Sukhwinder Singh Vs State of Hp

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP (M) No. 97 of 2024 Reserved on : 21.06.2024 Decided on : 05.07.2024 Sukhwinder Singh ....Petitioner Versus State of Himachal Pradesh .…Respondent Coram The Hon’ble Mr. Justice Sushil Kukreja, Judge Whether approved for reporting?¹ _______________________________________________________ For the petitioner: Mr. George, Advocate. For the respondent: Ms. Niyati Thakur and Mr. Raj Negi, Deputy Advocates General. ________________________________________________ Sushil Kukreja, Judge

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The instant bail application has been filed by the petitioner under Section 439 of the Code of Criminal Procedure (Cr.PC) for grant of bail in case FIR No. 321/2022, dated 06.12.2022, registered at Police Station Nalagarh, Police District Baddi, H.P., under Sections 302, 323, 504 read with Section 34 of Indian Penal Code (IPC).

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Brief facts of the case, as per the status report filed by the respondent-State, are that on 06.12.2022, one Nand Lal,

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Whether reporters of Local Papers may be allowed to see the judgment?

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Chairman, New Serenity Home Center, Nalagarh, made a complaint to the police, stating therein that a quarrel took place in the Center and a person, who sustained injuries in the quarrel, was taken to PGI Chandigarh for treatment. Later on, the police was informed that Deepak Kumar who sustained injuries died in PGI. Thereafter, during the course of investigation, police recorded statement of one Vikram Singh under Section 154 Cr. P.C., who stated that as he was a drug addict so he was admitted in the Serenity Home Center on 20.11.2022. He further stated that during intervening night of 5/6.12.2022, at around 01:30 a.m., Sandeep Kumar, Gurwinder Singh, Imran Khan and Hardeep Singh came inside the Center and Sandeep Kumar shouted the names of Sumit, Ashok, Deepak, Shivam and Amrit Pal. Accused Sandeep along with other accused persons slapped Deepak and they also took off the clothes of Sumit Kumar, Ashok, Deepak, Shivam and Amrit Pal and thereafter for about three hours, with intervals, the accused persons gave beatings to the above persons. Accused Hardeep Singh gave beatings with the help of bamboo stick. Later on, the accused persons left the spot, however, at around

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07:00 a.m., in the morning, they again came back and gave beatings to the above five persons. Deepak was lying on the floor, who asked for water, so Vikram Singh and others gave him water and he fell unconscious. Thereafter, the accused persons came inside and made Deepak to wear clothes and took him outside. After half an hour, accused persons also took other injured persons out of the room. In his statement, Vikram Singh further disclosed that while the accused persons were giving beatings, they were also using abusive language and saying “how dare you brought chitta (heroin) inside.” Injured Deepak was shifted to PGI, Chandigarh for treatment, but later on he succumbed to the injuries. On the basis of the aforesaid statement of Vikram Singh, police registered the case and the investigation commenced.

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The police during the course of investigation, collected scientific samples, effected relevant recoveries and recorded the statements of the witnesses. Postmortem examination on the corpse of the deceased was conducted. Accused Imran and Hardeep were arrested on 07.12.2022. On 19.01.2023, accused Sandeep @ Kola surrendered himself

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before the police. The petitioner approached this Court for grant of anticipatory bail, but the same was dismissed vide order dated 09.03.2023. Thereafter, the petitioner surrendered himself before the learned trial Court on 15.03.2023.

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As per the prosecution story during interrogation, accused Hardeep got recovered the chappals and bamboo sticks, with which, he alongwith Goni @ Gurwinder Singh, Imran and Happy @ Sukhwinder Singh (petitioner herein) gave beatings to Sumit, Ashok, Deepak, Shivam and Amrit Pal on 5/6.12.2022 in New Serenity Home, Nalagarh. During interrogation, accused Gurwinder Singh disclosed that on 5/6.12.2022, at about 1:30 A.M., he alongwith Hardeep, Imran, Happy @ Sukhwinder Singh gave beatings to Sumit, Ashok, Deepak, Shivam and Amrit Pal with chappals and bamboo sticks at Serenity Home, Nalagarh. On 25.02.2023 the petitioner joined the investigation and disclosed that on 05.12.2022 he, alongwith Hardeep, Goni @ Gurwinder Singh, Imran, Arman and Jagota were sleeping in the upper floor of New Serenity Home Nalagarh. On that day, there was recovery party of Imran and after cutting cake at about 12:00 midnight

