Punjab-Haryana High Court
Mohit Gill vs State Of Punjab on 5 September, 2024
Neutral Citation No:=2024:PHHC:116521
CRM-M-36822-2024
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IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
227
CRM-M-36822-2024
Date of decision: 05.09.2024
MOHIT GILL ....Petitioner
Versus
STATE OF PUNJAB ...Respondent
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present : Mr. K.S.Sidhu, Advocate
for the petitioner.
Mr. Sahil R. Bakshi, AAG, Punjab.
KULDEEP TIWARI. J.(Oral)
1. Through the instant petition, the petitioner craves for indulgence of
this Court for his being enlarged on regular bail, in case FIR No.112 dated
02.05.2021, under Sections 307, 452, 148 and 149 of IPC, and under Sections
25/27/54/59 of Arms Act, registered at Police Station City Ferozepur, District
Ferozepur.
ALLEGATIONS AGAINST THE PETITIONER
2. The instant FIR has been registered on the complaint made by one
Adarsh Sharma, son of Raman Kumar Sharma, that the petitioner along with other
co-accused on 01.05.2021, at about 9:30 PM, armed with pistols, forcibly entered the
complainant’s house, and started firing shots with an intention to kill the
complainant. The complainant suffered four gunshot injuries, one hit the left thigh,
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one shot hit above scrotum, and one shot hit on the back of his right thigh.
Thereafter, the petitioner, along with other co-accused after inflicting injuries to the
complainant, fled away from the spot.
SUBMISSIONS OF LEARNED COUNSEL FOR THE PETITIONER
3. The learned counsel for the petitioner, in his asking for the hereinabove
extracted relief, has made the following submissions:-
(i) The co-accused i.e. Michal @ Kali @ Michael Bhandari has
already been granted the relief of regular bail in CRM-M-22825-
2023, vide order dated 07.12.2023, by this Court;
(ii) Petitioner has suffered incarceration of more than 01 year, and
03 months, as of today;
(iii) There is an affidavit (Annexure P-3) sworn by the
complainant/injured, regarding compromise of the instant matter;
(iv) The final report under Section 173 Cr.P.C., had already been
filed on 10.08.2023, but the charges are yet to be framed;
(v) Out of the total 20 prosecution witnesses cited in the final
report, none has been examined till date.
SUBMISSIONS OF THE LEARNED STATE COUNSEL
4. Per contra, the learned State counsel, who is in receipt of advance
notice, has placed on record the custody certificate qua the petitioner, as issued by
the Additional Superintendent of Central Jail, Ferozepur. The same is taken on
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record. A perusal of the custody certificate reveals that the petitioner has suffered
incarceration of 01 year, 03 months and 19 days, as on today. Learned State counsel
on instructions, imparted to him by the official respondent, submits that after
conclusion of the investigation, the final report under Section 173 Cr.P.C., had
already been filed on 10.08.2023, but the charges are yet to be framed. Learned
State counsel further submits that out of the total 20 prosecution witnesses cited in
the final report, none has been examined till date.
ANALYSIS
5. Before embarking upon the process of evaluating the arguments
addressed by the learned counsels for the parties and penning down any opinion
upon the instant petition, it is deemed imperative to capture an overview of some
significant legal propositions.
6. “Bail is the Rule and Jail is an Exception”. This basic principle of
criminal jurisprudence was laid down by the Hon’ble Supreme Court, way back in
1978, in its landmark judgment titled “State of Rajasthan V. Balchand alias
Baliay”, 1977 AIR 2447, 1978 SCR (1) 535. This principle finds its roots in one
of the most distinguished fundamental rights, as enshrined in Article 21 of the
Constitution of India. Though the underlying objective behind detention of a
person is to ensure easy availability of an accused for trial, without any
inconvenience, however, in case the presence of an accused can be secured
otherwise, then detention is not compulsory.
7. The right to a speedy trial is one of the rights of a detained person.
However, while deciding application for regular bail, the Courts shall also take
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into consideration the fundamental precept of criminal jurisprudence, which is
“the presumption of innocence”, besides the gravity of offence(s) involved.
