Allowed

Nanak Chand @ Deepa v. State of Hp

Himachal Pradesh HC8 Sept 2020CRMPM/1149/2020

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh granted regular bail to two Army personnel accused of attempting to murder a deceased by beating him to death. The Court balanced the gravity of the charge against the presumption of innocence, trial delays due to the pandemic, and the fact that statements of material witnesses were recorded.

What did the court decide?

Petitioners enlarged on bail on personal bonds of Rs. 2,00,000 each with two local sureties in like amounts.

Nanak Chand @ Deepa Vs State of Hp — Bail and Remand | Himachal Pradesh HC (2020)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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Cr.MP(M) No.1130 of 2020 a/w Cr.MP(M) No.1149 of 2020

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Decided on: 8.9.2020

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____________ ________________________________________________ 1. Cr.MP(M) No. 1130 of 2020 Sunil Kumar ………..Petitioner Versus State of Himachal Pradesh ……….Respondent 2. Cr.MP(M) No. 1149 of 2020 Nanak Chand alias Deepa ………..Petitioner Versus State of Himachal Pradesh …….Respondent Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?¹ Yes. For the Petitioner(s) : Mr. Atul Jhingan, Advocate, through video-conferencing. For the Respondent(s) : Mr. Sudhir Bhatnagar, Additional Advocate General, through video-conferencing. ____________________________________________________________ Sandeep Sharma, Judge (oral):

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Bail petitioners namely, Sunil Kumar and Nanak

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Chand alias Deepa, who are in judicial custody since June,

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

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2017 have approached this Court in the instant proceedings, filed under Section 439 Cr.P.C, praying therein for grant of regular bail in case FIR No.155 of 2017, dated 12.6.2017, under Sections 323, 307, 302 read with Section 34 of IPC, registered at Police Station, Haroli, District Una, Himachal Pradesh.

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Sequel to order dated 21.08.2020, respondentState has filed fresh status report and Investigating Officer namely, ASI Vijay Singh, has also come present alongwith the record. Record perused and returned.

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Close scrutiny of the status report/record reveals that on 11.6.2017 at about 11:00 PM, deceased Ravinder alias Mannu alongwith person namely, Aman was coming back to their village on motorcycle, after dropping their relative, but at about 11:00 PM, when they reached place called Up-Swasthay Kendra, Katla Khurd, persons namely Sanjay Kumar, Upinder Singh, Hanish and present bail petitioners namely, Sunil Kumar and Nanak Chand alias Deepa, stopped the motorcycle being driven by Aman and

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started giving beatings to the deceased Ravinder alias Mannu with Bamboo sticks picked up by them from the fencing of the adjoining house. Aman however managed to 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 his injuries. In the aforesaid background, police after having received information on 12.6.2017, from one Shri Gurdial Singh, father of the deceased lodged aforesaid FIR against the present bail petitioners namely, Sunil Kumar, Nanak Chand alias Deepa and other co-accused (named hereinabove). All the accused named in the FIR save and except bail petitioners Sunil Kumar and Nanak Chand alias Deepa stand enlarged on bail vide judgment dated 1.5.2018 passed by this Court in Cr.MP(M) No.252, 264 and 265 of 2018. Bail petitioner Sunil Kumar and Nanak Chand @ Deepa are

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behind the bars since 27.12018 and 12.6.2017, respectively. It may be noticed that in the alleged incident bail petitioners also suffered injuries and they were also given medical treatment. Bail petitioner namely Sunil Kumar, who at the relevant time was serving in the Indian Army, was taken to RH Jalandhar where he remained admitted for five months on account of the injuries suffered by him in the alleged incident. As per the record, Sunil Kumar after obtaining discharge from RH Jalandhar joined duties and subsequently, he was brought back to Una and since then, he is behind the bars.

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Mr. Sudhir Bhatnagar, 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 petitioners, but keeping in view the gravity of the offence alleged to have been committed by them, they do not deserve any leniency and as such, prayer made on their behalf for grant of bail may be rejected out rightly. Learned

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Additional Advocate General while admitting the factum with regard to bail granted to other co-accused by this Court, contends that no parity, if any, can be claimed by the bail petitioners for the reasons that they are the main persons, who gave beatings to the deceased Ravinder alias Mannu. Learned Additional Advocate General further contends that it is quite apparent from the record that at the time of alleged incident, co-accused namely Upinder Singh, Sanjay Kumar and Hanish were present on the spot, whereas bail petitioners namely Nanak Chand alias Deepa and Sunil Kumar were seen giving beatings to the deceased Ravinder alias Deepa by an eye witness namely, Aman. While referring to the statement made by person namely, Aman, who at the time of alleged incident was with Ravinder alias Mannu, learned Additional Advocate General submits that bail petitioner alongwith other co-accused had come with full preparation to give beatings to the deceased Ravinder alias Mannu and as such, it can be safely inferred that they had an intention to kill the deceased. While

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admitting the factum with regard to injuries caused on the person of bail petitioners namely, Sunil Kumar and Nanak Chand alias Deepa, learned Additional Advocate General contends that FIR No.154 of 2017 lodged by them is 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, especially when it stands established on record that deceased Ravinder alias Mannu died on account of injuries inflicted on his body by the present bail petitioners as well as other co- accused named in the FIR. While responding to the query raised by the Court that till date how many witnesses have been examined, learned Additional Advocate General states on instructions that out of 50 prosecution witnesses, statements of 32 prosecution witnesses have been recorded and still some of the material prosecution witnesses remain to be examined, especially Smt. Sudesh Kumari, in whose presence some of the coaccused claimed that they with an intention to cause injury to the deceased had gone towards Suvidha Palace on their

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motorcycle.

