Himachal Pradesh High Court
Reserved On: 15.10.2024 vs State Of Himachal Pradesh on 29 October, 2024
2024:HHC:10423
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
Cr MP(M) No. 1461 of 2024
Reserved on: 15.10.2024
Announced on : 29.10.2024
__________________________________________________________
Lakhwinder Singh alias Abhi …Petitioner
Versus
State of Himachal Pradesh …Respondent
Coram
Hon’ble Mr. Justice Ranjan Sharma, Judge
1Whether approved for reporting ? No.
For the petitioner: Mr. N.S.Chandel, Sr. Advocate with
Mr. Sanjeev Kumar Suri and Mr.
Vinod Gupta, Advocates.
For the respondent: Mr Vishav Deep Sharma,
Additional Advocate General.
Ranjan Sharma, Judge
The bail petitioner [Lakhwinder Singh @ Abhi]
has come up before this Court, seeking regular bail,
under Section 483 of the Bharatiya Nagarik Suraksha
Sanhita, 2003 [herein referred to as BNSS], originating
from FIR No. 277/2023 dated 01.11.2023, registered
under Sections 307, 323, 384, 120-B and 212 of
the Indian Penal Code and Sections 24, 54 and 59
of the Arms Act, registered at Police Station Haroli,
District Una [HP].
FACTUAL MATRIX
1 Whether reporters of Local Papers may be allowed to see the judgment?
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2. Case set up by Mr. N.S. Chandel, Learned
Senior Advocate for the petitioner [Lakhwinder Singh
@ Abhi], is that the bail petitioner is a permanent
resident of Village Lower Badhere, Tehsil Haroli, District
Una. It is averred that the bail petitioner has been
falsely implicated in the aforesaid matter. It is averred
that no evidence exists which connects the present
bail petitioner with the commission of alleged offence.
It is averred that the investigation is complete and
no fruitful purpose will be served in case the petitioner
is enlarged on bail, as the bail petitioner is behind
the bars since 07.11.2023 at District Jail Bangar, District
Una [H.P.].
2(i). It is further averred that the conduct of
the bail petitioner is unblemished. It is further averred
that the petitioner is a wrestler and he has bright
future and the detention will ruin his career. It is averred
that the petitioner has been roped in, on the basis
of mere hearsay evidence. The bail petitioner has given
undertaking that in case of enlargement on bail, the
bail petitioner shall attend the trial and shall execute
the personal/surety bonds and shall not cause any
threat or inducement to the witnesses in any manner.
The instant bail petition, has been filed on behalf of
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the bail petitioner [Lakhwinder Singh @ Abhi] through
his father as he is already in custody, as referred to
above.
CHANGED CIRCUMSTANCES:
2(ii). The petitioner had filed a bail application
No.497/2023 before the Learned Additional Sessions
Judge-II Una, on 07.12.2023, which was dismissed on
31.01.2024 [Annexure A-1]. Thereafter, the petitioner
filed a Second Bail Application bearing Cr.MPM No
409 of 2024 before this Court which was rejected
on 26.03.2024 and then the Third Bail Application
i.e. Cr.MP (M) No.149 of 2024, filed before the Learned
Additional Sessions Judge-II, Una was dismissed on
20.05.2024 (Annexure P-3).
2(iii). Learned Senior Counsel submits that in
Changed Circumstances the bail may be granted when,
Investigation is complete and the petitioner is not
required for custodial interrogation. Even the Challan
dated 3.2.2024, including Supplementary Challan dated
13.9.2024 stands filed before the Court of Learned
Additional Sessions Judge-II Una; and the matter is
fixed for consideration on charge for 21.09.2024. The
petitioner seeks parity when other accused, namely,
Vansh Raijada, Lovdeesh Sandhu and Tashu Sidhu
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have been enlarged on bail. Prolonged incarceration
for more than 11 months now [being in custody since
7.11.2023] results in curtailing the personal liberty
and tantamounts to defeating the reformative intent;
and the fact that an accused is presumed to be innocent
till held guilty. Learned State Counsel states prosecution
seeks to examine 78 PWs and trial is likely to take
considerable. It is submitted that the petitioner has
furnished the undertakings that he shall participate
in the trial and shall not flee away and will not cause
any inducement, threat or promise to any person or
persons acquainted with the offence and shall not
tamper with the evidence in any manner.
In the above changed circumstances, the
petitioner has filed the instant application seeking
enlargement on bail.
PROCEEDINGS BEFORE THIS COURT:
3. Upon issuance of notice on 09.07.2024, the
State Authorities were directed to file the reply/
status report and the matter was directed to be listed
on 18.07.2024. Thereafter, the matter was listed on
18.07.2024 when, respondent filed Status Report and
at the request of learned counsel for the petitioner
the matter was adjourned. Thereafter, the matter was
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again listed on 24.08.2024 when, the respondent filed
the Second Status Report, which forms part of case
records. The matter was then listed on 18.09.2024, when
the Third Status Report was filed by State Authorities
and the matter was adjourned for 23.09.2024. On
23.09.2024 the Learned State Counsel sought time
to place on record the RFSL Report and additional
documents, which were furnished to Learned Counsel
for the petitioner.
At this stage, with the consent of the parties,
the matter was finally heard.
STAND OF STATE AUTHORITIES IN STATUS
REPORT(s):
4. In terms of the orders passed by this
Court directing the State Authorities to file the status
report, the State Authorities have furnished the Status
Reports dated 18.07.2024, 24.08.2024 and 18.09.2024
which are pari-materia, containing similar averments.
