Sukhchain Singh Alias Mitha v. State Of Punjab

110+210

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH CRM-M-37626-2024 (O&M) Date of Decision: September 23, 2024 SUKHCHAIN SINGH ALIAS MITHA ....Petitioner(s)

VERSUS

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

Present:

Mr. Manoj R. Sharma, Advocate for the petitioner.

Mr. Jaspal Singh Guru, AAG, 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.85 dated 12.09.2023, under Sections 379-B(2), 341, 336, 411, 34 and 201 IPC and Sections 25, 27 of Arms Act registered at Police Station Sekhwan, Police District Batala, District Gurdaspur.

2.

Prosecution story set up in the present case as per the version in the FIR read as under :- 'Statement of Kawaljit Singh S/o Kuldeep Singh Rio House No. 177 Loharka Road, Gali No.9 NRI Colony, Amritsar aged 49 years. M. No. 98884-30028. Stated that I am resident of aforementioned address and is doing work of Fashion Designer at Amritsar. My in-laws are residing in village Talwandi Jangla. My father in law name is Sucha Singh son of Mohan Singh. Today I along with my wife Sarabjit Kaur

aged 40 years went to meet my in-law's family at village Talwandi Jangla on Bullet Motorcycle No. PB-02-DV-4128 colour black. After meeting them at around 07:00 PM 1 along with my wife left for our house and at around 07:20 PM when we reach Qullian on Qadian to Batala road then one motorcycle came from back on which three boys were sitting. Two were clean shaved and one was in turban. They park their motorcycle in front of my motorcycle and stopped us. The boys told us that we should give them motorcycle and when I refused then one Hindu clean shaved person took our pistol and fired three shots in air to make us afraid. They took away my bullet motorcycle colour back No. PB02-DV-4128. I informed police by calling at 100 number and you have come at the spot. Justice be done to us. Statement has been heard and is correct.'

3.

Contentions On behalf of the petitioner Learned counsel for the petitioner contends that the petitioner has been falsely implicated in the present case. He further argues that motorcycle stands recovered from the petitioner but as far as allegation regarding firing of gunshot is concerned the same is not attributed to the petitioner and is qua the co-accused Akashdeep Singh.

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 11 months 11 days. Learned State Counsel on instructions from the Investigating Officer opposes the prayer for grant of concession of regular bail but is not in a position to controvert the submissions made on behalf of the petitioner. He

informs the Court that in the present FIR challan stands presented on 13.12.2023; charges stand framed on 22.04.2024. He further submits that the petitioner is involved in two other FIRs meaning thereby, he is a habitual offender.

4.

Analysis From the above case it can be culled out that the petitioner has already suffered sufficient period in custody i.e. 11 months 11 days, and the petitioner has been implicated in the present case on the basis of suspicion 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 13.12.2023; charges stand framed on 22.04.2024, there are total 12 prosecution witnesses, out of which none has been has been examined, 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.

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.

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 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 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 23.09.2024 Sangeeta Whether reasoned/speaking:

Yes/No Whether reportable:

Yes/No