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they went to sleep. Around 1:30 A.M., in the hall where patients were sleeping, he heard loud noise. He went near window and heard other persons stating that Amit, Ashok and Deepak were sniffing some substance. He disclosed this fact to Sandeep and thereafter, Sandeep dislosed the same to Gurwinder. Sandeep and Imran went to the hall and personally searched Amit, Ashok and Deepak and recovered chitta from Deepak and on asking, Deepak disclosed that he was having chitta and he gave it to Amit, Ashok, Shivam and Amrit Pal. Thereafter, Hardeep went outside and brought a stick with him and gave blows to them with bamboo stick and chappals. Sandeep and Gurwinder also gave beatings to them with bamboo stick. He also slapped them as he was directed to do so by Gurwinder being their Manager. Hardeep, Gurwinder and Sandeep also asked all five boys to open their clothes and they were made to sit naked near the wall. All five boys were beaten for upto two hours and blood started oozing out from the ear of Deepak. Around 7:45 A.M., Sandeep told him that there is no movement in the body of Deepak and was taken to PGI Chandigarh, however, he succumbed to the injuries.

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The bail application has been filed by the petitioner on the ground that he is innocent and has been falsely implicated in the present case. Learned counsel for the petitioner contended that the petitioner was roped in this case by co-accused namely Gurwinder and Sandeep due to personal enmity, whereas, complainant in his statement recorded under Section 154 Cr. P.C. nowhere named the petitioner. He further contended that there is no evidence against the petitioner to prove his involvement in the alleged incident, as such, he deserves to be released on bail.

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Per contra, the learned Deputy Advocate General opposed the bail application on the ground that the petitioner does not deserve to be released on bail as he has been found involved in a serious offence of murder and in case he is released on bail, he may tamper with the prosecution evidence or may also flee from justice, as such, he does not deserve to be released on bail.

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I have heard learned counsel for the petitioner as well as learned Deputy Advocate General for the State and also carefully gone through the material available on record. From

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the perusal of the record, I am of the firm opinion that the petitioner has not made out a case for grant of bail.

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The law with respect to the grant or refusal of bail is well settled. It has been held by the Hon’ble Supreme Court in a catena of judgments that the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on 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

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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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In Kalyan Chandra Sarkar Vs Rajesh Ranjan alias

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Pappu Yadav and Another , (2004) 7 SCC 528, the Hon'ble Apex Court has held that the Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. The relevant portion of the aforesaid judgment reads as

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under:-

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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:

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(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

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(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

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(c) Prima facie satisfaction of the court in support of the charge.

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The Hon'ble Apex Court referred to the factors to be

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borne in mind while considering an application for bail in

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Prasanta Kumar Sarkar vs Ashis Chatterjee and another ,

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(2010) 14 SCC 496 and the said factors are as follows:

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9……………

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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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………..”

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In Central Bureau of Investigation Vs. V. Vijay Sai

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Reddy , (2013) 7 SCC 452 the Apex Court has reiterated the

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principle by observing as follows:

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"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

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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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In Virupakshappa Gouda Vs. The State of

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Karnataka , AIR 2017 SC 1685 the Apex Court held that an order of bail cannot be granted in an arbitrary or fanciful manner.

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The relevant portion of the aforesaid judgment reads as under:-

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“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:-

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“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

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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 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.”

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13. In Anil Kumar Yadav Vs. State (NCT) of Delhi ,

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AIR 2017 SC 5398 the Apex Court by relying upon various

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judgments held that for ensuring the fair trial, witnesses must be in a position to freely depose without fear. The relevant portion

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of the aforesaid judgment reads as under:-

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“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

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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 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:-

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"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]”

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In Mahipal vs. Rajesh Kumar @ Polia and

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another , (2020) 2 SCC 118 the Hon'ble Apex Court held that the power to 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:

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“11………….