4(i). Perusal of the Status Reports reveal that
the instant FIR No 277 of 2023 dated 01.11.2023 was
registered with Police Station Haroli, under Sections
307, 323, 384, 120-B and 212 of IPC, at the instance
of one Sh. Harpreet Singh @ Dhillu, alleging that
present bail petitioner, namely Lakhwinder Singh @
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Abhi, had conspired with the primary accused, namely
Arun Kumar @ Mani Rana [lodged in District Jail,
Ludhiana] along with other accused namely Sumit
Jaswal @ Kaku, Vansh Raizada and Tashu Sandhu,
to extort money and to kill the complainant, namely
Harpreet Singh @ Dhillu and this conspiracy was sought
to be implemented by hiring two shooters, namely
Satinder Pal and Lavdeesh Sandhu, who gave effect to
the conspiracy on 31.10.2023, by opening fires on the
complainant.
4(ii). Status Report(s) indicate that it was at the
insistence of main accused, namely Arun Kumar @
Mani Rana, [who is lodged in District Jail Ludhiana],
Sumit Jaswal @ Kaku, went to meet Vansh Raizada at
Bulabari Chowk at Hoshiarpur [Punjab] on 29.10.2023,
and aforesaid Vansh Raizada, enabled conversation of
Sumit Jaswal @ Kaku, accused with principal-accused,
Arun Kumar @ Mani Rana and thereafter Sumit Jaswal
@ Kaku met another accused, Tashu Sidhu, who
gave 10 cartridges to Sumit Jaswal, who in turn is
alleged to have handed over these 10 cartridges to
the bail petitioner [Lakhwinder Singh @ Abhi] while
he was present for a wrestling competition at village
Rainsary in District Una.
-7- 2024:HHC:10423 4(iii). Status reports reveal that on 30.10.2023,
the present bail petitioner [Lakhwinder Singh @ Abhi]
stayed at the house of accused Sumit Jaswal @
Kaku. It is averred that on 31.10.2023, one of the
accused Sumit Jaswal @ Kaku took both these
shooters, namely, Satinder Pal and Lavdeesh Sandhu
in his Ford Figo No HP-16-8042 initially to village
Rainsary and thereafter they were alleged to have
gone towards Village Ghaluwal, where the complainant,
namely Harpreet Singh @ Dhillu, was running a dhaba
/hotel.
4(iv). Status Report(s) reveals that the principal
accused [Arun Kumar @ Mani Rana], made repeated
whatsapp calls to the complainant, namely Harpreet
Singh @ Dhillu, on 31.10.2023 at about 7:35 pm,
asking a ransom of Rs11,00,000/- [Rupees Eleven
Lakh] and also threatened the complainant to remit
an amount between Rs.1,50,000/- [Rupees One Lakh
Fifty Thousand] to Rs.2,00,000/- [Rupees Two Lakh]
immediately so that he may pursue the filing of his
bail application before the Courts and if need be,
in the Honble Supreme Court, as he was detained in
Ludhiana jail. The main accused Arun Kumar @
Mani Rana threatened the complainant [Harpreet Singh
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@ Dhillu] of dire consequences and threatened to kill
him, in case the demand was not met. It has come
in Status Report that since the complainant did not
accede to such demand therefore, on 31.10.2023 at
about 8:20/8:25 pm, while the complainant was on
way home in Breeza Car i.e. No. HP-72C- 6637,
then, two of the shooters, Satinder Pal and Lavdeesh
Sandhu, came on a motorcycle with muffled faces
and opened fire from a pistol, due to which, one
of the accomplices of the complainant, received injury.
After the incident, the complainant [Harpreet Singh
@ Dhillu], along with friends, reached the Rest House
of Jal Shakti Vibhag and from there, the complainant
informed the police, who thereafter swung into
action.
4(v). After the alleged incident, the bail petitioner
[Lakhwinder Singh] is alleged to have taken the two
shooters i.e. Satinder Pal and Lavdeesh Sandhu in
Vehicle No HP-19B-2378, i.e. Alto Car, in a car, owned
by his sister. Even the CCTV footages were relied
upon by the State Authorities to assert that the
bail petitioner used his sister’s Car to help these
shooters flee away from the scene of occurrence.
4(vi). Status reports reveal that the bail petitioner
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[Lakhwinder Singh @ Abhi], does not have a clean
criminal record, as he is involved in criminal case
originating from FIR No 223/2018 dated 11.08.2018
under Sections 341, 324 and 34 of Indian Penal Code,
registered at Police Station Haroli, which is pending
trial before the Court concerned.
In view of above background, the State
Authorities have prayed for rejection of the plea for
bail of the bail petitioner [Lakhwinder Singh @
Abhi].
5. Heard Mr. N.S. Chandel, Senior Advocate
with Mr. Sanjeev Kumar Suri for the bail petitioner and
Mr. Vishav Deep Sharma, Learned Additional Advocate
General for the Respondent State.
APPLICABLE STATUTORY PROVISIONS:
6. Before dealing with the present application,
it is relevant to take note of the provisions of
Sections 307, 323, 384 of Indian Penal Code, which
read as under:-
307. Attempt to murder.–
Whoever does any act with such intention
or knowledge, and under such
circumstances that, if he by that act
caused death, he would be guilty of
murder, shall be punished with
imprisonment of either description for a
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term which may extend to ten years,
and shall also be liable to fine; and if
hurt is caused to any person by such
act, the offender shall be liable either
to imprisonment for life, or to such
punishment as is hereinbefore mentioned.
Attempts by life convicts- When any
person offending under this section is
under sentence of imprisonment for life,
he may, if hurt is caused, be punished
with death.
(a) A shoots at Z with intention to kill
him, under such circumstances that, if
death ensued. A would be guilty of
murder. A is liable to punishment under
this section.
(b) A, with the intention of causing the
death of a child of tender years, exposes
it in a desert place. A has committed
the offence defined by this section,
though the death of the child does not
ensue.
(c) A, intending to murder Z, buys a
gun and loads it. A has not yet committed
the offence. A fires the gun at Z. He
has committed the offence defined in this
section, and if by such firing he wounds
Z, he is liable to the punishment provided
by the latter part of the first paragraph
of this section.
