Himachal Pradesh High Court
Decided On : 28.10.2024 vs State Of Himachal Pradesh on 28 October, 2024
2024:HHC:10421
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr.MP (M) No.2124 of 2024
Decided on : 28.10.2024
_________________________________________________________
Laj Ram …….Petitioner
Versus
State of Himachal Pradesh ……Respondent
For the petitioner: Mr. Amrinder Singh Rana,
Advocate
For the respondent: Mr. Vishav Deep Sharma,
Additional Advocate General.
Coram
{{{{
Hon’ble Mr. Justice Ranjan Sharma, Judge
Whether approved for reporting?
Ranjan Sharma, Judge
Bail petitioner [Laj Ram] has come up
before this Court, seeking pre-arrest bail under Section
482 of the Bhartiya Nagrik Suraksha Sanhita
[hereinafter referred to as ‘B.N.S.S’], originated from
FIR No.139 of 2024, dated 28.05.2024, under Sections
341, 147, 149, 186, 353, 379, 382 and 504 of Indian
Penal Code [hereinafter referred to as ‘IPC’] and
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Section 21 (1) of the Mines Act, 1952 registered at Police
Station Nalagarh, District Solan [H.P.].
FACTUAL MATRIX:
2. Case set up by Learned Counsel Mr. Amrinder
Singh Rana, Advocate, assisted by Ms. Kamlesh Kumari,
Advocate, in this petition is that on 28.05.2024 a police
party headed by Constable Avtar Dhiman was deputed in
ALFA-V duty in the security of Superintendent of Police
Baddi and while they were on routine night patrolling,
the SHO also joined them at about 12:30 AM when, they
found a JCB machine indulging in illicit mining at
Rampur Khad.
It is further submitted that the aforesaid JCB
machine was confiscated by Constable Avtar Dhiman on
the instructions of SHO and the said confiscated
machine was being taken to Police Post Baghari. It is also
averred that as soon as the police party reached along
with JCB machine near the house of Pradhan Bairchha
then, Ex-Pradhan namely Joginder Pal @ Jindu stopped
the JCB machine. It is further alleged that it was at the
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instance of the accused Joginder Pal @ Jindu, that he
summoned a white colour car, wherein some persons
came to the spot and started misbehaving with the police
personnel and took the custody of the JCB machine from
the custody of the police. It is further averred that the
main accused, Joginder Pal @ Jindu, hurled abuses on
the police personnel including SHO on the said night. It
is further averred that this incident lead to the
registration of FIR No.139/2024 dated 28.05.2024, with
Police Station Nalagarh.
2(ii). Instant bail petition narrate that the bail
petitioner had filed anticipatory bail applications before
this Court vide Cr.MP(M) Nos.1147 of 2024, which were
withdrawn on 31.05.2024. Feeling aggrieved, the bail
petitioner moved to Learned Trial Court i.e. Learned
Additional Sessions Judge, Nalagarh [HP], by way of
fresh bail application which was also dismissed on
25.06.2024 [Annexure P-2].
2(iii) It is averred by the bail petitioner, that he has
been falsely implicated and he has no connection with
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the commission of any offence as detailed in FIR. It is
averred that the Learned Additional Sessions Judge,
Nalagarh dismissed the bail application on 25.06.2024,
by recording a finding in Para 10 of the bail order, that
the vehicle [No.PB48E-2187] is yet to be recovered from
the petitioner. The bail petitioner has furnished an
undertaking that he is ready and willing to join the
investigation and cooperate with the investigating
agency. It is averred that he shall not cause any
inducement, threat or promise to any person, persons or
witnesses who are acquainted with the facts of the case
in any manner. Another undertaking has been furnished
that the bail petitioner has deep root in the society and
he participated in the investigation and the
consequential trial, if any. In Para 6 it is submitted that
two co-accused namely, Balwinder Kaur and main
accused Joginder Pal @ Jindu, who was the main
accused have been enlarged on anticipatory bail by this
Court on 31.07.2024 and 24.08.2024, respectively.