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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.

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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:

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(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.

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(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."

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In view of the above stated authoritative

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pronouncement of law laid down by the Apex Court, coming to the facts of the case on hand. The perusal of the record prima facie reveals that at the time of the alleged incident, the petitioner was present in Serenity Home Center and he alongwith other accused persons gave beatings to deceasedDeepak as well as to Shivam, Ashok, Amit and Amritpal during the intervening night of 5/6^th December, 2022 as a result of which Deepak succumbed to his injuries. The evidence collected during investigation, prima facie, indicates the involvement of the petitioner in a serious offence of murder, as the victims Amit Rana and Shivam had specifically named the petitioner in their

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statements recorded on 07.12.2022 about his involvement in the crime. The perusal of the record further reveals that Nand Lal, Chairman, New Serenity Home, Nalagarh, in his statement recorded under Section 161 Cr. P.C. on 17.12.2022 and Abhishek, Dharmender, Virender and Pritam, who were the inmates of New Serenity Home, Nalagarh, in their statements recorded under Section 161 Cr. P.C. on 26.12.2022 have also named the petitioner qua his involvement in the crime.

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The learned counsel for the petitioner contended that the statement recorded by the Police on 12.12.2022, wherein, name of the petitioner was disclosed is nothing, but a confessional statement of one accused against the other, which is not admissible and the same is hit by Sections 25 & 26 of the Indian Evidence Act. To buttress his submissions, he also placed reliance upon the following judicial pronouncements:-

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“(i) Hari Charan Kurmi and Jogia Hajam Vs. State of Bihar, 1964 AIR 1184.

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(ii) Prasanta Kumar Sarkar Vs. Ashis Chatterji & Anr., AIR 2011 Supreme Court 274.

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(iii) Satender Kumar Antil Vs. Central Bureau of Investigation & Anr., 2022 Live Law (SC) 577. (iv) Cr. Revision No. 2554 of 2019, titled Santosh Usrethe Vs. State of Madhya Pradesh, decided on 17.02.2020.

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(v) Cr. Appeal No. 1786 of 2023 alongwith connected matter, titled Naresh @ Nehru Vs. The State of Haryana, decided on 09.10.2023. (vi) Cr. Appeal No. 163 of 2010, titled Darshan Singh Vs. State of Punjab, decided on 04.01.2024.”

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There can be no dispute about the proposition of law

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that the confessional statement of one accused against the other is not admissible and the same is hit by Sections 25 and 26 of the Indian Evidence Act. Section 25 of the Indian Evidence Act makes it clear that no confession made to a police officer shall be proved as against the person accused of any offence. Whereas, as per Section 26 of the Indian Evidence Act any such statement is inadmissible if given while in police custody.

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Learned counsel for the petitioner contended that neither the complainant nor any other victim had named the petitioner in their initial statements as one of the assailants. He also contended that supplementary statements, in which, name of the petitioner was introduced, were recorded after about 20 days of lodging the FIR, which had rendered the prosecution story doubtful. However, this contention of the learned counsel for the petitioner deserves to be rejected, because as observed earlier the victims, i.e. Amit Rana and Shivam had specifically

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named the petitioner in their statements recorded on 07.12.2022

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about his involvement in the crime. Moreover, these contentions raised by learned counsel for the petitioner cannot be decided in detail at the stage of deciding the present bail application as these are the contentions, which will be decided by the learned trial Court after leading of the evidence by the prosecution.

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Therefore, keeping in view the nature of the allegations leveled against the petitioner 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. P.C. in favour of the petitioner.

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Hence, for the reasons mentioned above, the bail application filed by the petitioner is dismissed.

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Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the trial Court will not be influenced by any observations made therein.

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( Sushil Kukreja ) July 05, 2024 Judge (raman)

Sukhwinder Singh v. State of Hp

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Sukhwinder Singh v. State of Hp

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