(d) A, intending to murder Z by poison,
purchases poison and mixes the same
with food which remains in A’s keeping;
A has not yet committed the offence
defined in this section. A places the food
on Z’s table or delivers it to Z’s servant
to place it on Z’s table. A has committed
the offence defined in this section.
323. Punishment for voluntarily causing
hurt.–
Whoever, except in the case provided
for by section 334, voluntarily causes
hurt, shall be punished with imprisonment
of either description for a term which
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may extend to one year, or with fine
which may extend to one thousand rupees,
or with both.
384. Punishment for extortion-
Whoever commits extortion shall be
punished with imprisonment of either
description for a term which may extend
to three years, or with fine, or with
both.
MANDATE OF LAW:
7. Notably, the claim of the suspect-accused
for post arrest or regular bail is to be examined/tested
within the parameters prescribed of the Code of
Criminal Procedure and also the broad para-meters
mandated by the Hon’ble Supreme Court for regulating
grant of bail in Gurbaksh Singh Sibbia versus State
of Punjab (1980) 2 SCC 565, Ram Govind Upadhyay
versus Sudarshan Singh (2002) 3 SCC 598 ; Kalyan
Chandra Sarkar versus Rajesh Ranjan, (2004) 7 SCC
528 ; Prasanta Kumar Sarkar versus Ashish Chatterjee,
(2010) 14 SCC 496 ; reiterated in P. Chidambaram
versus Directorate of Enforcement, (2019) 9 SCC
24, mandating that the bail {anticipatory or regular}
is to be granted where the case is frivolous or groundless
and no prima facie or reasonable grounds exists
which lead to believe or point out towards accusation ;
and these parameters for regular bail have been reiterated
– 12 – 2024:HHC:10423
in Sushila Aggarwal versus State-NCT Delhi, (2020)
5 SCC 01.
7(i). While dealing with the case for grant of
regular bail, under Section 439 Cr PC, the three judges
bench of Hon’ble Supreme Court, after reiterating the
broad parameters, has held in Deepak Yadav versus
State of Uttar Pradesh, (2022) 8 SCC 559, in Para
25 that the nature of the crime has a huge relevancy,
while considering claim for bail.
7(ii). In the case of Ansar Ahmad versus State
of Uttar Pradesh, 2023 SCC Online SC 974, the
Hon’ble Supreme Court had expanded the horizon of
the broad parameters, which are to be primarily taken
into account, for considering the claim for regular bail
or anticipatory bail as under:
11. Mr. R. Basant, the learned Senior Counsel
appearing for one of the private
respondents that the Court while granting
bail is not required to give detailed
reasons touching the merits or de-merits
of the prosecution case as any such
observation made by the Court in
a bail matter can unwittingly cause
prejudice to the prosecution or the
accused at a later stage. The settled
proposition of law, in our considered
opinion, is that the order granting bail
should reflect the judicial application
of mind taking into consideration
the well-known parameters including:
(i) The nature of the accusation
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weighing in the gravity and severity
of the offence;
(ii) The severity of punishment;
(iii) The position or status of the
accused, i.e. whether the accused
can exercise influence on the
victim and the witnesses or not;
(iv) Likelihood of accused to approach
or try to approach the victims/
witnesses;
(v) Likelihood of accused absconding
from proceedings;
(vi) Possibility of accused tampering
with evidence;
(vii) Obstructing or attempting to
obstruct the due course of
justice;
(viii) Possibility of repetition of offence if
left out on bail;
(ix) The prima facie satisfaction of the
court in support of the charge
including frivolity of the charge;
(x) The different and distinct facts of
each case and nature of substantive
and corroborative evidence.
12. We hasten to add that there can be
several other relevant factors which,
depending upon the peculiar facts and
circumstances of a case, would be
required to be kept in mind while
granting or refusing bail to an accused.
It may be difficult to illustrate all such
circumstances, for there cannot be any
straight jacket formula for exercising
the discretionary jurisdiction vested
in a Court under Sections 438 and 439
respectively of the CrPC, as the case
may be.
7(iii). In CBI versus Santosh Karnani, (2023) 6
SCALE 250, the Hon’ble Supreme Court has reiterated
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the illustrative time-tested broad parameters which are
required to be taken into account while considering
the prayer for bail; which have recently been reiterated
by the Hon’ble Supreme Court in the case of State
of Haryana versus Dharamraj, 2023 SCC Online SC
1085.
8. In normal parlance, the principle of law is
that bail is a rule and jail is an exception. However,
this Court is conscious of the fact that the power
under Section 483 of BNSS has to be exercised sparingly.
It is trite law that while considering the prayer for bail
{pre-arrest bail or regular bail], a formation of prima
facie opinion is to gathered as to whether reasonable
grounds exist pointing towards accusation or whether
the accusation is frivolous and groundless with the object
of either injuring or humiliating or where a person
has falsely been roped in the crime needs to be tested
in the background of the self-imposed restrains
or the broad parameters as mandated by law, as
referred to herein above.
9. This Court is also conscious of the fact
that as per the mandate of law, in Criminal Appeal
No 3840 of 2023, titled as Saumya Churasia versus
– 15 – 2024:HHC:10423
Directorate of Enforcement, decided on 14.12.2023,
while considering the prayer for bail, though a Court
is not required to weigh the evidence collected by
the Investigating Agency meticulously, nonetheless,
a Court should keep in mind the nature of accusation,
nature of evidence collected in support thereof,
severity of punishment prescribed for alleged offences,
character of an accused, circumstances which are
peculiar to an accused, reasonable possibility of securing
the presence of an accused during the trial and
the reasonable apprehension of tampering with evidence
and the claim for bail has to be examined by carving
a balance between the rights of an accused and the
larger societal/ public interest.
