Mandeep Kumar Alias Mandeep Singh v. State Of Punjab

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Date of Decision: September 11, 2024 MANDEEP KUMAR ALIAS MANDEEP SINGH ....Petitioner(s)

VERSUS

STATE OF PUNJAB ....Respondent(s) CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL

Present:

Mr. M.S. Saini, Advocate for the petitioner.

Mr. J.S. Rattu, DAG, Punjab.

**** SANDEEP MOUDGIL , J.(ORAL) 1.

Relief Sought The jurisdiction of this Court under Section 439 Cr.P.C. has been invoked seeking the concession of regular bail for the petitioner in FIR No.161 dated 12.06.2023, under Section 304 read with Section 34 of IPC registered at Police Station Tanda, District Hoshiarpur.

2.

Prosecution story set up in the present case as per the version in the FIR read as under :- 'Statement of Balwinder Singh s/o Anokh Singh rio Nangal Jamal Police Station Tanda District Hoshiarpur, age about 55 years, M:No.88729-47930, "Stated that I am resident of the above mentioned address and use to do driving at IOC. Jalandhar. My elder brother

Malkeet Singh and sister-in-law/bharjai had been expired. That they have two sons and a daughter, who was being looked after by me and along with our family, we use to live in a house. My elder nephew, Gurpreet Singh s/o Malkeet Singh r/o Nangal Jamal Police Station Tanda, who is aged about 27 years, used to do driving with me as Helper. On dated 11.06.2023, due to having holiday from work, we were at home only. That on dated 11.06.2023 at around 09 30 P.M., after having meal, all of us went to our rooms for sleeping In the room, where my nephew Gurpreet Singh above used to sleep, one door of which opens towards the side of street.

That at around 10:00 PM, in the night, my nephew Gurpreet Singh above told me by coming that me and Mandeep Kunar s/o Tarsem Lal r/o Dhut Khurd Police Station Tanda, both of us are going to the house of Jagtar Singh s/o Khushia Ram and Roshi s/o Jagtar Singh residents of Nangal Jamal, you can sleep. I would sleep by coming to my room from the side of street. Then, all our family got sleep. Then, today, on dated 12.06.2023, it was around 05:30 A.M. in the morning that I went to wake up my nephew Gurpreet Singh above in his room then, I saw that my nephew, was lying dead on his bed, near whose left hand, empty syringe was lying.

That earlier also, Jagtar Singh s/o Khushia Ram, Roshi s/o Jagtar Singh, Geetu d/o Jagtar singh, Shira s/o Jagtar Singh residents of Nangal Jamal Police Station Tanda and Mandeep Kumar s/o Tarsem Lal resident of Dhut Khurd Police Station Tanda, used to take my nephew along with them and used to get him drugs, in regard to which, I had restricted them so many times but they did not mend it. That, even now also, all of them by calling my nephew Gurpreet Singh above to their home, gave him some poisonous substance, by consuming which, he had been died. That necessary legal action may be taken against Jagtar Singh s/o Khushia Ram, Roshi s/o Jagtar Singh, Geetu dio Jagtar singh, Shira s/o Jagtar Singh residents of Nangal Jamal Police Station Tanda and Mandeep Kumar s/o Tarsem Lal resident of Dhut Khurd Police Station Tanda.

Statement has been heard and it is correct SD/- Balwinder Singh verified by Kulwant Singh ASI Chowki Saran, Police Station, Tanda, dated 12.06.

Police Action On dated 12.06.2023, ASI Kulwant Singh 1099/Hoshi., along with ASI Jagjeet Singh 1258, HC Ranjeet Singh 1640 and PHG 25917, in regard to patrolling and checking, were present at Adda Saran. Then, Balwinder Singh s/o Anokh Singh r/o Nangal Police Station Tanda District Hoshiarpur by coming to ASI Kulwant Singh 1099/Hoshi, got recorded his above statement, whom, his statement was got read after writing, by holding his statement correct, he put his signatures in English under his statement, which were verified by ASI Kulwant Singh 1099/Hoshi: From the statement above, committal of offence under Section 304, 34 IPC has been found For registration of FIR, statement is sent to police station through hand P.H.G. Sukhdev Singh 25917.

That after registration of FIR, number of case may be intimated Information may be given to control room and senior officers. Special reports may be issued. I, A.S.I. along with accompanied personnel gets busy into investigation. SD/- Kulwant Singh ASI Chowki Saran, Police Station Tanda Dated 12.06.2023. Today within limits Adda Saran AT 1:00 PM Today at Police Station On receipt of writing above at police station, by registering the above FIR under above offences, original writing with copy of FIR is being sent on the spot through P.H.G. Sukhdev Singh 25917. By issuing special reports, are being sent in the service of the District Magistrate and Officers through hand ASI Manohar Lal 1742. Information be given on control room to officers through wireless. Compliance Rapat No. 30 dated 13.06.2023.'

3.

Contentions On behalf of the petitioner Learned counsel for the petitioner has argued that the petitioner has been falsely implicated in the present case merely on account of the fact that the deceased along with the present petitioner has gone to the house of co-accused namely Jagtar Singh and Roshi a night prior to the morning on which he was found dead. He further argues that the deceased was found lying

dead in his own house and not in the house of the petitioner and, therefore, merely on the basis of circumstantial evidence, the petitioner has been arrayed in the instant FIR, though there is no other incriminating material available against him and co-accused namely Jagtar Singh @ Jagatar Ram has also been granted the concession of regular bail by this Court vide order dated 09.02.2024 passed in CRM-M-6062-2024 (Annexure P-3).

On behalf of the State On the other hand, learned State Counsel appearing on advance notice, accepts notice on behalf of respondent-State and has filed the custody certificate of the petitioner, which is taken on record. According to which, the petitioner is behind bars for almost 01 year 02 months 27 days. Learned State Counsel on instructions from the Investigating Officer opposes the prayer for grant of regular bail and points out that only two witness were produced but not examined and one of the accused who has been granted regular bail had sought exemption and on that account matter was deferred after granting exemption from appearance to that co-accused. He informs the Court that in the present FIR challan stands presented on 20.09.2023; charges have been framed on 13.03.2024 and there are five other cases pending against the accused meaning thereby he is a habitual offender. 4.

Analysis Be that as it may, considering the custody period i.e. 01 year, 02 months and 27 days for which the petitioner has suffered incarceration; co-accused namely Jagtar Singh @ Jagtar Ram has also been granted the concession of regular bail by this Court and as per the principle of the

criminal jurisprudence, no one should be considered guilty, till the guilt is proved beyond reasonable doubt, whereas in the instant case, challan stands presented on 20.09.2023; charges have been framed on 13.03.2024 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 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 ReInhuman 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 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 the 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 "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 the concession of bail.

5.

Decision:

In view of the aforesaid discussions made hereinabove, the petitioner is hereby directed to be released on regular bail under Section 439

Cr.P.C. 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. 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 11.09.2024 Sangeeta Whether reasoned/speaking:

Yes/No Whether reportable:

Yes/No