the Respondent(s)	: Mr. Dinesh Thakur, Additional Advocate General and Mr. Vikrant Chandel,
	Deputy Advocate General.

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__________________________________________________________________ Sandeep Sharma, Judge (oral):

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Bail petitioners namely Upinder Singh, S/o Sh. Gian Singh,

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Sanjay Kumar alias Sanju, S/o Gian Singh alias Shinda and Hanish, S/o

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1 Whether the reporters of the local papers may be allowed to see the judgment?

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Narinder Pal, who are in judicial custody since June, 2017, have approached this Court, by way of aforesaid petitions filed under Section 439 of Cr.PC, praying therein for grant of regular bail in case FIR No. 155/17 dated 12.6.2017, under Sections 323, 307, 302 IPC read with Section 34 IPC, registered at PS Sadar, Una, District Una, H.P.

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2. Sequel to orders dated 19.3.2018 and 7.4.2018, ASI Mohd. Sitar, PS Sadar, Una, District Una, H.P., has come present along with records. Record perused and returned. Mr. Dinesh Thakur, learned Additional Advocate General, has also placed on record status report prepared on the basis of investigation carried out by the Investigating agency.

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3. Close scrutiny of record/status report suggests that on 11.6.2017, at about 11:00pm, deceased Ravinder alias Mannu along with person namely Aman, was coming back to their village on motorcycle , after dropping their relative, who used to reside at Dhatial. Allegedly, when deceased and Aman reached at a place called Up-Swasthay Kendra, Katla Khurd, persons namely Sunil Kumar, S/o Balbir Singh, Deepa alias Nanak Chand S/o Balbir Singh, Sanjay Kumar, S/o Kashmir Singh and present bail petitioners, stopped the motorcycle being driven by Aman and started giving beatings to the deceased with Bamboo sticks picked up by them from the fencing of the adjoining house. Aman managed to

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flee from the spot sensing danger to his life and hided himself behind the bushes, from where, he informed his friend (patwari) with regard to the aforesaid incident. In the alleged incident, deceased Ravinder alias Mannu, suffered injuries, as a consequence of which, he was referred to PGI, Chandigarh, where he ultimately succumbed to injuries on 18.6.2017. On the basis of information received on 12.6.2017, from one Shri Gurdial Singh, father of the deceased, aforesaid FIR came to be lodged against the persons named herein above as well as the present petitioners and since then, they all are behind the bars. It may be noticed that in the aforesaid incident, persons namely Deepa and Sanjay also received injuries and they were also given medical treatment, however person namely Sunil, who was serving in Indian Army, was taken to the RH Jalandhar. As per record, Sunil after obtaining discharge from RH Jalandhar joined duties and subsequently, he was brought back to Una, and since then, he is also behind the bars.

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4. Mr. N.K. Thakur, Senior Advocate, duly represented by Mr.

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Divya Raj Singh, Advocate, representing the bail petitioners while referring to the record/status report, vehemently argued that no case, if any, is made out against the bail petitioners because no role, whatsoever, has been imputed to them as far as infliction of injuries on the person of the deceased is concerned and as such, present bail petitioners, who have

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been falsely implicated, deserve to be enlarged on bail. Mr. Thakur, while inviting attention of this Court to the statement of one and only eye witness namely Aman, stated that he has nowhere named the present bail petitioners as far as infliction of injuries and beatings, if any given by the bail petitioners on the persons of deceased are concerned. Mr. Thakur, further contended that scuffle took place between deceased and person namely Sunil, Deepa and Sanjay, S/o Kashmir Singh and all of them, including the deceased suffered injuries, who were taken to the hospital. As is evident from the record, there is nothing to suggest that in the alleged incident injuries, if any, were received by present bail petitioners and they had participated in the scuffle, which ultimately led to the death of the deceased Ravinder alias Mannu. Learned Senior Counsel also invited attention of this Court to FIR dated 12.6.2017, bearing No. 154 of 2017, registered at the behest of Sunil Kumar, S/o Balbir Singh, to demonstrate that in the alleged incident, persons namely Sunil Kumar, Deepa and deceased Ravinder, had suffered injuries and there is no mention of the name of the bail petitioners and as such, story put forth by the prosecution is concocted one so far as the petitioners are concerned. Lastly, Mr. Thakur, contended that bail petitioners, who are young boys have been incarcerating in jail for almost one year for no fault of them and they being local residents of the area, deserve to be enlarged on bail

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as they shall always remain available for investigation as well as trial as and when required. He further contended that since challan stands filed in the competent court of law and nothing is required to be recovered from the bail petitioners, bail petitioners can be ordered to be enlarged on bail subject to imposition of certain conditions.