In this background, while testing the claim
for bail, a Court is required to form a prima-facie
opinion in the context of broad-parameters as referred
to above, without delving into the evidence on merits,
as it may tend to prejudice the rights of the accused
as well as the prosecution.
10. Notwithstanding the rejection of earlier bail
application(s) by Learned Additional Sessions Judge-
II, Una and also by this Court yet in changed
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circumstances, this Court proceeding to examine the
claim of the petitioner for bail, in the instant case
hereinunder.
ANALYSIS OF CLAIM IN INSTANT CASE:
11. Taking into account the entirety of facts
and circumstances and the Statutory provisions and
the Mandate of Law and the averments contained
in the Status Report(s) filed by the State Authorities
and the Changed Circumstances, this Court is of
the considered view that the prayer for bail deserves
to be allowed and the bail petitioner [Lakhwinder
Singh alias Abhi] is entitled to be enlarged on bail
for the following reasons:-
11(i). Based on the averments contained in the
Status Reports and changed circumstances mentioned
herein, neither any prima facie case is made out nor
any reasonable grounds exit pointing towards the
accusation under Sections 307, 323, 384, 120-B and
212 of the Indian Penal Code and Sections 24, 54
and 59 of the Arms Act against the bail petitioner.
Moreover, nothing cogent and concrete is borne out
from the Status Reports indicating an alleged attempt
to murder the complainant by the bail petitioner
and in absence of any material, the accusation under
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Section 307 IPC appears to be highly unbelievable
/doubtful at this stage. Moreover, this accusation is
yet to be tested, examined and proved during the
trial.
11(ii). So far as the accusation under Section 323
IPC is concerned, there is no material on record to
suggest that the bail petitioner has voluntarily resorted
to any grievous hurt either to the complainant or his
accomplice.
11(iii). Even the accusation under Section 384 IPC
alleging extortion is not made out against the bail
petitioner when the Status Reports indicate that the
prime accused Arun Kumar @ Mani Ram had made
repeated Whatsapp call to the complainant asking him
to pay the ransom amount. Once no material has been
placed on record to indicate the involvement of the
bail petitioner regarding an attempt to murder or
voluntarily causing grievous hurt or extortion by
or on behalf of the bail petitioner.
Even, the accusation under Section 120-B
of IPC alleging criminal conspiracy and accusation
under Section 212 IPC alleging harbouring is a matter
to be tested, examined and proved during the trial.
Besides this even the accusation under Section 24,
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54 and 59 of the Arms Act appears to be highly
suspicious for the reason that the entire prosecution
story alleges that 10 cartridges were handed over by
Tashu Sidhu to Sumit Jaswal, which in turn is
alleged to have given the same to the bail petitioner
whereas a perusal of the RFSL Report indicates that
12 cartridges were allegedly fired on the said date.
In these circumstances, the factum as to whether the
fired cartridges by two shooters were the same, which
were handed over by Sumit Jaswal to bail petitioner
(Lakhwinder Singh] renders prosecution story suspicious
at this stage. Moreover, the allegations are yet to
be tested, examined and proved during the trial. In
in these circumstance, the State Authorities cannot
prolong the detention resulting in an unwarranted
incarceration of the bail petitioner on mere allegations
so as to curtail the personal liberty of the petitioner.
Accordingly, the prayer for bail carries force and the
same is accordingly accepted.
CLAIM FOR BAIL ON PARITY WHEN OTHER CO-
ACCUSED GRANTED BAIL:
11(iv). Learned Senior Counsel Mr. N.S. Chandel,
states at this stage, that once three other co-accused,
namely, Vansh Raijada, Lovdeesh Sandhu and Tashu
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Sidhu have been enlarged on bail then the petitioner
may be extended similar treatment.
The above plea carries weight in view of
the role attributed to the three released co-accused
vis-à-vis the role allegedly attributed to the bail
petitioner. Incase of co-accused, [Tashu Sidhu] who is
alleged to have handed over 10 cartridges to accused
Sumit Jaswal has been enlarged on bail then the
claim of petitioner for bail, against whom, no prima
facie accusation or reasonable grounds exists carries
weight. Likewise, once another co-accused Vansh
Raijada, who was alleged to be in direct contact with
prime accused Arun Kumar alias Mani Ram has been
released on bail then the claim of the petitioner for
bail carries weight against whom no prima facie
material exits and similarly, once another co-accused,
Lovdeesh Sandhu, who was alleged to be the shooter,
who was alleged to have opened fire alongwith
another shooter, Satinder Pal, on the complainant,
then the bail petitioner [Lakhwinder Singh alias Abhi],
who has no role in alleged incident of shooting the
complainant, then, the plea of the petitioner for bail
on principle of parity in bail carries weight and the
same is accordingly granted.
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PRESUMPTION OF INNOCENCE-CLAIM FOR
BAIL:
11(v). Implicating the petitioner on the basis
of mere suspicion or conjectures when, the accusation
is yet to be examined, considered and proved during
the trial cannot be permitted, for the reason that till
the accusation is proved, an accused, including the
petitioner-accused is to be treated as innocent in
the eyes of law. Denial of bail can neither be punitive
nor preventative as per mandate of law, of the Hon’ble
Supreme Court of India in the case of Guddan alias
Roop Narayan Versus State of Rajasthan, 2023
SCC OnLine SC 1242, in the following terms:-
“11. In the case of Sanjay Chandra V. Central
Bureau of Investigation, (2012) 1 SCC 40, while
hearing a bail Application in a case of an
alleged economic offence, this court held that
the object of bail is neither punitive nor
preventative. It was observed as under:
“21. In bail applications, generally, it has been
laid down from the earliest times that 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 is 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.
23. Apart from the question of prevention being
the object of refusal of bail, one must not
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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
purpose of giving him a taste of
imprisonment as a lesson.
