Legally Bharat

Punjab-Haryana High Court

Shishan vs State Of Haryana on 22 November, 2024

Author: Sandeep Moudgil

Bench: Sandeep Moudgil

                                         Neutral Citation No:=2024:PHHC:154331


CRM-M-57211-2024                                                                 -1-



210
             IN THE HIGH COURT OF PUNJAB AND HARYANA
                          AT CHANDIGARH

                                           CRM-M-57211-2024 (O&M)
                                           DECIDED ON: 22.11.2024

SHISHAN
                                                              .....PETITIONER

                                        VERSUS

STATE OF HARYANA
                                                              .....RESPONDENT

CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL

Present:     Mr. Keshav Pratap Singh, Advocate
             for the petitioner.

             Mr. Jasjit Singh Rattu, DAG Punjab.

             Mr. Tarun Kumar, Advocate for the complainant.

SANDEEP MOUDGIL, J (ORAL)

CRM-45451-2024

Application is allowed, as prayed for.

Annexures P-1 to P-6 are taken on record with just exceptions.

1. Relief Sought

The jurisdiction of this Court under Section 483 BNSS, 2023 has

been invoked for the 2nd time seeking regular bail to the petitioner in FIR No. 89,

dated 13.05.2024, under Sections 216, 307, 387, 506, 34 and 120-B of IPC, 1860

and Section 25 of Arms Act (Sections 216 of IPC and 25 of Arms Act added later

on) registered at Police Station City Safidon, District Jind.

2. Facts

Facts as narrated in the FIR reads as under:-

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“TO , The SHO, Police station, City Safidon. Subject: – Complaint
against unknown people for demanding Extortion and on refusal of
paying extortion, they fired upon my Partner namely Deepak, with
intention to Kill at our shop. 1. That We have Mobile shop namely ”

7VK Communication” at Stadium market and my Shop No are 17 &
18 and in this shop I, Ankur Gupta Son of Ashok Gupta resident of
Safidon presently residing in, Model Town, Virat Nagar Panipat, and
I am partner with Deepak son of Rajender Prasad of Sadfion. 2. That
I have received Whatsapp call Mobile Number 447309801064 on
30.3.2024 for extortion, on my Mobile No 9896244211, and I have
taken this call lightly and no action was taken by me. But on next day
i.e. 1.4.2024, I received the WhatsApp call from same mobile number
and I blocked that number. That again on 3.4.2024, third time, I have
received call from Mobile no. 37256187485, and again they
demanded the extortion and they threatened me to face the dire and
also threatened to kill us and even again we had this call. 3. That
today i.e. 13.5.2024 around 5.35 PM, Deepak was standing outside
and I was working inside the shop and then, I saw three unknown
people coming on motorcycle with muffled faces and those people
fired towards the Shop and Deepak escaped from the firing. Then
firing, those unknown persons escaped towards new Bus Stand while
waving their pistols in air. I have full Doubt that this attack was done
by same persons who used to give threat from above mentioned
Mobile numbers for Extortion on my mobile phone. That immediately
after the incident I have informed the Police and police also came on
the spot. Thus, it is humbly prayed before you Sir, that strict legal may
kindly be taken against the unknown people and protect our life and
property Sd/- Applicant Ankur Gupta son of Ashok Gupta, resident of
Safidon presently residing in Model Town Virat Nagar, Panipat.”

3. Contentions:

On behalf of the petitioner

Learned counsel for the petitioner submits that the petitioner has been

implicated in the present case on the basis of disclosure statement suffered by co-

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accused. He further submits that the petitioner is suffering from various ailments

and required medical attention. It is contended on behalf of the petitioner that

other co-accused persons have already been granted the concession of bail by the

Court below.

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

on the ground that the petitioner has played an active role in connivance with his

son as calls which were being made for extortion from abroad relates to the mobile

number of the son of the petitioner.

At the outset, learned counsel appearing for the complainant submits

that the petitioner has not played any active role in the commissioning of the

offence, which derails the whole story of the prosecution itself at this stage.

4. Analysis
Considering the custody period already suffered by the petitioner i.e.,

6 months and 6 days and not involved in any other case, as is evident from the

perusal of the custody certificate and the stand of the complainant with regard to

the role of the petitioner, this Court is of the firm view that there is strong

probability of acquittal of petitioner on conclusion of the trial added with the fact

that investigation is complete, challan stands presented on 15.07.2024, charges has

not yet been framed and out of total 16 prosecution witnesses none has been

examined so far, meaning thereby conclusion of trial shall take considerable time,

no useful purpose would be served by keeping the petitioner behind the bars for an

indefinite period, which would curtail right of the petitioner for speedy trial and

expeditious disposal, as enshrined under Article 21 of the Constitution of India as

has been time and again discussed by this Court, while relying upon the judgment

of the Apex Court passed in Dataram Singh vs. State of Uttar Pradesh & Anr.

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2018(2) R.C.R. (Criminal) 131. 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 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

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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 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

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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 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.

5. DECISION:

In view of the discussions made hereinabove, the petitioner is hereby

directed to be released on regular bail on 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.

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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)
22.11.2024                                          JUDGE
Meenu




Whether speaking/reasoned       Yes/No
Whether reportable              Yes/No




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