Punjab-Haryana High Court
Raj Kumar vs State Of Haryana on 13 December, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2024:PHHC:167146
CRM-M-61829-2024 -1-
218
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-61829-2024
DECIDED ON: 13.12.2024
RAJ KUMAR
.....PETITIONER
VERSUS
STATE OF HARYANA
.....RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Bhisham Kumar Majoka, Advocate
for the petitioner.
Mr. Baljinder Singh Virk, Sr. DAG Haryana
SANDEEP MOUDGIL, J (ORAL)
1. Relief Sought
The jurisdiction of this Court has been invoked for the 2nd
time under Section 483 BNSS, 2023 seeking regular bail to the
petitioner in case FIR No.1100 dated 20.12.2021 under Sections 177,
182, 417, 467, 468, 471 and 120-B of IPC, 1860, registered at Police
Station Shivaji Nagar, Gurugram.
2. Prosecution story set up in the present case as per the version
in the FIR reads as under :-
“CIS No. CHI-3326 of 2016 State of Haryana v. Mukesh Kumar
Present: Sh. Kapil Bhatti, APP for State. Accused Mukesh Kumar declared
proclaimed person. Order dated 19.10.2021 Summons issued to PWs HC
Mukesh Kumar, Ct. Rakesh and Dr. Vijinder for examination under Section
299 Cr.P.C. are received back served but they are not present. BW in sum of
Rs. 5,000/- each be issued against them. Bailable warrants issued against1 of 6
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surety Raj Kumar son of Radha Charan R/o H. No. 2057, Nagla Enclave,
Part-2, Sector-22, Faridabad is received back unexecuted. NBW be issued
against him. As per the report received from registering authority,
Faridabad, vehicle bearing registration No. HR-38-7670 is owned by Vijay
Kumar son of Parshlad and the previous owner one Rakesh Arora. Surety Raj
Kumar his not the owner of the vehicle. It is apparent that surety Raj Kumar
fabricated the registration certificate of a vehicle by putting fake registration
number for the purpose of cheating. The act is not only fraudulent but
contemptuous as well as deceitful, Surety Raji Kumar fraudulently and
dishonestly induced the Magistrate to release accused Mukesh on bail which
the court could not have done if it was not so deceived by the surety. Surety
Raj Kumar committed forgery for the purpose of cheating and used as
genuine a forged document. Taking a serious note of the fallacious demeanor
of surety Raj Kumar who dared to make mockery of the judicial process
presuming himself to be clever adroit, legal action against him is
warranted.”
3. Contentions
On behalf of the petitioner
Learned counsel for the petitioner submits that the petitioner
has been falsely implicated in the present case and nothing is to be
recovered from his possession, as investigation is complete, challan stands
presented to the Court on 17.02.2024, charges stands framed on 06.11.2024
and out of total 11 prosecution witnesses, only 1 has been examined so far.
On behalf of the State
Learned State counsel has filed the custody certificate of the
petitioner, which is taken on record. He prays for dismissal of the present
petition stating that the petitioner is involved in other case, meaning
thereby he is a habitual offender.
4. Analysis
Considering the submissions made by the petitioner that the
petitioner has already suffered sufficient incarceration i.e. 10 months and 7
days, and as per the principle of the criminal jurisprudence, no one should
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be considered guilty, till the guilt is proved beyond reasonable doubt,
whereas in the instant case challan stands presented on 17.02.2024, charges
stands framed on 06.11.2024 and out of total 11 prosecution witnesses,
only 1 has been examined so far, which is sufficient for this Court to infer
that the conclusion of trial is likely to take considerable time and detaining
the petitioner behind the bars for an indefinite period would solve no
purpose.
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 to introspect whether
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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 this 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
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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
fundamental principle of law that right to speedy trial is a part of
reasonable, fair and just procedure enshrined 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 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
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“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
lend the petitioner in a situation of denial the concession of bail.
5. Decision:
In view of the aforesaid 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.
However, it is made clear that anything stated hereinabove
shall not be construed as an expression of opinion on the merits of the case.
The petition in the aforesaid terms stands allowed.
(SANDEEP MOUDGIL)
13.12.2024 JUDGE
Meenu
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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