8. In “Gurbaksh Singh Sibbia v. State of Punjab”, (1980) 2 SCC 565
at 586-588, the purpose of granting bail is set out by the Hon’ble Supreme Court
with great felicity as follows:-
“27. It is not necessary to refer to decisions which deal with the
right to ordinary bail because that right does not furnish an exact
parallel to the right to anticipatory bail. It is, however, interesting
that as long back as in 1924 it was held by the High Court of
Calcutta in Nagendra v. King Emperor, AIR 1924 Calcutta 476
(479, 480) that the object of bail is to secure the attendance of the
accused at the trial, that the proper test to be applied in the solution
of the question whether bail should be granted or refused is whether
it is probable that the party will appear to take his trial and that it is
indisputable that bail is not to be withheld as a punishment. In two
other cases which, significantly, are the ‘Meerut Conspiracy cases
observations are to be found regarding the right to bail which
deserve a special mention. In K.N. Joglekar v. Emperor, AIR 1931
Allahabad 504 (SB) it was observed, while dealing with Section 498
which corresponds to the present Section 439 of the Code, that it
conferred upon the Sessions Judge or the High Court wide powers
to grant bail which were not handicapped by the restrictions in the
preceding Section 497 which corresponds to the present Section
437. It was observed by the Court that there was no hard and fast
rule and no inflexible principle governing the exercise of the
discretion conferred by Section 498 and that the only principle
which was established was that the discretion should be exercised
judiciously. In Emperor v. H.L. Hutchinson, AIR 1931 Allahabad
356 at p. 358 it was said that it was very unwise to make an attempt
to lay down any particular rules which bind the High Court, having
regard to the fact that the legislature itself left the discretion of the
Court unfettered. According to the High Court, the variety of cases
that may arise from time to time cannot be safely classified and it is4 of 9
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dangerous to make an attempt to classify the cases and to say that in
particular classes a bail may be granted but not in other classes. It
was observed that the principle to be deduced from the various
sections in the Criminal Procedure Code was that grant of bail is
the rule and refusal is the exception. An accused person who enjoys
freedom is in a much better position to look after his case and to
properly defend himself than if he were in custody. As a presumably
innocent person he is therefore entitled to freedom and every
opportunity to look after his own case. A presumably innocent
person must have his freedom to enable him to establish his
innocence.
XX XX XX
29. In Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118 it
was observed by Goswami, J., who spoke for the Court, that “there
cannot be an inexorable formula in the matter of granting bail. The
facts and circumstances of each case will govern the exercise of
judicial discretion in granting or cancelling bail”.
30. In American Jurisprudence (2d, Vol. 8, page 806, para 39) it is
stated :
“Where the granting of bail lies within the discretion of the
court, the granting or denial is regulated, to a large extent,
by the facts and circumstances of each particular case. Since
the object of the detention or imprisonment of the accused is
to secure his appearance and submission to the jurisdiction
and the judgment of the court, the primary inquiry is whether
a recognizance or bond would effect that end.”
It is thus clear that the question whether to grant bail or not
depends for its answer upon a variety of circumstances, the
cumulative effect of which must enter into the judicial verdict. Any
one single circumstance cannot be treated as of universal validity or
as necessarily justifying the grant or refusal of bail.”
9. Also, in “Gudikanti Narasimhulu and others Versus Public
Prosecutor, High Court of Andhra Pradesh”, 1978 AIR (Supreme Court) 429,
the Hon’ble Supreme Court, speaking through Krishna Iyer, J., has enunciated the
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principles of bail thus :
“9. Thus the legal principle and practice validate the court
considering the likelihood of the applicant interfering with witnesses
for the prosecution or otherwise polluting the process of justice. It is
not only traditional but rational, in this context, to enquire into the
antecedents of a man who is applying for bail to find whether he has
a bad record-particularly a record which suggests that he is likely
to commit serious offences while on bail. In regard to habitual, it is
part of criminological history that a thoughtless bail order has
enabled the bailee to exploit the opportunity to inflict further crimes
on the member of society. Bail discretion, on the basis of evidence
about the criminal record of a defendant, is therefore not an
exercise in irrelevance.
10. The significance and sweep of Article 21 make the deprivation of
liberty a matter of grave concern and permissible only when the law
authorising it is reasonable, even-handed and geared to he goals of
community good and State necessity spelt out in Article 19. Indeed,
the considerations I have set out as criteria are germane to the
constitutional proposition I have deduced. Reasonableness
postulates intelligent care and predicates that deprivation of
freedom by refusal of bail is not for punitive purpose but for the bi-
focal interests of justice – to the individual involved and society
affected.
