Punjab-Haryana High Court
Atul vs State Of Haryana on 30 August, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2024:PHHC:112476
CRM-M-40895-2024 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
208 CRM-M-40895-2024
DATE OF DECISION: 30.08.2024
ATUL ...PETITIONER
Versus
STATE OF HARYANA ... RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Saleem Ahmed, Advocate for the petitioner(s).
Mr. B.S.Virk, Sr. DAG, Haryana.
***
SANDEEP MOUDGIL, J (ORAL)
1. Relief Sought
The jurisdiction of this Court has been invoked under
Section 483 of The Bharatiya Nagarik Suraksha Sanhita, 2023 for grant
of regular bail to the petitioner in FIR No.93, dated 23.03.2022, under
Sections 148, 149, 302, 307, 427, 452, 506, 120-B IPC and Sections 25
& 27 of Arms Act (later on Section 212/201 IPC added later on)
registered at Police Station Sadar Palwal.
2. Prosecution story setup in the present case as per the version in
the FIR as under:-
“TO, Incharge Police Post Dighaut, District Palwal. Sir, it is
reguested that I am Akash son of Rajesh, resident of Dighaut,
District Palwal, we are two brothers, Yashbir is my elder
brother, of our family members Surender son of Rajender,
Govind son of Gangacharan, Yogesh alias Tinku son of Gugal,
resident of Dighot and Anand, resident of Dakora, who seems to
be Surender’s brother-in-law and has been fighting with him for1 of 10
::: Downloaded on – 01-09-2024 04:52:06 :::
Neutral Citation No:=2024:PHHC:112476CRM-M-40895-2024 2
many yeaIs: Those who Surender etc. were holding a grudge
against us regarding this. matter, who had threatened us many
times that if we got a chance, we would destroy your family,
keeping the grudge on this matter, Surender, Govind, Anand,
Tinku conspired to destroy our family, Tekchand resident of
Khedi, Neeraj. Pandit, resident of Faridpur, District Faridabad,
Jagga resident of Chandhat, he is a villain type of man and is
responsible for many murders and are criminals of robbery and
dacoity and they have made a name for themselves by
committing crimes and together they gave money to destroy our
family and Tekchand etc. took money from Surendra etc. to kill
us. Kailash’s brothers. Pratap and Mahesh, resident Alawalpur
dealer, resident Balai and along with him four unknown persons,
yesterday on 22.03.2022 at around 12:00 noon, when I was
standing at the wall of my uncle Dinesh’s Nohra, that Kailash,
Pratap, Mahesh, resident of Alawalpur, dealer resident of Balei
and the names of four others, I don’t know, came to our house in
Nohra, my brother Yashbir and sonu son of Satbir, resident of
Dighot, Sarfaraz son of Farcog resident of Dhinki, Hathin
Engineer, Jaiveer son of Karan Singh R/o Korali who was the
contractor because we were constructing a new house at Nohra
had come to see him were Kailash, Pratap. Mahesh, the dealer
and along with him four unknown names, all of whom had
pistols in their hands and started firing from outside also. I
immediately moved from the wall to the roof and everyone came
from front to back firing bullets and hearing the sound of the
bullet, Yashbir closed the door from the other side, they. all
broke the door and started firing indiscriminately at my brothers
Yashbir, Sonu, Sarfaraz and Jaiveer sitting inside. After firing
for a long time, they started saying that i£ any one of you
survives today, they will kill you, when Kailash etc. started firing
indiscriminately again, my brother Yashbir got hit by several
bullets and Sarfaraz and Tasveer were also shot, my mother
Gayatri Devi also came to the spot after hearing the sound of2 of 10
::: Downloaded on – 01-09-2024 04:52:07 :::
Neutral Citation No:=2024:PHHC:112476CRM-M-40895-2024 3
bullets, Kailash and others also fired bullets at my mother, she
also narrowly escaped, after their departure Vikas son laggar,
Kishan’s son Dayaram also came at the right time and with their
help, I put Yashbis, Sarfaraz, Jaiveer in my car and first referred
Yashbir to Apex Hospital, Palwal, Doctor Saheb referred
Yashbir to Sarvodaya Hospital, Faridabad. Leaving Sarfaraz
and Jaiveer for treatment, we Drought Yashbir to the hospital
from Sarvodaya Hospital. My brother Yashbir died during