2(v). It is further averred that bail petitioner is
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innocent and has been falsely implicated and there is no
direct or indirect evidence connecting him with the
alleged offence. It is further averred that the bail
petitioner belongs to a respectable family and has deep
roots in the society and there is no question of his fleeing
away from the investigation or the trial. It is further
averred that the investigation is over and nothing
incriminating is to be recovered by the police from the
bail petitioner. It is further averred that the bail
petitioner has been falsely roped and he has
subsequently furnished undertaking before this Court
that he shall join the investigation and shall not cause
any inducement, threat or promise to any person or
persons acquainted with the facts of the case.
It is in this background, that the petitioner
has filed the instant bail petition.
PROCEEDINGS BEFORE THIS COURT:
3. The instant bail application Cr.MP(M)
No.2124 of 2024 was listed before this Court on
20.09.2024 when, this Court issued notice to the
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Respondent-State Authorities to furnish the Status
Report. Keeping in view the averments made in the bail
application, this Court granted interim bail to the bail
petitioner on 20.09.2024. .
The matter was listed on 15.10.2024, when,
the State Authorities filed the Status Report dated
15.10.2024 on instructions of Station House Officer,
Police Station Nalagarh, District Baddi (HP) and copy
thereof, was furnished to the Learned Counsel for the
petitioner who prayed for time to go through the Status
Report and make submissions. Accordingly, matter was
listed on 28.10.2024 when, with the consent of the
parties, the same was finally heard by this Court.
STAND OF STATE AUTHORITIES:
4. Perusal of the Status Report dated
15.10.2024, filed by the State Authorities, reiterates the
averments made by the bail petitioner in the instant bail
application. The Status Report reveals that the entire
incident occurred on 28.05.2024 at about 12:30 in
the night when, a JCB was confiscated by the patrolling
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police party, namely Avtar Singh Dhiman in Rampur
Khud, in Baddi/Nalagarh.
4(i) The Status Report further indicates that after
confiscation, while the JCB was being taken by two
police personnel namely Avtar Singh Dhiman and Sunil
Kumar from Rampur Khud to Police Post Baghari,
the same was intersected on reaching village Bairchha by
the Joginder Pal @ Jindu. Status Report indicates that
on the call of the co-acused Joginder Pal, four accused
persons namely Hem Raj, Kashmira Singh @ Bittu,
Ram Ji and Laj Ram [bail petitioner], came in a car
bearing Registration No.PB-48E-2187 and thereafter all
the accused, including the bail petitioner alongwith their
relatives and local residents of Village Bairchha started
misbehaving with the police personnel, hurled abuses on
the police, including SHO.
In this background, the Learned State Counsel
has opposed the bail petition and prayed for the
dismissal of the bail application.
5. Heard, Mr. Amrinder Singh Rana, Learned
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Counsel, for the bail petitioner and Mr. Vishav Deep
Sharma, Learned Additional Advocate General, for the
respondent-State.
STATUTORY PROVISIONS:
6. Before dealing with the bail petition, it is
necessary to take note of the provisions of Sections
341, 147, 149, 186, 353, 379, 382, 504 of IPC and
Section 21(1) of the Mines Act, which read as under:-
“Section 341 Indian Penal Code:
341. Punishment for wrongful restraint:
Whoever wrongfully restrains any person shall be
punished with simple imprisonment for a term
which may extend to one month, or with fine
which may extend to five hundred rupees, or with
both.
Section 147 Indian Penal Code:
147. Punishment for rioting:-
Whoever is guilty of rioting, shall be punished
with imprisonment of either description for a term
which may extend to two years, or with fine, or
with both.
Section 149 Indian Penal Code:
149. Every member of unlawful assembly
guilty of offence committed in prosecution of
common object:
If an offence is committed by any member of an
unlawful assembly in prosecution of the common
object of that assembly, or such as the members
of that assembly knew to be likely to be
committed in prosecution of that object, every
person who, at the time of the committing of that
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offence, is a member of the same assembly, is
guilty of that offence.
Section 186 Indian Penal Code:
186. Obstructing public servant in discharge of
public functions:
Whoever voluntarily obstructs any public servant
in the discharge of his public functions, shall be
punished with imprisonment of either description
for a term which may extend to three months, or
with fine which may extend to five hundred
rupees, or with both.