11. We must weight the contrary factors to answer the test the
reasonableness, subject to the need for securing the presence of the
bail applicant. It makes sense to assume that a man on bail has a
better chance to prepare of present his case than one remanded in
custody. And if public justice is to be promoted. mechanical
detention should be demoted. In the United States, which has a
constitutional perspective close to ours, the function of bail is
limited, ‘community roots’ of the applicant are stressed and, after
the Vera Foundation’s Manhattan Bail Project, monetary suretyship
is losing ground. The considerable public expense in keeping in
custody where no danger of disappearance or disturbance can arise,
is not a negligible consideration. Equally important is the
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deplorable condition, verging on the inhuman, of our sub-jails, that
the unrewarding cruelty and expensive custody of avoidable
incarceration makes refusal of bail unreasonable and a policy
favouring release justly sensible.
12. A few other weighty factors deserve reference. All deprivation of
liberty is validated by social defence and individual correction
along an anti-criminal direction. Public justice is central to the
whole scheme of bail law. Fleeing justice must be forbidden but
punitive harshness should be minimised. Restorative devices to
redeem the man, even through community service, meditative drill,
study classes or other resources should be innovated, and playing
foul with public peace by tampering with evidence, intimidating
witnesses or committing offences while on judicially sanctioned ‘free
enterprise’, should be provided against. No seeker of justice shall
play confidence tricks on the court or community. Thus, conditions
may be hung around bail orders, not to cripple but to protect. Such
is the holistic jurisdiction and humanistic orientation invoked by the
judicial discretion correlated to the values of our Constitution.
13. Viewed from this perspective, we gain a better insight into the
rules of the game. When a person, charged with a grave offence,
has been acquitted at a stage, has the intermediate acquittal
pertinence to a bail plea when the appeal before this Court pends?
Yes, it has. The panic which might prompt the accused to jump
the gauntlet of justice is less, having enjoyed the confidence of
the court’s verdit once. Concurrent holdings of guilt have the
opposite effect. Again, the ground for denial of provisional
release becomes weaker when the fact stares us in the face that a
fair finding if that be so – of innocence has been recorded by one
court. It may not be conclusive, for the judgment of acquittal may
be ex facie wrong, the likelihood of desperate reprisal, if
enlarged, may be a deterrent and his own safety may be more in
prison than in the vengeful village where feuds have provoked the
violent offence. It depends. Antecedents of the man and socio-
geographical circumstances have a bearing only from this angle.
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Police exaggerations of prospective misconduct of the accused, if
enlarged, must be soberly sized up lest danger of excesses and
injustice creep subtly into the discretionary curial technique. Bad
record and policy prediction of criminal prospects to invalidate
the bail plea are admissible in principle but shall not stampede the
court into a complacent refusal.”
10. This Court has examined the instant petition on the touchstone of the
hereinabove extracted settled legal principle(s) of law and is of the considered
opinion that the instant petition is amenable for being allowed.
11. The reason for forming the above inference emanates from the factum
that:- (i) as per custody certificate (supra), the petitioner has suffered incarceration of
01 year, 03 months and 19 days, as on today; (ii) The final report under Section 173
Cr.P.C., had already been filed on 10.08.2023, but the charges are yet to be framed;
(iii) The petitioner is on co-pedestal as that of his co-accused i.e. Michal @ Kali @
Michael Bhandari, who has already been granted the relief of regular bail in CRM-
M-22825-2023, vide order dated 07.12.2023, passed by this Court (iv) No fruitful
purpose would be served by keeping the petitioner behind the bars;(v) Trial is not
likely to conclude anytime soon.
FINAL ORDER
12. Taking into consideration the compromise/affidavit sworn by the
complainant/victim, days of incarceration and stage of trial, this Court deems it
appropriate to grant the concession of regular bail to the petitioner. Therefore,
without commenting upon the merits and circumstances of the present case, the
present petition is allowed. The petitioner is ordered to be released on bail on
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furnishing of bail bond and surety bond to the satisfaction of concerned Chief
Judicial Magistrate/trial Court/Duty Magistrate.
13. However, anything observed here-in-above shall have no effect on
the merits of the trial and is meant for deciding the present petition only.
14. However, it is clarified that if in future, the petitioner is found
indulging in commission of similar offences, as are involved herein, the
respondent-State shall be at liberty to make an appropriate application seeking
cancellation of regular bail, as granted by this Court.
(KULDEEP TIWARI)
05.09.2024 JUDGE
amandeep
Whether speaking/reasoned. : Yes/No
Whether Reportable. : Yes/No
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