treatment, he died after being shot by Kailash, Pratap, Mahesh
etc. who has killed my brother Yashbir by paying money to
Tekchand, Neeraj, Jagga and hatching a conspiracy by
Surender, Gobind, Anand, Tinku, Kailash, Pratap, Mahesh,
dealer and 4 unknown persons. Legal action be taken against
them, this entire incident is recorded in our CCTV camera
installed in Nohra. Sd/- Akash son of Rajesh, resident of Village
Dighaut, District Palwal 8053491830. Police Proceedings: –
Today information was received through telephone that Yashbir
son of Rajesh, resident of village Dighot is admitted in
Sarvodaya Hospital Sector 8 Faridabad due to bullet injury,
after receiving the information myself SI along with SPO
Joginder No. 242, reached Police Station sector 8 Faridabad,
from where after getting slip from the Doctor, Leached
Sarvodaya Hospital Sector 8 Faridabad, from where MLR
No.2F200320221300, in which the Doctor has recorded 7
injuries. After obtaining MR, SI obtained a written. opinion
about injured Yashbir from Doctor, in which Doctor has
mentioned that the injured was not capable of giving a
statement, after waiting there for a long time, Akash son of
Rajesh, resident of village Dighot, district Palwal together
presented an application. Keeping in view of the contents. of the
application submitted by injured and MIR, offence under Section
148, 149, 302, 307, 427, 452, 306, 120 -B, of IPC and under
Sections 25, 54 and 59 of Arms Act have been found made out.
That statement is being send to the police station through SPO
3 of 10
::: Downloaded on – 01-09-2024 04:52:07 :::
Neutral Citation No:=2024:PHHC:112476
CRM-M-40895-2024 4
Joginder No. 242 for registration of FIR, after registration of
case number of the same may be informed, in the case special
reports may be prepared and sent for the kind perusal of senior
officers, that myself I am busying in Sarvodya Hospital
Faridabad, permission may be granted for investigation. Today
at Sarvidya Hospital Faridabad I/C Police Post Dighaut Police
Station Sadar Palwal Dated 23.03.2022. Today at Police
Station:- Upon receipt. of above, mentioned statement case
Number No. 93, dated 23. 03.2023, under Sections 148, 1.49,
302, 307, 427, 452, 506, 120-B Of IPC and under Sections 25,
54 and 59 of Arms Act was registered at Police Station Sadar
Palwal. Copies of FIR were prepared in CCTNS COMPUTER,
Special reports are being sent through special messenger C.
Ankit NO. 527/Palwal for the kind perusal of Ilaga Magistrate
and senior officers. Copy of Police file along with criginal
statement is being sent through arrived SPO to responsible I0 at
the spot. Note: – This case has been registered in the presence of
ASI Ashok Kumar. That since ID Of ASI Ashok Kumar is not
available in CCINS COMPUTER So same has ben registered in
the I.D. of HC SUKHBIR SINGH. IOn the present case is ASI
Ashok Kumar. Due to technical fault in CCINS, this case has
been registered with delay.”
3. Contention
On behalf of the petitioner
Learned counsel for the petitioner contends that the
petitioner has been falsely implicated in this case and was arrested on
the disclosure statement of co-accused. As per the alleged allegations,
the petitioner was present in the meeting of planning of conspiracy but
the petitioner was not named in the FIR. He submits that no recovery
has been effected from the petitioner and co-accused namely Rajender
@ Singh Sahib, Imran Malik, Yogender, Ankit, Rahul, Noruik @ Bhola
4 of 10
::: Downloaded on – 01-09-2024 04:52:07 :::
Neutral Citation No:=2024:PHHC:112476
CRM-M-40895-2024 5
and Rajat have already been granted concession of regular bail in
CRM-M-24873 of 2024 on 29.05.2024, CRM-M-26845 of 2024 on
31.05.2024, CRM-M-27067 of 2024 on 31.05.2024, CRM-M-28401 of
2024 on 03.07.2024, CRM-M-28521-2024 on 03.07.2024, CRM-M-
32536 of 2024 on 17.07.2024, CRM-M-34951-2024 on 31.07.2024
respectively. He points out that no overt act has been attributed to the
petitioner and all the material witnesses including the complainant
have turned hostile. It has been submitted on behalf of the petitioner
that he is in custody for more than 6 months and no weapon has been
recovered from the present petitioner.