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Having heard learned counsel representing the parties and perused the status report/records made available to this Court, this Court finds that entire case of the prosecution against the bail petitioners and other coaccused is primarily based upon the statement of an eye witness i.e. Aman, who at the time of alleged incident was with deceased Ravinder alias Mannu. Statement of Aman recorded under Section 161 Cr.P.C., if perused in its entirety though suggests that at first instance bail petitioners Sunil Kumar, Nanak Chand alias Deepa and Sanjay Kumar gave beatings to the deceased by Bamboo sticks picked up by them from the fencing of the adjoining house, but as per the own statement of this witness, he after sensing the danger to his life, fled away from the scene and hided himself in bushes and as such, it would be pre-mature at this stage to conclude guilt, if any, of bail petitioners that too on the basis of statement of an eye witness Aman, who

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admittedly having sensed danger to his life had fled away from the spot.

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Record clearly depicts that in the alleged incident bail petitioners also suffered serious injuries. Discharge slip issued by Military Hospital, Jalandhar, where bail petitioner Sunil Kumar being Army personnel remained admitted for five months, clearly reveals that he also suffered injuries on his person, which were allegedly given by sharp edged weapon. Besides above, two cross FIRs came to be lodged in the police station on the same day, wherein both the parties levelled allegations against each other. No doubt, one person Ravinder alias Mannu lost his life in the alleged incident, but having carefully perused the discharge slip placed on record, which is not in dispute, this Court is inclined to infer/presume at this stage that fight/clash had taken place inter se two groups, wherein members of both the groups gave beatings to each other. Co-accused Upinder Singh, Sanjay Kumar and Hanish already stand enlarged on bail, as has been taken note

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hereinabove, whereas bail petitioners are behind the bars for the last three years on account of pendency of trial.

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32 prosecution witnesses out of 50 prosecution witnesses stand examined and case has been repeatedly adjourned for recording the statements of remaining prosecution witnesses on account of prevailing condition in the wake of Covid-19. This Court cannot lose the sight of the fact that normal functioning in the lower courts are yet to be started. Though, in terms of the directions issued by

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the High Court on administrative side lower courts have started recording the evidence, but in limited number and as such, there is every likelihood of further delay in the trial of petitioners. Though, learned Additional Advocate General while making this Court to peruse the status report made serious attempt to persuade this court to agree with his contention that since statements of some of material prosecution witnesses remain to be recorded, it may not be

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in the interest of justice to enlarge the bail petitioners on bail, but having carefully perused the record, this Court

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finds that statements of all the material prosecution witnesses stand recorded. Smt. Sudesh Kumari, who is stated to be material prosecution witness has been cited by the prosecution to prove that accused attacked deceased Ravinder alias Mannu with prior planning and intention to kill him, but since there are two witnesses to aforesaid fact and statement of one of them Amrik Singh stands recorded, no prejudice, if any, would be caused to the prosecution in case prayer made on behalf of the bail petitioners for grant of bail is considered prior to recording the statement of Smt. Sudesh Kumari.

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This Court is fully conscious of the fact that bail petitioners alongwith other co-accused have allegedly indulged in the heinous crime, but guilt, if any of them is yet to be established on record by the prosecution by leading cogent and convincing evidence and as such, it would not be fair or in the interest of justice to let the bail petitioner incarcerate in jail during trial. Record reveals that both the bail petitioners are real brothers and are serving in

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Indian Army and as such, this Court has reasons to presume and believe that they would make themselves available for trial as and when required by the Investigating Agency. Since trial is pending adjudication before the court below and nothing remains to be recovered from bail petitioners coupled with the fact that statements of majority of prosecution witnesses stand recorded, this Court sees no justification to curtail the freedom of the bail petitioners for indefinite period during the trial, which in any eventuality likely to be further delayed on account of pandemic. Otherwise also, bail petitioners are behind the bars for the last three years and in any case, if it is presumed that in coming times lower courts would assume normal working, it will take at least 1 ½ years minimum to conclude the trial, meaning thereby bail petitioners, if not granted bail at this stage would remain behind the bars for approximately five years that too when their guilt is yet to be proved in accordance with law. Keeping the bail petitioners behind the bars for such a long time without holding them guilty

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would definitely amount to pre trial conviction, which is otherwise against the fundamental postulate of criminal jurisprudence i.e. presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty as has been held by Hon’ble Apex Court in Dataram Singh vs. State of Uttar Pradesh & Anr . Apprehension expressed by learned Additional Advocate General that in the event of petitioners being enlarged on bail they may flee from justice though appears to be ill-founded but yet can be best met by putting bail petitioners to the stringent conditions, as has been fairly admitted by learned counsel representing the bail petitioners.

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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 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

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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 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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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.

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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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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 436of 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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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 ofArticle 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

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The Hon’ble Apex Court in Sanjay Chandra versus

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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

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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.”

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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, 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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The Hon’ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496, has laid down the following 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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Consequently, in view of the above, present bail petition(s) is allowed. Petitioners are ordered to be enlarged on bail subject to their furnishing personal bonds in the sum of Rs. 2,00,000/- (Rs. two lac) each with two local sureties in the like amount to the satisfaction of the learned 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 her from disclosing such facts to the Court or the Police Officer; and

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d. They shall not leave the territory of India without the prior permission of the Court.

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It is clarified that if the petitioners misuse their

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liberty or violate any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail.

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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 these applications alone.

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The bail petitions stand disposed of accordingly.

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Copy dasti.

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(Sandeep Sharma) Judge

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September 8,2020

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(shankar)

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