Tarun v. State Of Punjab

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Date of Decision: September 04, 2024 TARUN ....Petitioner(s)

VERSUS

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

Present:

Mr. Ram Kumar 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 483 of B.N.S.S. has been invoked seeking the concession of regular bail for the petitioner in FIR No.21 dated 09.02.2023, under Sections 365, 326 & 34 of IPC and Section 25 of Arms Act, 1959 (Sections 379-B, 367, 506, 201, 148, 149, and 120-B of IPC added later on), registered at Police Station Phase-I, SAS Nagar (Mohali) District SAS Nagar (Mohali).

2.

Prosecution story set up in the present case as per the version in the FIR read as under :- 'Copyof statement, "Statement of Hardeep Singh S/o Darshan Singh R/o House No. 215. Near Gurdwara Sahib Dhoorkof, village Mohali, aged about 24 years, MNo.7717362093. Stated that I am resident of the above said address and I am doing the job of driver. On 08.02.2023 at about2:15 PM, I was sitting near Rana Building, when two clean shaven persons came to me and the person wearing red T-shirt said to me that we have come from CIA Staff. There is a complaint

against you, come with us. They were taking me towards their vehicle and another person of the name of Gauri S/o Dev Raj R/o Bad Majra was also standing ahead and as soon as we near the vehicle Gauri started beating me and by getting me in the vehicle, took me via Dara Studio to the jungle behind the cremation ground of Bad Majra. They were having a data and one sixer arms (Ik Siksar Asla). Gauri with the help of his accomplices started threatening me with weapons and asked, who has killed my brother Bunty, tell us or we will kill you also. Or you hand over Ajay Patil and your friend to us. On my refusal Gauri and person in red T-shirt had caught hold my arms who placed my left hand on the ground and the person in black shirt gave two datar blows on my fingers, due to which all the four fingers got separted.

Then the aforesaid persons ran away in their car by giving me threats and hurling abuses and I somehow reached my home. Maninder Singh son of my uncle got me admitted in Civil Hospital, Phase-6, Mohali for treatment. My mobile phone has also been taken away by the said persons in which my Sim No 9041406288 is working. After giving First Aid to me at Civil Hospital, Phase-6, Mohali, I was referred to PGI, CHD. I and Maninder Singh son of my uncle had gone for taking the fingers. After getting the fingers I got myself admitted in PGI, CHD., where I am under treatment. The motive is that Bunty brother of Gauri was murdered some time ago, due to which the aforesaid person Gauri along with his accomplices have done by conniving with each other. Kindly take requisite legal action against the aforesaid person and justice be imparted to me.

You have got recorded my statement, heard, under stood and admitted to be correct.'

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 and was not named in the FIR. And merely on the basis of disclosure suffered by co-accused he has been roped in FIR, which otherwise is a weak piece of evidence. He submits that allegations levelled against the petitioner are totally false and baseless as there

is nothing incriminating to be recovered from the present petitioner. The coaccused namely Puneet Singh @ Harry @ Gola has already been granted the concession of regular bail by this Court vide order dated 09.01.2024 passed in CRM-M-64765-2023 (Annexure P-5).

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 05 months 28 days and there are nine other cases pending against the petitioner meaning thereby he is a habitual offender and does not deserve the concession of regular bail. Learned State Counsel on instructions from the Investigating Officer opposes the prayer for grant of regular bail but is not in a position to controvert the submissions made by counsel for the petitioner. He informs the Court that in the present FIR challan stands presented on 24.05.2023 and charges stands framed on 29.01.2024.

4.

Analysis From the above case it can be culled out that the petitioner has already suffered sufficient period in custody i.e. 01 year 05 months 28 days and similarly situated co-accused have already been granted 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 24..05.2023, charges stands framed on 29.01.2024, out of 28 prosecution witnesses, none has been examined so far and one is given up 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 483 BNSS, 2023 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 stand allowed. (SANDEEP MOUDGIL) JUDGE 04.09.2024 Sangeeta Whether reasoned/speaking:

Yes/No Whether reportable:

Yes/No