On behalf of the State
On the other hand, learned State counsel has produced the
custody certificate of the petitioner today in Court, which is taken on
record. He seeks dismissal of the instant petition on the ground that the
petitioner is a habitual offender as he is involved in other FIRs also but
is not in a position to dispute the fact that the co-accused persons have
been granted the concession of bail by this Court.
4. Analysis
Be that as it may, considering the custody period i.e. 06
months and 13 days for which the petitioner has suffered incarceration;
co-accused persons have already been granted concession of regular
bail by this Court; the petitioner was not initially named in the FIR but
was subsequently roped in only on the basis of disclosure statement of
co-accused person; no overt act has been attributed to the petitioner;
material witnesses have turned hostile added with the fact that challan
stands presented before the trial Court on 20.04.2024, charges stand
5 of 10
::: Downloaded on – 01-09-2024 04:52:07 :::
Neutral Citation No:=2024:PHHC:112476
CRM-M-40895-2024 6
framed on 05.09.2024 and out of total 58 prosecution witnesses, only
10 have been examined so far, which is suffice enough for this Court to
infer that the conclusion of trial will take a long time for which the
petitioner cannot be detained behind the bars for an indefinite period.
Reliance can be placed upon the judgment of the Apex
Court rendered in “Dataram versus State of Uttar Pradesh and
another”, 2018(2) R.C.R. (Criminal) 131, wherein it has been held
that the grant of bail is a general rule and putting persons in jail or in
prison or in correction home is an exception. Relevant paras of the said
judgment is reproduced as under:-
“2. A fundamental postulate of criminal jurisprudence is the
presumption of innocence, meaning thereby that a person is
believed to be innocent until found guilty. However, there are
instances in our criminal law where a reverse onus has been
placed on an accused with regard to some specific offences but
that is another matter and does not detract from the fundamental
postulate in respect of other offences. Yet another important
facet of our criminal jurisprudence is that the grant of bail is the
general rule and putting a person in jail or in a prison or in a
correction home (whichever expression one may wish to use) is
an exception. Unfortunately, some of these basic principles
appear to have been lost sight of with the result that more and
more persons are being incarcerated and for longer periods.
This does not do any good to our criminal jurisprudence or to
our society.
3. There is no doubt that the grant or denial of bail is entirely
the discretion of the judge considering a case but even so, the
exercise of judicial discretion has been circumscribed by a large
number of decisions rendered by this Court and by every High
Court in the country. Yet, occasionally there is a necessity to6 of 10
::: Downloaded on – 01-09-2024 04:52:07 :::
Neutral Citation No:=2024:PHHC:112476CRM-M-40895-2024 7
introspect whether denying bail to an accused person is the right
thing to do on the facts and in the circumstances of a case.
4. While so introspecting, among the factors that need to be
considered is whether the accused was arrested during
investigations when that person perhaps has the best
opportunity to tamper with the evidence or influence witnesses.
If the 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 the accused was participating in the investigations to
the satisfaction of the investigating officer and was not
absconding or not appearing when required by the investigating
officer. Surely, if an accused is not hiding from the 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 the
judge to consider whether the accused is a first-time offender or
has been accused of other offences and if so, the nature of such
offences and his or her general conduct. The poverty or the
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 the Code of
Criminal Procedure, 1973. An equally soft approach to
incarceration has been taken by Parliament by inserting section
436A in the Code of Criminal Procedure, 1973.
