The court dismissed the bail application of the petitioner charged with murder, robbery, and attempting to alter evidence. Relying on Supreme Court precedents, the judge held that the gravity of the offence, prima facie involvement, and need for fair trial precluded bail.
Bail application dismissed; petitioner not entitled to be released on bail.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 488 of 2024 Reserved on: 28.06.2024 Decided on: 12.07.2024 Dharmender Kumar ....Petitioner Versus State of Himachal Pradesh …Respondent Coram The Hon’ble Mr. Justice Sushil Kukreja, Judge. Whether approved for reporting?1 For the petitioner: Ms. Kanta Thakur, Advocate. For the respondent/State: Mr. Raj Negi and Mr. Puneet Rajta, Additional Advocates General, with Ms. Niyati Thakur, Deputy Advocate General.
____________________________________________________ Sushil Kukreja, Judge.
The instant bail application has been filed by the petitioner under Section 439 of the Code of Criminal Procedure for releasing him on bail, in case FIR No. 35 of 2021, dated 23.06.2021, under Sections 392, 506, 201 and 34 of the Indian
1 Whether reporters of Local Papers may be allowed to see the judgment?
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Penal Code (hereinafter for the sake of brevity referred to as “IPC”), registered at Police Station Kotkhai, District Shimla, H.P.. 2. The facts, which emerge from the records, can be summarized as under:
2(a). On 23.06.2021 Swami Shivnarayan Puri submitted a complaint to the police, wherein it was stated that he was a resident of Village Dandi, Post Office Mahasu, Tehsil Kotkhai, District Shimla and Pujari of a temple at Dandi. The complainant further stated in his complaint that since the year 2020 he was residing in the aforesaid temple along with Aatmanand Puri. As per the complainant, on 18th June, 2021, around 12:00 p.m. two persons came and disclosed that they were from Crime Branch, Kolkata, and they were having his arrest warrant. The aforesaid persons neither disclosed their identity nor shown any arrest warrant and confined the complainant in a room. Thereafter, the aforesaid persons took away with him his passport, driving licence, voter card, Aadhar card, PAN card, a small diary, three mobiles, a mic, power bank, laptop, codless mouse, laptop bag, laptop digital pen and cash amounting to Rs.40,000/- to
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45,000/-. The aforesaid persons also threatened the complainant that in case he came out of the temple, they would kill him. Later on, Aatmanand Puri also left the temple. The complainant suspected that Aatmanand Puri in connivance with aforesaid two persons committed the crime. On the basis of the complaint, so made by the complainant, police registered a case under the apt sections of IPC and the investigation commenced. During the course of investigation, it was found that from 18.06.2021 to 20.06.2021, Rs. 60,000/- were withdrawn from the account of the complainant, through ATM from his PNB account and further a sum of Rs. 2,52,843/- was withdrawn through ATM from the AXIS Bank account of the complainant.
2(b). On 05.06.2022 accused Ravinder Kumar @ Aatmanand Singh @ Aatma Nand, Dharmender Kumar (petitioner herein) and Bhupinder Kumar visited Dandi Aashram and killed Shivnarayan Puri by throttling his neck with the help of a rope. Thereafter, the corpse of the deceased was thrown by them at Giri Bridge near Sainj. The decayed dead body of the deceased
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was recovered by the police. Subsequently, the petitioner was arrested on 25.06.2022 in case FIR No. 54/2022, dated 11.06.2022 under Sections 302, 392, 201, 34 & 102-B of IPC, registered at Police Station Kotkhai and thereafter, the custody has been got transferred on 10.08.2022 in the present case FIR and since then, he is in judicial custody.
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contended that at this stage, in case the petitioner is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice.
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record to establish beyond reasonable doubt the commission of
the crime by the accused. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused sub-serves the purpose of the criminal justice system. In Chaman Lal Vs. State of U.P. and Another , (2004) 7 SCC 525, the Apex Court has laid down requisite factors for consideration of bail i.e., (i) nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant, and (iii) prima facie satisfaction of the court in support of the charge.
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“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter or course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge.”
Prasanta Kumar Sarkar vs Ashis Chatterjee and another ,
(2010) 14 SCC 496 and the said factors are as follows:
9……………
"(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;
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(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.
………..”
9. In Central Bureau of Investigation Vs. V. Vijay Sai
Reddy , (2013) 7 SCC 452 the Apex Court has reiterated the
principle by observing as follows:
" 34. While granting bail, the court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the legislature has used the words reasonable grounds for believing instead of the evidence which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."
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10. In Virupakshappa Gouda Vs. The State of
Karnataka , AIR 2017 SC 1685 the Apex Court held that an order of bail cannot be granted in an arbitrary or fanciful manner. The relevant portion of the aforesaid judgment reads as under:-
“18. From the aforesaid principles, it is quite clear that an order of bail cannot be granted in an arbitrary or fanciful manner. In this context, we may, with profit, reproduce a passage from Neeru Yadav Vs. State of Uttar Pradesh, wherein the Court setting aside an order granting bail observed:-
“The issue that is presented before us is whether this Court can annul the order passed by the High Court and curtail the liberty of the 2nd respondent. We are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bed rock of constitutional right and accentuated further on human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilized society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be paralysed and immobilized. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. The society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would
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bring chaos and anarchy to a society. A society expects responsibility and accountability from the member, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, when an individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound to follow. At that stage, the Court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or caprice. It has to be guided by the established parameters of law.”