Section 353 Indian Penal Code:
353. Assault or criminal force to deter public
servant from discharge of his duty:
Whoever assaults or uses criminal force to any
person being a public servant in the execution of
his duty as such public servant, or with intent to
prevent or deter that person from discharging his
duty as such public servant, or in consequence of
anything done or attempted to be done by such
person to the lawful discharge of his duty as such
public servant, shall be punished with
imprisonment of either description for a term
which may extend to two years, or with fine, or
with both.
Section 379 Indian Penal Code:
379. Whoever commits theft shall be punished
with imprisonment of either description for a term
which may extend to three years, or with fine, or
with both.
Section 382 Indian Penal Code:
382. Theft after preparation made for causing
death, hurt or restraint in order to the
committing of the theft.–
382. Whoever commits theft, having made
preparation for causing death, or hurt, or
restraint, or fear of death, or of hurt, or of
restraint, to any person, in order to the
committing of such theft, or in order to the
effecting of his escape after the committing of
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such theft, or in order to the retaining of property
taken by such theft, shall be punished with
rigorous imprisonment for a term which may
extend to ten years, and shall also be liable to
fine.
Section 504 Indian Penal Code:
504. Intentional insult with intent to provoke
breach of the peace:
Whoever intentionally insults, and thereby gives
provocation to any person, intending or knowing
it to be likely that such provocation will cause
him to break the public peace, or to commit any
other offence, shall be punished with
imprisonment of either description for a term
which may extend to two years, or with fine, or
with both.
Section 21(1) of the Mines Act:
21(1) Medical appliances:
In every mine there shall be provided and
maintained so as to be readily accessible during
all working hours such number of first-aid boxes
or cupboards equipped with such contents as
may be prescribed.
7. Notably, the claim of the suspect-accused
for pre-arrest or post-arrest bail-regular bail is to
be examined/tested within the parameters prescribed
in the Code of Criminal Procedure and also the broad
para-meters mandated by the Hon’ble Supreme
Court while dealing with the claim for 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
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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 exist which
lead to believe or point out towards the accusation
and even these parameters for bail have been reiterated
in Sushila Aggarwal versus State-NCT Delhi, (2020)
5 SCC 01.
8. While dealing with the case for grant of
bail, three judges bench of the Hon’ble Supreme Court,
after reiterating the broad parameters, has mandated
in Deepak Yadav versus State of Uttar Pradesh,
(2022) 8 SCC 559, in Para-25 that the “nature of
crime” has a huge relevancy, while considering the claim
for bail.
9. In the case of Ansar Ahmad versus State
of Uttar Pradesh, 2023 SCC Online SC 974, the
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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 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;
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(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 Cr. PC, as the case may be.”
In normal parlance, the general principle of
law is that while considering the prayer for bail
[pre-arrest bail or regular bail], a prima facie opinion
is to gathered as to whether reasonable grounds
exist pointing towards the accusation or whether the
accusation is frivolous and groundless with the object
of either injuring or humiliating or whether a person
has falsely roped in the crime needs to be tested
in background of self-imposed restrains or the broad
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parameters mandated by law, as referred to herein
above.
10. 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 Directorate of Enforcement, decided on
14.12.2023, while considering the prayer for bail, a
Court is not required to weigh the evidence collected by
the Investigating Agency meticulously, nonetheless, the
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 accused, circumstances which are peculiar
to the accused, the reasonable possibility of securing
presence of accused during the trial, reasonable
apprehension of evidence being tampered with or any
possibility of causing an inducement, threat or promise
to either the witnesses or complainant or victim by
carving out a balance between the liberty of an accused
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vis-à-vis the societal interests of the public-State at
large.
In this background, while testing the claim
for bail, the Court, is required to form a prima facie
opinion in the context of the broad-parameters 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.