5. 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 the dignity of an accused person, howsoever poor
that person might be, the requirements of Article 21 of the
Constitution and the fact that there is enormous overcrowding in
prisons, leading to social and other problems as noticed by this7 of 10
::: Downloaded on – 01-09-2024 04:52:07 :::
Neutral Citation No:=2024:PHHC:112476CRM-M-40895-2024 8
Court in In Re-Inhuman Conditions in 1382 Prisons, 2017(4)
RCR (Criminal) 416: 2017(5) Recent Apex Judgments (R.A.J.)
408 : (2017) 10 SCC 658
6. The historical background of the provision for bail has been
elaborately and lucidly explained in a recent decision delivered
in Nikesh Tara chand Shah v. Union of India, 2017 (13) SCALE
609 going back to the days of the Magna Carta. In that decision,
reference was made to Gurbaksh Singh Sibbia v. State of Punjab,
(1980) 2 SCC 565 in which it is observed that it was held way
back in Nagendra v. King-Emperor, AIR 1924 Calcutta 476 that
bail is not to be withheld as a punishment. Reference was also
made to Emperor v. Hutchinson, AIR 1931 Allahabad 356
wherein it was observed that grant of bail is the rule and refusal
is the exception. The provision for bail is therefore age-old and
the liberal interpretation to the provision for bail is almost a
century old, going back to colonial days.
7. However, we should not be understood to mean that bail
should be granted in every case. The grant or refusal of bail is
entirely within the discretion of the judge hearing the matter and
though that discretion is unfettered, it must be exercised
judiciously and in a humane manner and compassionately. Also,
conditions for the grant of bail ought not to be so strict as to be
incapable of compliance, thereby making the grant of bail
illusory.”
Therefore, to elucidate further, this Court is conscious of
the basic and fundamental principle of law that right to speedy trial is a
part of reasonable, fair and just procedure guaranteed under Article 21
of the Constitution of India. This constitutional right cannot be denied
to the accused as is the mandate of the Apex court in “Hussainara
Khatoon and ors (IV) v. Home Secretary, State of Bihar, Patna”,
(1980) 1 SCC 98. Besides this, reference can be drawn upon that pre-
conviction period of the under-trials should be as short as possible
8 of 10
::: Downloaded on – 01-09-2024 04:52:07 :::
Neutral Citation No:=2024:PHHC:112476
CRM-M-40895-2024 9
keeping in view the nature of accusation and the severity of
punishment in case of conviction and the nature of supporting
evidence, reasonable apprehension of tampering with the witness or
apprehension of threat to the complainant.
As far as the pendency of other cases and involvement of
the petitioner in other cases is concerned, reliance can be placed upon
the order of this Court rendered in CRM-M-25914-2022 titled as
“Baljinder Singh alias Rock vs. State of Punjab” decided on
02.03.2023, wherein, while referring Article 21 of the Constitution of
India, this Court has held that no doubt, at the time of granting bail, the
criminal antecedents of the petitioner are to be looked into but at the
same time it is equally true that the appreciation of evidence during the
course of trial has to be looked into with reference to the evidence in
that case alone and not with respect to the evidence in the other
pending cases. In such eventuality, strict adherence to the rule of denial
of bail on account of pendency of other cases/convictions in all
probability would land the petitioner in a situation of denial of
concession of bail.
5. DECISION:
In view of the discussions made hereinabove, the
petitioner is directed to be released on regular bail on his furnishing
bail and surety bonds to the satisfaction of the trial Court/Duty
Magistrate, concerned.
In the afore-said terms, the present petition is hereby
allowed.
9 of 10
::: Downloaded on – 01-09-2024 04:52:07 :::
Neutral Citation No:=2024:PHHC:112476CRM-M-40895-2024 10
However, it is made clear that anything stated hereinabove
shall not be construed as an expression of opinion on the merits of the
case.
(SANDEEP MOUDGIL)
JUDGE
30.08.2024
anuradha
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
10 of 10
::: Downloaded on – 01-09-2024 04:52:07 :::