Akash v. State Of Punjab

-1IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 18.01.2023 Akash ......... Petitioner

Versus

State of Punjab ......... Respondent CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL Present :

Mr.S.P.S. Khaira, Advocate for the petitioner.

Mr. Digvijay Nagpal, AAG, Punjab.

Mr. Raj Kumar Karanwal, Advocate for Mr. Mohit Sadana, Advocate for the complainant.

**** JAGMOHAN BANSAL , J. (Oral) 1.

The petitioner, through instant petition under Section 439 Cr.P.C., is seeking regular bail in FIR No. 67 dated 30.04.2021 under Sections 363, 366A of IPC, registered at Police Station City Sangrur, District Sangrur.

2.

Learned counsel for the petitioner inter alia contends that the petitioner is in custody since 21.05.2021. The prosecutrix in her statement under Section 164 Cr.P.C. has specifically stated that she had left her home at her own accord. She has not further made any allegation against the petitioner. The age of the prosecutrix is doubtful. As per medical record, she is between 161⁄2 years to 19 years. The petitioner is not involved in any other offence. The petitioner has been wrongly implicated in the commission of alleged offence. The petitioner is permanent resident of

-2District Sangrur and staying with family members. The petitioner has deep roots in the society. There is no possibility of flee from justice. 3.

Custody certificate dated 17.01.2023 is taken on record. Registry is directed to tag the same at appropriate place. 4.

Learned State Counsel submits that police report has already been filed and charges stand framed. He further submits that out of 11 witnesses, only one has been examined. The petitioner is involved in the commission of grave offence, thus, no leniency is warranted and release of petitioner would hamper the trial.

5.

A two judge Bench of Hon'ble Supreme Court in Satender Kumar Antil v. CBI (2022) 10 SCC 51, with respect to prevailing conditions of undertrial prisoner in India has observed: "6. Jails in India are flooded with undertrial prisoners. The statistics placed before us would indicate that more than 2/3rd of the inmates of the prisons constitute undertrial prisoners. Of this category of prisoners, majority may not even be required to be arrested despite registration of a cognizable offence, being charged with offences punishable for seven years or less. They are not only poor and illiterate but also would include women. Thus, there is a culture of offence being inherited by many of them. As observed by this Court, it certainly exhibits the mindset, a vestige of colonial India, on the part of the investigating agency, notwithstanding the fact arrest is a draconian measure resulting in curtailment of liberty, and thus to be used sparingly. In a democracy, there can never be an impression that it is a police State as both are conceptually opposite to each other."

6.

Intent of arrest and reason of denial of bail is to: i) Secure the appearance of the accused at the time of trial;

-3ii) Allay possibility of repeating of offence & jeopardising own life on account of grim prospect of being convicted;

iii) Avoid possibility of tampering of evidence and security of witnesses who may be pressurised or maltreated.

7.

A person who seeks to be liberated must take judgment and serve sentence in the event of his conviction. The nature of the crime charged, severity of punishment prescribed, prime facie available evidences, history & background of the accused may indicate that any amount of bond and surety is not going to secure presence of accused, at the time of conviction. Detention or arrest not only deprives a person from his fundamental right of personal liberty guaranteed by article 21 but also freedom guaranteed by article 19(1) of our Constitution. 8.

Keeping in mind:

i) The Petitioner is in custody since 21.05.2021; ii) Police report under section 173 of Cr.P.C. stands filed, charges stand framed;

iii) There are 11 prosecution witnesses and till date only 01 has been examined, thus, there is abysmally low possibility of conclusion of trial in near future;

iv) The age of the prosecutrix one of the material factors is disputed which needs to be considered while conclusion of trial;

v) The prosecutrix in her statement under Section 164 Cr.P.C. has not implicated the petitioner;

-4vi) Twin stringent conditions of bail prescribed under special statutes like PMLA, UAPA, NDPS Act, Companies Act are not applicable in the case in hand;

vii) The Petitioner is not involved in any other criminal case; viii) The Petitioner is permanent resident of District Sangrur and staying with family members;

ix) Prosecution has not led any convincing/plausible documentary or oral evidence indicating possibility of Petitioner being flee from justice or tempering the evidences or winning over/threatening the witnesses;

this Court is of the considered opinion that present petition deserves to allowed and accordingly allowed. The petitioner is ordered to be released on bail subject to conditions as may be imposed by trial Court/illaqa/Duty Magistrate concerned.

Nothing observed hereinabove shall be construed as expression of opinion of this Court on merits of the case and trial Court shall proceed without being prejudiced by observations of this Court. ( JAGMOHAN BANSAL ) JUDGE 18.01.2023 anju Whether speaking/reasoned Yes/No Whether Reportable Yes/No