ANALYSIS OF CLAIM IN INSTANT CASE:
11. After taking into account the entirety of
facts and circumstances, statutory provisions and the
mandate of law and on considering the material on
record, including the Status Report this Court is of
the considered view that the interim bail granted to the
petitioner on 20.09.2024 is made absolute, and the
petitioner is enlarged on bail, for the following reasons:-
11(i) The material on record, does not points
out any prima facie accusation, against the bail
petitioner.
11(ii) The material on record, including the Status
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Report dated 15.10.2024, does not indicate that
reasonable grounds exists for believing the accusation
against the bail petitioner.
The Status Report indicates that the only
accusation, spelt out in the Status Report dated
15.10.2024 by the State-Police Authorities is that
while the confiscated JCB was being taken by the police
personnel, from Rampur Khud to Police Post Baghari
on 28.05.2024, the same was allegedly intersected by
Joginder Pal and thereafter at his call four other persons
namely, Hem Raj, Kashmira Singh, Ram Ji and Laj Ram
[bail petitioner] reached the spot, who was alleged to
have taken away the confiscated JCB from the custody of
the police forcibly and who had hurled abuses entered
into altercation and caused obstruction in performance
of duty by the above police personnel.
In these circumstances, once the Status
Report does not indicate that the petitioner [Laj Ram],
has evaded investigation as and when called or is
required for custodial interrogation by the police. The
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fact as to whether the petitioner had resorted to wrongful
restraint [Section 341 IPC] or assault or criminal force on
police personnel [Section 353 IPC] or had dishonestly
removed property from the custody of police personnel
[Section 379 IPC] or hurling abuses on police personnel
[Section 504 IPC] or was involved for accusation under
Section 21 of the Mines Act, is a matter to be examined;
tested and proved during the trial, coupled with the fact
that the Investigation is complete and nothing is to be
recovered from the petitioner. In these circumstances,
this Court, extends the concession of pre-arrest bail to
the petitioner.
11(iii) Claim of the bail petitioner carries weight for
the reason, firstly, that FIR was registered on 28.05.2024
and despite dismissal of earlier bail application by
Learned Additional Sessions Judge, Nalagarh on
25.06.2024, no consequential action has been taken by
the police against them, as yet; and secondly, earlier bail
application was dismissed by Learned Additional
Sessions Judge, by recording a finding in Para 10 that
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the vehicle [No.PB48E-2187] allegedly used by bail
petitioner is yet to be recovered, which appears to be
perverse when, the Learned Counsel for the petitioner
has placed on record a copy of release order dated
28.05.2024 [Taken on record], which reveals that
aforesaid vehicle stood recovered by police and was
released on Sapurdari by the Court; and thirdly, since
two other accused namely, Balwinder Kaur and main
accused Joginder Pal @ Jindu have been released on bail
by this Court, therefore, the petitioner who assert to have
no role in the matter needs to be accorded interim
protection by this Court.
PARITY WHEN MAIN ACCUSED RELEAED
ON BAIL
11(iv) Claim for bail needs to be accepted when, two
other accused, Balwinder Kaur and main accused
Joginder Pal @ Jindu have been released on bail in
Cr.M.P(M) No.1718 of 2018, titled as Joginder Pal versus
State of Himachal Pradesh, dated 24.08.2024, then, once
the role of the petitioner is highly doubtful and the
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allegations are yet to be proved against the petitioner,
therefore, on the principle of parity, the bail petitioner
[Laj Ram], deserves to be enlarged on bail.
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 proved during the trial and till then the petitioner is to
be treated as innocent in the eyes of law. Denial of bail
can neither be punitive nor preventative, as per the
mandate of law of the Hon’ble Supreme Court of India in
Guddan alias Roop Narayan Versus State of
Rajasthan, 2023 SCC OnLine SC 1242, in 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,
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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 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.”
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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
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 the concept of bail which
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has humanist and reformative intent coupled with the
fact that the personal liberty of an accused under Article
21 of the Constitution of India is sacrosanct, the Hon’ble
Supreme Court, in Criminal Appeal No.2787 of 2024,
titled as Javed Gulam Nabi Shaikh Versus State of
Maharashtra and Another, held as under:-
“18 Criminals are not born out but made. The
human potential in everyone is good and so,
never write off any 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 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 :-
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“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 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
– 24 – 2024:HHC:10421
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. In the present case, the appellant is having deep
roots in the society. There is no possibility of him
fleeing away from the country and not being
available for facing the trial. In any case, conditions
can be imposed to address the concern of the State.