25. The provisions of CrPC confer discretionary
jurisdiction on criminal courts to grant
bail to the accused pending trial or in
appeal against convictions; since the
jurisdiction is discretionary, it has to
be exercised with great care and
caution by balancing the valuable right
of liberty of an individual and the
interest of the society in general. In our
view, the reasoning adopted by the learned
District Judge, which is affirmed by the
High Court, in our opinion, is a denial of
the whole basis of our system of law
and normal rule of bail system. It
transcends respect for the requirement
that a man shall be considered innocent
until he is found guilty. If such power is
recognised, then it may lead to chaotic
situation and would jeopardise the
personal liberty of an individual.
27. This Court, time and again, has stated that
bail is the rule and committal to jail an
exception. It has also observed that
refusal of bail is a restriction on
the personal liberty of the individual
guaranteed under Article 21 of the
Constitution.”
12. Further, in the case of Sandeep Jain v. National
Capital Territory of Delhi, (2000) 2 SCC 66,
this Court, while hearing a bail application
held that conditions for grant of bail cannot
become so onerous that their existence
itself is tantamount to refusal of bail.
This Court held as under:
” We are unable to appreciate even the
first order passed by the Metropolitan
Magistrate imposing the onerous condition
that an accused at the FIR stage should
pay a huge sum of Rs. 2 lakhs to be set at
liberty. If he had paid it is a different
matter. But the fact that he was not able to
pay that amount and in default thereof he
is to languish in jail for more than 10
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months now, is sufficient indication that he
was unable to make up the amount. Can
he be detained in custody endlessly for
his inability to pay the amount in the
range of Rs.2 lakhs? If the cheques issued
by his surety were dishonoured, the Court
could perhaps have taken it as a ground
to suggest to the payee of the cheques
to resort to the legal remedies provided
by law.
Similarly if the Court was dissatisfied
with the conduct of the surety as for his
failure to raise funds for honouring the
cheques issued by him, the Court could
have directed the appellant to substitute
him with another surety. But to keep
him in prison for such a long period,
that too in a case where bail would
normally be granted for the offences
alleged, is not only hard but improper.
It must be remembered that the Court has
not even come to the conclusion that the
allegations made in the FIR are true. That
can be decided only when the trial
concludes, if the case is charge-sheeted by
the police.”
REFORMATIVE INTENT AND CLAIM FOR BAIL:
11(vi). While dealing with claim for bail, the
humanist and reformative intent and the personal
liberty, being sacrosanct, under Article 21 of the
Constitution of India, needs to be balanced and
given due weightage as per the mandate of the
Hon’ble Supreme Court, in Criminal Appeal No. 2787
of 2024, titled as Javed Gulam Nabi Shaikh versus
State of Maharashtra and Another, in the following
terms:-
“18 Criminals are not born out but made.
The human potential in everyone is
good and so, never write off any
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criminal as beyond redemption. This
humanist fundamental is often missed
when dealing with delinquents,
juvenile and adult. Indeed, every saint
has a past and every sinner a future.
When a crime is committed, a variety
of factors is responsible for making the
offender commit the crime. Those
factors may be social and economic, may
be, the result of value erosion or parental
neglect; may be, because of the stress of
circumstances, or the manifestation of
temptations in a milieu of affluence
contrasted with indigence or other
privations.”
ADHERANCE TO PRINCIPLE:- BAIL IS RULE:
11(vii). Depriving the petitioner the concession of
bail shall negate the principle that ‘bail is a rule and
jail is an exception’, as has been outlined by the
Hon’ble Supreme Court, in Manish Sisodia vs Directorate
of Enforcement, SLP (Criminal) No. 8781 of 2024,
decided on 09.08.2024, as under :-
“49. We find that, on account of a long period
of incarceration running for around 17
months and the trial even not having
been commenced, the appellant has been
deprived of his right to speedy trial.
50. As observed by this Court, the right to
speedy trial and the right to liberty are
sacrosanct rights. On denial of these
rights, the trial court as well as the High
Court ought to have given due weightage
to this factor.
52. The Court also reproduced the
observations made in Gudikanti
Narasimhulu (supra), which read thus:
“10. In the aforesaid context, we may
remind the trial courts and the High
Courts of what came to be observed
by this Court in Gudikanti
Narasimhulu v. Public Prosecutor,
High Court reported in (1978) 1 SCC
– 24 – 2024:HHC:10423
240. We quote:
” What is often forgotten, and
therefore warrants reminder, is the
object to keep a person in judicial
custody pending trial or disposal of
an appeal. Lord Russel, C.J., said
[R v. Rose, (1898) 18 Cox]:
” I observe that in this case bail
was refused for the prisoner. It
cannot be too strongly impressed
on the, magistracy of the country
that bail is not to be withheld as
a punishment, but that the
requirements as to bail are
merely to secure the attendance
of the prisoner at trial”
53. The Court further observed that, over a
period of time, the trial courts and the
High Courts have forgotten a very well-
settled principle of law that bail is not to
be withheld as a punishment. From our
experience, we can say that it appears
that the trial courts and the High Courts
attempt to play safe in matters of grant of
bail. The principle that bail is a rule
and refusal is an exception is, at times,
followed in breach. On account of non-
grant of bail even in straight forward
open and shut cases, this Court is
flooded with huge number of bail
petitions thereby adding to the huge
pendency. It is high time that the trial
courts and the High Courts should
recognize the principle that “bail is
rule and jail is exception”.
55. As observed by this Court in the case of
Gudikanti Narasimhulu (supra), the
objective to keep a person in judicial
custody pending trial or disposal of an
appeal is to secure the attendance of
the prisoner at trial.
56. As observed by this Court in the case of
Gudikanti Narasimhulu (supra), the
objective to keep a person in judicial
custody pending trial or disposal of an
appeal is to secure the attendance of
the prisoner at trial.
