Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(HP) 639

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sandeep Sharma, J.
Sanjeev Kumar @ Sanju S/o Sh. Gian Chand - Appellant
Vs.
State Of Himachal Pradesh - Respondent
Criminal Misc. Petition (Main) No.2252 of 2022
Decided On : 31-10-2022

Advocates:
Advocate Appeared:
For the Appellant :Mr. Kashmir Singh Thakur, Advocate
For the Respondent:Mr. Narender Guleria, Additional Advocate General, With Mr. Sunny Dhatwalia, Assistant Advocate General

Point of Law: Presumption of Innocence - A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty.

Headnote:
Code of Criminal Procedure, 1973 - Section 439, 161, 154, 436, A – Indian Penal Code, 1860 - Sections 34, 302, 341, 323, 504 and 506 - Constitution of India, 1950 - Article 21 - Unlawful Activities (Prevention) Act, 1967 - Section 43D (5) - Grant of Regular Bail - Bail petitioner who is behind bars has approached this court in instant proceedings filed for grant of regular bail. Para 18.
Finding of the Court :
If 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 accused was participating in investigations to satisfaction of investigating officer and was not absconding or not appearing when required by investigating officer - Surely, if an accused is not hiding from 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 judge to consider whether accused is a first time offender or has been accused of other offences and if so, nature of such offences and his or her general conduct - Poverty or 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 Code of Criminal Procedure, 1973 - An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in Code of Criminal Procedure, 1973 - 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 dignity of an accused person, howsoever poor that person might be, requirements of Article 21 of Constitution and 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 - In view of aforesaid discussion as well as law laid down by Hon’ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, petitioner is ordered to be enlarged on bail in aforesaid FIR.
Result: Petition allowed.

ORDER :

Bail petitioner namely Sanjeev Kumar, who is behind the bars since 19.9.2021, has approached this court in the instant proceedings filed under Section 439 Cr.PC, for grant of regular bail, in case FIR No. 97/21 dated 18.9.2021, registered at Police Station Hatli, Tehsil Baldwara, District Mandi, Himachal Pradesh, under Sections 302, 341, 323, 504 and 506 read with Section 34 of the IPC.

2. Pursuant to order dated 12.10.2022, respondent-state has filed the status report. ASI Pyare Lal, PS Hatli, has also come present with the records. Records perused and returned.

3. Close scrutiny of record/status report reveals that on 18.9.2021, deceased Ravi Kumar alias Panku got his statement recorded at PS Baldwara alleging therein that on 17.9.2021, at 9pm while he was in Bhambla Bazar, person namely Neetu along with his one friend, whose name is not known to him but he recognizes him, gave him beatings with iron rods, as a result of which, he suffered injuries on his left eye and several parts of the body. He also alleged that above named Neetu and his friend also obstructed his path and gave him beatings with kicks, fists and iron rod. He alleged that with great difficulty, he was able to escape from the clutches of both the persons, but while leaving, they also extended threats. On the basis of aforesaid complainant, FIR detailed herein above, came to be lodged against the accused named in the FIR. Since investigation in the case is complete and nothing remains to be recovered from the accused, he has approached this Court in the instant proceedings, praying therein for grant of regular bail.

4. Mr. Narender Guleria, learned Additional Advocate General while fairly admitting factum with regard to filing of the challan in the competent court of law contends that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of offence alleged to have been committed by him, he does not deserve any leniency. While making this Court peruse the evidence adduced on record by the prosecution, especially statement of PW4 Smt. Spana, who happens to be sister of the deceased, Mr. Guleria further submits that it has clearly emerged in the evidence that deceased before succumbing to the injuries suffered by him in the alleged incident disclosed to the police that he was given beatings by three persons including the present bail petitioner and as such, it cannot be claimed that petitioner herein has been falsely implicated. While fairy admitting the factum with regard to the fact that sole eye witness PW1 has turned hostile, Mr. Guleria submits that though in his cross-examination, aforesaid witness has not been able to dispute his statement given to the police under Section 161 Cr.PC, but even otherwise statement of PW4 Sapna is sufficient to conclude the guilt of the accused. Lastly, Mr. Guleria, submits that since statements of material prosecution witnesses yet remain to be recorded, it would not be in the interest of justice to enlarge the petitioner on bail, who in the event of being enlarged on bail may not only flee from justice, but may also temper with the prosecution evidence.

5. Mr. Kashmir Singh Thakur, learned counsel appearing for the petitioner while refuting the aforesaid submissions made by the learned Additional Advocate General states that at no point of time, deceased disclosed the name of the bail petitioner to the police because in that eventuality, police would have definitely recorded the name of the accused in the FIR at the first instance, rather his name came to be recorded on the basis of statements made by PW4 and her mother on 19.9.2021 i.e. after the death of the deceased and as such, no much reliance can be placed upon the same. Mr. Thakur further submits that prosecution witness PW1, who as per prosecution story had an occasion to see the incident has turned hostile and since statement made by PW4 is totally contradictory, same cannot be made basis to conclude the guilt, if any