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 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
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stringent conditions upon the appellant.”
11(viii). Pursuant to the orders dated 20.09.2024
granting interim bail, the petitioner has joined
investigation and the Status Report has not narrated any
adversial circumstances that the petitioner has
obstructed the investigation or has threatened the
witnesses, or caused any inducement to them in any
manner.
11(ix) PAST CRIMINAL ANTECEDENTS NOT
‘A GROUND TO DENY BAIL’
State Authorities in the Status Report
indicates FIR has been registered against the bail
petitioner [Laj Ram] i.e. FIR No.137 of 2024, dated
31.07.2024, under Section 61-1-14 Excise Act, registered
at Police Station Nalagarh, and in view of past criminal
antecedents, the bail has been opposed by Learned State
Counsel.
So far as the accusation against bail petitioner
Laj Ram in FIR No.137 of 2024, dated 31.07.2024 is
concerned, the same cannot be the basis for curtailing
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the personal liberty of the petitioner, wherein, the
Hon’ble Supreme Court has mandated in Prem Prakash
versus Union of India through Directorate of
Enforcement, 2024 SCC OnLine SC 2270, pendency of
another accusation (FIR) cannot be the reason to deny
the bail, 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
against the appellant.
49. In the result, we pass the following order:-
(i) The appeal is allowed and impugned order
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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. Thus, the
previously lodged FIR, if any, cannot be the sole basis to
deny bail in instant case.
11(x) NO APPREHENSION OF FLEEING AWAY:
The Status Report filed by the State
Authorities does not indicate any likelihood of the bail
petitioner, fleeing away from the administration of justice
i.e. the Investigation or the Trial. In absence of any such
apprehension by the State Authorities the claim for bail,
– 28 – 2024:HHC:10421
needs to be accepted. Ordered accordingly.
11(xi) NO APPREHENSION OF TAMPERING WITH
EVIDENCE OR WITNESSES:
The Status Report filed by the State
Authorities does not indicate any likelihood of the bail
petitioner tampering with evidence or witnesses. In
absence of any such material in the Status Report, the
claim for bail needs to be accepted. Ordered accordingly.
12. Taking into account the entirety of facts and
circumstances as disclosed in Para 11(i) to 11(ix), supra
and the material on record, the prayer for bail carries
weight, when, the allegations/accusation in the Status
Report are yet to be tested and proceedings the trial.
Denial of bail cannot be by way of punishment. Bail
cannot be withheld on mere surmises; when, the
accusation is not so grave, in facts of this case. Moreover,
the Status Report does not indicate that petitioner
required for Custodial interrogation. Personal liberty of
the petitioner as enshrined in Article 21 of the
Constitution of India cannot be curtailed or taken away
– 29 – 2024:HHC:10421
on the basis of mere accusation, as in this case. Even the
petitioner has furnished the undertakings before this
Court that he will join the Investigation [as and when
called] and shall appear in the trial therefore, in these
circumstances, the petitioner deserves to be released on
bail. Accordingly, the prayer for bail is granted to the
petitioner.
CONCLUSION:
13. In view of above discussion, and for the
reasons hereinabove, the instant bail petition
[i.e. Cr.MP(M) No.2124 of 2024] is allowed and the
interim bail order dated 20.09.2024 passed by this
Court, is made absolute, subject to the compliance of the
conditions contained in the order dated 20.09.2024, by
the bail petitioner [Laj Ram] for all intents and purposes.
14. It is clarified, that any of the observations
made hereinabove shall not be construed as findings
[for or against any of the parties herein for the purposes
of trial], which shall proceed in accordance with law,
without being prejudiced by the observations contained
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hereinabove.
In the aforesaid terms, instant petition
is allowed and the pending miscellaneous application(s),
if any, shall stand disposed of, accordingly.
(Ranjan Sharma)
Judge
October, 28 2024
(himani)