57. Insofar as the apprehension given by the
learned ASG regarding the possibility of
tampering the evidence is concerned, it is
to be noted that the case largely depends
– 25 – 2024:HHC:10423
on documentary evidence which is
already seized by the prosecution. As
such, there is no possibility of
tampering with the evidence. Insofar
as the concern with regard to
influencing the witnesses is
concerned, the said concern can be
addressed by imposing stringent
conditions upon the appellant.”
NO APPREHENSION OF TAMPERING WITH
EVIDENCE OR WITNESSES:
11(viii). Learned State Counsel has not indicated
any adversial circumstances pointing out any likelihood
of the bail petitioner tampering with evidence or the
witnesses. Inabsence of any such apprehension, the
claim of the petitioner for bail needs to be accepted.
Ordered accordingly.
STATUS REPORT(S) INDICATING PAST
CRIMINAL ANTECEDENTS:
11(ix). Learned State Counsel opposes the bail
on the ground that once F.I.R. i.e. FIR No.223 of
2018 dated 11.08.2018 has been registered at
Police Station Haroli against the bail petitioner.
The above plea, based on solitary past criminal
antecedents [as in FIR] cannot be made the basis
for curtailing the personal liberty of the petitioner, in
view of the mandate of the Hon’ble Supreme Court
in Prem Prakash versus Union of India through
– 26 – 2024:HHC:10423
Directorate of Enforcement, 2024 SCC OnLine SC
2270, in following terms:-
“46. The Investigating Agency have also
referred to ECIR No. 4 as a criminal
antecedent. A reference was made to
ECIR No. 4 of 2022 pertaining to illegal
Stone Mining and related activities in
Saheb Ganj, Jharkhand, where the
petitioner was arrested on 25.08.2022
and the prosecution complaint was filed
on 16.09.2022. Insofar as the bail
pertaining to ECIR No. 4 of 2022, which
is pending in this Court in SLP
(Criminal) No. 691 of 2023, at the after
notice stage, the merits of the bail in
that case will be independently
examined. Having examined the facts of
the present case arising out of ECIR No.
5 of 2023 and in view of the findings
recorded hereinabove, we do not think
that the appellant can be denied bail
based on the pendency of the other
matter. We say so in the facts and
circumstances of the present case as we
do not find any justification for his
continued detention. The appellant has
already been in custody for over one
year. The Trial is yet to commence.
There is a reference to one more ECIR
which the Investigating Agency refers to
in their counter, namely,
ECIR/RNZO/18/2022 but nothing is
available from the record as to whether
any proceedings have been taken
– 27 – 2024:HHC:10423
against the appellant.
49. In the result, we pass the following
order:-
(i) The appeal is allowed and impugned
order dated 22.03.2024 is quashed and
set-aside. (ii) The Trial Court is directed
to release the appellant on bail in
connection with ED case No. ECIR No.
5 of 2023 on furnishing bail bonds for a
sum of Rs.5 lakh with 2 sureties of the
like amount.”
Taking into account the facts and the
mandate of law, in case of Prem Prakash (supra), this
Court is of the considered view, that mere registration
of an Earlier FIR and the proceedings, if any, cannot
be made the basis for denying bail, which shall
amount to incarceration by way of punishment on
mere surmises-conjectures accusations, which are yet
to undergo the test of veracity and its examination
and proof during the trial. Previously lodged FIR,
if any, cannot be the sole basis to deny bail in
the facts of the instant case.
PROLONGED INCARCERATION ILLEGAL- WHEN
TRIAL TO TAKE CONSIDERABLE TIME:
11(x). Learned Senior Counsel for the petitioner
submits that though the police has filed the Challan
on 3.2.2024 and then the Supplementary Challan on
– 28 – 2024:HHC:10423
13.9.2024 and the Learned Senior Counsel states that
the prosecution intends to examine 78 PWs and the
trial is at initial stage and its conclusion is likely
to take considerable time.
In these circumstances, once the State
Authorities have failed to ensure speedy trial for the
last more than 11 months till now and the conclusion
of trial is likely to take considerable time, therefore,
the prolongation of detention [since 7.11.2023] certainly
amounts to curtailing the personal liberty and defeating
the right of the petitioner for speedy trial as mandated
under Article 21 of the Constitution of India. Denial
of speedy trial confers a right on an accused for
bail, in terms of the mandate of Hon’ble Supreme Court
in V. Senthil Balaji versus The Deputy Director,
Directorate of Enforcement in Criminal Appeal No.
4011 of 2024 in the following terms:
“25. Considering the gravity of the offences in
such statutes, expeditious disposal of
trials for the crimes under these
statutes is contemplated. Moreover,
such statutes contain provisions laying
down higher threshold for the grant
of bail. The expeditious disposal of
the trial is also warranted considering
the higher threshold set for the grant
of bail. Hence, the requirement of
expeditious disposal of cases must be
read into these statutes. Inordinate
delay in the conclusion of the trial
– 29 – 2024:HHC:10423
and the higher threshold for the grant
of bail cannot go together. It is a
well-settled principle of our criminal
jurisprudence that “bail is the rule,
and jail is the exception.” These stringent
provisions regarding the grant of bail,
such as Section 45(1)(iii) of the PMLA,
cannot become a tool which can be
used to incarcerate the accused without
trial for an unreasonably long time.
26. 26. There are a series of decisions of this
Court starting from the decision in the case
of K.A. Najeeb’, which hold that such
stringent provisions for the grant of bail do
not take away the power of Constitutional
Courts to grant bail on the grounds of
violation of Part III of the Constitution of
India. We have already referred to
paragraph 17 of the said decision, which
lays down that the rigours of such
provisions will melt down where there is no
likelihood of trial being completed in a
reasonable time and the period of
incarceration already undergone has
exceeded a substantial part of the
prescribed sentence. One of the reasons is
that if, because of such provisions,
incarceration of an undertrial accused is
continued for an unreasonably long time,
the provisions may be exposed to the vice
of being violative of Article 21 of the
Constitution of India.