AIR 2017 SC 5398 the Apex Court by relying upon various judgments held that for ensuring the fair trial, witnesses must be in a position to freely depose without fear. The relevant portion of the aforesaid judgment reads as under:-
“29. In the present case, the trial is at a very crucial stage. The trial court is yet to record the testimony of material witnesses including the complainant as well as all the material witnesses. The trial has commenced and the trial is said to be posted for 04.12.2017. For ensuring the fair trial, witnesses must be in a position to freely depose without fear. In the facts and circumstances of the case, we are convinced that a fair trial can be ensured only if the appellants are not enlarged on bail.
30. We are conscious of the fact that the appellants are only under trials and their liberty is also a relevant consideration. But equally important is to consider the impact of their release on bail on the prosecution witnesses and also its impact on society. In order to
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ensure that during trial the material witnesses depose without fear and justice being done to the society, a balance has to be struck. Referring to Masroor v. State of Uttar Pradesh and another (2009) 14 SCC 286 and other cases, in State of Bihar v. Rajballav Prasad alias Rajballav Prasad Yadav alias Rajballabh Yadav (2017) 2 SCC 178, this Court held as under:-
"26. We are conscious of the fact that the respondent is only an undertrial and his liberty is also a relevant consideration. However, equally important consideration is the interest of the society and fair trial of the case. Thus, undoubtedly the courts have to adopt a liberal approach while considering bail applications of the accused persons. However, in a given case, if it is found that there is a possibility of interdicting fair trial by the accused if released on bail, this public interest of fair trial would outweigh the personal interest of the accused while undertaking the task of balancing the liberty of the accused on the one hand and interest of the society to have a fair trial on the other hand. When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice-delivery system. It is this need for larger public interest to ensure that criminal justice-delivery system works efficiently, smoothly and in a fair manner that has to be given prime importance in such situations. After all, if there is a threat to fair trial because of intimidation of witnesses, etc., that would happen because of wrongdoing of the accused himself, and the consequences thereof, he has to suffer........" [underlying added]”
12. In Mahipal vs. Rajesh Kumar @ Polia and another ,
(2020) 2 SCC 118 the Hon'ble Apex Court held that the power to
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grant bail under Section 439 of Cr.P.C. is of a wide amplitude. Though the grant of bail involves the exercise of discretionary power of the Court, it has to be exercised in a judicious manner and not as a matter of course. In the said case, the guiding factors for exercise of power to grant bail as held in Ram Govind Upadhyay vs. Sudarshan Singh (2002) 3 SCC 598, were referred, which are as follows:
“11………….
3. Grant of bail though being a discretionary order but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case...The nature of the offence is one of the basic considerations for the grant of bail - more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.
4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture, though however, the same are only illustrative and not exhaustive, neither there can be any. The considerations being:
(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.
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(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.
(c) While it is not expected to have the entire evidence establishing the guilt of the Accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.
(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be (2002) 3 SCC 598 considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the Accused is entitled to an order of bail."
pronouncement of law laid down by the Apex Court and keeping in view the heinousness of the case, the petitioner is not entitled to be released on bail. The perusal of the record prima facie reveals that firstly the petitioner in connivance with his brother committed robbery by confining Swami Shiv Narayan Puri. Thereafter, they also pressurized Swami Shiv Narayan Puri to withdraw the complaint against them. Not only this, they again came back to Dandi Temple and then committed gruesome murder of Swami Shiv Narayan Puri. and threw his body near Giripul, Sainj. Moreover, the manner, in which the crime is
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alleged to have been committed and steps taken for disappearance of the evidence shows active participation of the accused in the alleged crime. Thus, prima facie , the nature of the allegations made against the petitioner are serious and mere fact that the petitioner remained in custody for the last more than two years is no ground to grant him bail. Furthermore, the trial in the case is in progress and 12 witnesses out of total 17 witnesses have been examined. Since, 05 witnesses are yet to be examined, therefore, in order to ensure fair trial, the petitioner does not deserve to be released on bail. Hence, keeping in view the nature and gravity of the offence, severity of punishment in the event of conviction and likelihood of tampering with the evidence and also in view of the larger public interest, the present is not a fit case to exercise the discretion under Section 439 of Cr. PC in favour of the petitioner.
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observations made therein.
( Sushil Kukreja )
July 12, 2024 Judge (raman)
2 issues framed by the court
Whether the petitioner is entitled to release on bail considering the heinous nature of the offence and prima facie involvement.
Whether the grant of bail is warranted given the pendency of the trial and risk of interfering with witnesses.
Colour shows how this judgement treated each authority
Chaman Lal Vs. State of U.P. and AnotherReferred¶23
(2004) 7 SCC 525 · Who else cites this
Kalyan Chandra Sarkar Vs Rajesh Ranjan alias Pappu Yadav and AnotherReferred¶27
(2004) 7 SCC 528 · Who else cites this
Prasanta Kumar Sarkar vs Ashis Chatterjee and anotherReferred¶35
(2010) 14 SCC 496 · Who else cites this
Central Bureau of Investigation Vs. V. Vijay Sai ReddyReferred¶48
(2013) 7 SCC 452 · Who else cites this
Virupakshappa Gouda Vs. The State of KarnatakaReferred¶53
AIR 2017 SC 1685 · Who else cites this
Anil Kumar Yadav Vs. State (NCT) of DelhiReferred¶60
AIR 2017 SC 5398 · Who else cites this
Mahipal vs. Rajesh Kumar @ Polia and anotherReferred¶72
(2020) 2 SCC 118 · Who else cites this
Ram Govind Upadhyay vs. Sudarshan SinghReferred¶77
(2002) 3 SCC 598 · Who else cites this
3 provisions across 2 enactments
Dharmender Kumar
State of Himachal Pradesh
Sushil Kukreja
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