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5. Mr. Dinesh Thakur, learned Additional Advocate General, while opposing the aforesaid prayer having been made by the learned Senior counsel contended that keeping in view the gravity of offence allegedly committed by the bail petitioners, they do not deserve to be enlarged on bail, rather need to be dealt with severally. He further contended that it is quite apparent from the record that at the time of alleged incident, present bail petitioners were present on the spot and they were seen by the eye witness namely Aman and as such, it cannot be said that they had not inflicted any injury on the person of the deceased. While inviting attention of this Court to the statement of Aman, learned Additional Advocate General strenuously argued that it has specifically come in his statement that present bail petitioners had come alongwith other co-accused and they had been repeatedly instigating them to give beatings to the deceased and Aman. He further stated that if statement of Aman is read in its entirety, it clearly suggests that bail petitioners had also given beatings to the deceased and Aman.

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Lastly, Mr. Dinesh Thakur, learned Additional Advocate General, contended that FIR No. 154 of 2017, is nothing but a counter blast to the FIR lodged by the father of the deceased and as such, same is of no relevance as far as present case is concerned, because it stands duly established on record that deceased Ravinder died on account of injuries inflicted on his body by the present bail petitioners as well as other accused named in the FIR.

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6. Having heard the learned counsel for the parties and gone through the record, this Court finds that at the time of alleged incident, person namely Aman was with the deceased Ravinder alias Mannu. If his statement made under Section 161 of Cr.PC is read in its entirety, it clearly suggests that at the first instance, persons namely Sunil s/o Balbir, Deepa alias Nanak Chand S/o Balbir and Sanjay S/o Kashmir Singh, gave beatings to the deceased with bamboo sticks picked up by them from the fence of the adjoining house. He categorically stated that immediately after sensing the danger to his life, he fled away from the scene and hided himself in bushes. In his first part of the statement, Aman has nowhere stated that he saw the bail petitioners giving beatings to the deceased, rather he has very categorically stated that present bail petitioners were sitting in the car and were proclaiming the other coaccused to give injuries to the deceased.

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7. Having carefully perused the statement of Aman i.e. so called eye witness, this Court is persuaded to agree with submissions of learned Senior counsel that no specific role, if any, is attributed to the present bail petitioners as far as infliction of injury on the person of the deceased and Aman are concerned. Even perusal of status report filed by the Investigating Agency suggests that other co-accused named herein above, played an active role while inflicting injuries on the person of the deceased, whereas present bail petitioners, who were admittedly present at the spot, were sitting in the car and instigating the other coaccused to give beatings.

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8. At this stage, it is also apt to take note that as per status report, co-accused as well as deceased suffered injury in the alleged incident and they all were taken to the hospital but there is no mention of injuries, if any, inflicted by the bail petitioners in the alleged incident to the deceased, which indicates that they had not played any active role at the time of the alleged incident. Though, aforesaid aspects of the matter are to be considered and decided by the court below on the basis of evidence adduced on record by the Investigating Agency, but this Court having perused record, sees no reasons to let the bail petitioners incarcerate in jail for an indefinite period, especially, when they have already suffered for more than one year. Needless to say, guilt, if any, of

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the bail petitioners is yet to be proved in accordance with law by the prosecution by leading cogent and convincing evidence. It is well settled that till the time a person is not found guilty, one is deemed to be innocent. Recently, the Hon’ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh v s. 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 has 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:

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“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

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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.

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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.

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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.

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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

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as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons.

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9. Needless to say object of the bail is to secure the

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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.

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10. The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation ( 2012)1 Supreme Court Cases 49; held as under:-

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“ 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

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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.”

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11. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC

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218, The Hon’ble Apex Court has held as under:-

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“ 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.”

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12. The Hon’ble Apex Court in Prasanta Kumar Sarkar v. Ashis

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Chatterjee and Another (2010) 14 SCC 496, has laid down the following

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principles to be kept in mind, while deciding petition for bail:

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(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

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(ii) nature and gravity of the accusation;

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(iii) severity of the punishment in the event of conviction;

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(iv) danger of the accused absconding or fleeing, if released on bail;

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(v) character, behaviour, means, position and standing of the accused;

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(vi) likelihood of the offence being repeated;

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(vii) reasonable apprehension of the witnesses being influenced; and

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(viii) danger, of course, of justice being thwarted by grant of bail.

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13. In view of the aforesaid discussion as well as law laid down

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by the Hon’ble Apex Court, petitioners have carved out a case for grant of bail, accordingly, the petition(s) are allowed and the petitioner(s) are ordered to be enlarged on bail in aforesaid FIR, subject to their furnishing personal bond in the sum of Rs. 2,00,000/- with two local sureties each in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions:

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(a) They shall make themselves 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;

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(b) They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

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(c) They 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

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