27. Under the Statutes like PMLA, the
minimum sentence is three years, and the
maximum is seven years. The minimum
sentence is higher when the scheduled
offence is under the NDPS Act. When
the trial of the complaint under PMLA
is likely to prolong beyond reasonable
limits, the Constitutional Courts will
have to consider exercising their powers
to grant bail. The reason is that Section
45(1)i) does not confer power on the
State to detain an accused for an
unreasonably long time, especially when
there is no possibility of trial concluding
within a reasonable time. What a
– 30 – 2024:HHC:10423
reasonable time is will depend on the
provisions under which the accused is
being tried and other factors. One of
the most relevant factor is the duration
of the minimum and maximum sentence
for the offence. Another important
consideration is the higher threshold or
stringent conditions which a statute
provides for the grant of bail. Even an
outer limit provided by the relevant
law for the completion of the trial, if
any, is also a factor to be considered. The
extraordinary powers, as held in the
case of K.A. Najeeb’, can only be exercised
by the Constitutional Courts. The Judges
of the Constitutional Courts have vast
experience. Based on the facts on record,
if the Judges conclude that there is no
possibility of a trial concluding in a
reasonable time, the power of granting bail
can always be exercised by the
Constitutional Courts on the grounds of
violation of Part IlI of the Constitution
of India notwithstanding the statutory
provisions. The Constitutional Courts
can always exercise its jurisdiction under
Article 32 or Article 226, as the case
may be. The Constitutional Courts have
to bear in mind while dealing with
the cases under the PMLA that, except
in a few exceptional cases, the
maximum sentence can be of seven
years. The Constitutional Courts cannot
allow provisions like Section 45(1)(ii)
to become instruments in the hands
of the ED to continue incarceration
for a long time when there is no
possibility of a trial the scheduled
offence and the PMLA offence
concluding within a reasonable time.
If the Constitutional Courts do not
exercise their jurisdiction in such
cases, the rights of the undertrials
under Article 21 of the Constitution
of India will be defeated. In a given
case, if an undue delay in the disposal
of the trial of scheduled offences or
disposal of trial under the PMLA can be
– 31 – 2024:HHC:10423
substantially attributed to the accused,
the Constitutional Courts can always
decline to exercise jurisdiction to issue
prerogative writs. An exception will also
be in a case where, considering the
antecedents of the accused, there is
every possibility of the accused becoming
a real threat to society if enlarged on
bail. The jurisdiction to issue prerogative
writs is always discretionary.
29. As stated earlier, the appellant has been
incarcerated for 15 months or more for the
offence punishable under the PMLA. In the
facts of the case, the trial of the scheduled
offences and, consequently, the PMLA
offence is not likely to be completed in
three to four years or even more. If the
appellant’s detention is continued, it will
amount to an infringement of his
fundamental right under Article 21 of the
Constitution of India of speedy trial.
31. Therefore, the appeal is allowed, and the
appellant shall be enlarged on bail till the
final disposal of CC No. 9 of 2023 pending
before the Principal Session Judge,
Chennai, on the following conditions:
a. The appellant shall furnish bail
bonds in the sum of Rs.25,00,000/-
(Rupees twenty-five lakhs only) with
two sureties in the like amount;
b. The appellant shall not directly or
indirectly attempt to contact or
communicate with the prosecution
witnesses and victims of the three
scheduled offences in any manner. If
it is found that the appellant directly
or indirectly made even an attempt
to contact any prosecution witness
or victim in the scheduled as well as
offences under the PMLA, it will be a
ground to cancel the bail granted to
the appellant;
c. The appellant shall mark his
attendance every Monday and Friday
between 11 am and 12 noon in the
– 32 – 2024:HHC:10423
office of the Deputy Director, the
Directorate of Enforcement at
Chennai. He shall also appear on
the first Saturday of every calendar
month before the investigating
officers of the three scheduled
offences;
d. Before the appellant is enlarged on
bail, he shall surrender his passport
to the Special Court under the PMLA
at Chennai;
e. The appellant shall regularly and
punctually remain present before
the Courts dealing with scheduled
offences as well as the Special Court
and shall cooperate with the Courts
for early disposal of cases; and
f. If the appellant seeks adjournments
on non-existing or frivolous grounds
or creates hurdles in the early
disposal of the cases mentioned
above, the bail granted to him shall
be liable to be cancelled.
11(xi). While dealing with the claim for bail in
matter borne out from accusation in offence where there
are versions and cross- versions coupled with the fact
that the accused has suffered incarceration for more
than several months coupled with the fact there
is no much progress in trial and trial was to take
considerable time, the Hon’ble Supreme Court, in
Mukesh Kumar versus State of Rajasthan and another,
2023 SCC OnLine SC 2025, granted bail to accused
therein, in following terms:-
2. The petitioner is accused of giving one blow
on the head of the deceased with a
– 33 – 2024:HHC:10423
danda (Bamboo). It may also be mentioned
that occurrence took place on 08-06-2020
and the deceased succumbed to his
injuries on 12-06-2020.
5. After cancellation of bail by the High Court,
the petitioner has again surrendered on
16-11-2022 and is in custody.
7. It may be seen that there are cross-
versions and both sides suffered injuries.
The question as to who was the
aggressor will depend upon the
appreciation of evidence and will be
decided by the Trial Court at an
appropriate stage. It is not expedient or
desirable for this Court to express any
opinion in relation thereto at this stage.
8. Suffice to say that the petitioner has
been in custody for more than 14
months, the crucial witnesses have since
been examined and there is no likelihood
of tampering with the evidence. Even
otherwise also, the witnesses are close
family members of both sides, hence there
is no likelihood of winning over the
witnesses.
9. Since conclusion of trial will take
considerable time, we deem it appropriate
to release the petitioner on bail.
11. Consequently, without expressing any
views on the merits of the case, the
petitioner is directed to be released on
bail, subject to his furnishing bail bonds to
the satisfaction of the Trial Court.
12. The petitioner and his family members as
well as Respondent No. 2 and his family
members will ensure that no untoward
incident takes place again.
11(xii). While adjudicating the claim for bail,
even under Special Enactments, like PMLA [akin to
NDPS Act], the Hon’ble Apex Court in Criminal Appeal
No._____ of 2024 [Arising out of SLP (Criminal) No.
– 34 – 2024:HHC:10423
10778 of 2024], titled as Kalvakuntla Kavitha v
ersus Directorate of Enforcement and connected
matter has mandated that fundamental right of liberty
provided under Article 21 of the Constitution of India
is superior to the statutory restrictions, in the following
terms:-
“13. We had also reiterated the well-
established principle that “bail is the
rule and refusal is an exception”.
We had further observed that the
fundamental right of liberty
provided under Article 21 of the
Constitution is superior to the statutory
restrictions.”
Keeping in view the factual matrix that
no reasonable grounds exist against the bail petitioner,
as referred to above, coupled with the fact the bail
petitioner has suffered incarceration for more than
eleven months now [since 7.11.2023] and even trial is
likely to take considerable time then, further detention
shall certainly amount to depriving and curtailing
the personal liberty of the petitioner on mere accusation or
conjectures or surmises, which are yet to be tested,
examined and proved during the trial. Detention of
the petitioner can neither be punitive nor preventative,
so as to make the petitioner to taste imprisonment
as a lesson. Denial of bail shall certainly violates
– 35 – 2024:HHC:10423
principle that “bail is rule and jail is an exception”.
Even, the State Authorities, have failed to ensure speedy
trial and still considerable time is likely to be taken
for conclusion of trial, then, in view of mandate of law
in the cases of Guddan alias Roop Narayan, Javed
Gulam Nabi Shaikh, Manish Sisodia and Kalvakuntla
Kavitha [supra], the petitioner deserves to be released
on bail.
NOTHING RECOVERABLE FROM BAIL
PETITIONER:
12. Status Reports filed by the State Authorities
do not indicate that any recovery is still attributable to
the petitioner in the aforesaid incident.
NOTHING ADVERSIAL OBSTRUCTING OR
ATTEMPTING TO THRAWTLING JUSTICE:
13. The Status Reports filed by State Authorities
have neither pointed out any adversarial circumstances
nor placed any material on record, at this stage, to
infer that after release on bail, the petitioner may
obstruct or thwart the cause of justice in any manner.
However, the apprehension if any, of the State Authorities
are being adequately safeguarded by imposing stringent
bail conditions herein, in the instant case.
NOTHING ADVERSIAL REGARDING REPITITION
OF OFFENCE AFTER BAIL:
– 36 – 2024:HHC:10423
14. Status Reports filed by the State Authorities
have not expressed any apprehension of repetition of
offence after release on bail, which, still is being
taken care of, by imposing stringent bail conditions
in later part of this bail order.
CONCLUSION AND DIRECTIONS:
15. Taking into account the entirety of the
facts and circumstances and the mandate of law
and the discussion made hereinabove and the reasons
recorded hereinabove, instant petition is allowed and
the claim of the bail petitioner [Lakhwinder Singh
alias Abhi] is accepted; with directions to the State
Authorities to enlarge the petitioner on bail, subject
to the observance of the following conditions:-
(i) Respondent-State Authorities shall release
the bail petitioner, on furnishing his
personal bond to the tune of Rs.1,00,000/-
[Rupees One Lac] with one surety in
the like amount to the satisfaction of
Learned Trial Court concerned;
(ii) Petitioner shall abide by all other
conditions, as may be imposed by the
Learned Trial Court, if any, in view of
this order;
(iii) Petitioner shall neither involve himself nor
shall abet the commission of any offence
hereinafter. Any involvement or abetting
shall entail the withdrawal of concession in
terms of this order;
- 37 - 2024:HHC:10423
(iv) Petitioners shall disclose their functional
E-Mail IDs/WhatsApp numbers and that of
his surety to the Learned Trial Court ;
(v) Petitioner shall not jump over the bail and
also shall not leave the country without
prior information of the Court;
(vi) Petitioner shall join the trial without fail,
except on grounds permissible in law ;
(vii) Petitioners shall not tamper with the
witnesses or the evidence in any manner;
(viii) Petitioner shall not directly or indirectly
make any inducement, threat or promise to
any person acquainted with the facts of the
case or the witnesses;
(ix) It is clarified that violation of any of the
conditions imposed hereinabove, shall
entail cancellation of bail automatically;
and
(x) State Authorities are free to move this
Court for seeking alteration/modification
of any condition(s), if necessary, in
the facts and circumstances, at any time
herein-after.
(xi) Petitioner shall surrender is passport
before the trial Court.
16. It is clarified that any observations made
hereinabove shall not be construed as findings
either for the purposes of investigation or trial,
which shall proceed independently, in accordance
with law, without being swayed away or prejudiced
by any of the observations made hereinabove.
In aforesaid terms, the petition is allowed
– 38 – 2024:HHC:10423
and all pending miscellaneous application(s) shall
stand disposed of.
(Ranjan Sharma)
Judge
29th October, 2024
™
Digitally signed by TARUN MAHAJAN
TARUN
DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH
COURT OF HIMACHAL PRADESH SHIMLA, Phone=
887aba774dfe8f4f3e95a41c7aa2abacb4ecee8f82efd8f56ec39f8e6b4
42b68, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER
=
3ff6ebe501e8d7c8d73d0e5a5294bacca3f198d7d66b105bbf50717967
MAHAJAN
3109f5, CN=TARUN MAHAJAN
Reason: I am the author of this document
Location: 12345678
Date: 2024.10.29 15:13:53+05’30’
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