Jarif v. State Of Haryana
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH Date of Decision: September 23, 2024 JARIF ....Petitioner(s)
VERSUS
STATE OF HARYANA ....Respondent(s) CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present:
Mr. Aman Pal, Advocate for the petitioner.
Mr. B.S. Virk, Senior DAG, Haryana.
**** SANDEEP MOUDGIL , J.(ORAL) 1.
Relief Sought The jurisdiction of this Court under Section 483 of Bhartiya Nagrik Suraksha Sanhita, 2023 has been invoked seeking the concession of grant of regular bail for the petitioner in FIR No.844 dated 27.12.2023, under Sections 392, 397, 412, 120-B of IPC and Section 25(1-B)(A) of Arms Act, 1959, as registered at Police Station Chandani Bagh, Panipat. 2.
Prosecution story set up in the present case as per the version narrated in the instant FIR reads as under :- 'Copy of application is as under: to, SHO Sahab, PS Chandnibagh, Panipat. Respected sir. my submission is that I, Anmol Gaba, s/o Rakesh Kumar Gaba, house no. 1682, Sector 12, Panipat. I
have a plastic granule manufacturing factory at sector 25, Shri Ram Marg. Yesterday on 26.12.2023, I had gone from my factory to my house at HUDA, Sector 12, at about 8.00 PM. In my absence, 4-5 men of my factory labor were working under the supervision of my contractor Gulshan son of Satbir Singh, resident of village Andawar, police station Danahar, district Mainpuri, UP. Some laborers were sleeping. At about 4.00 AM, I got a call from my factory contractor Gulshan on my mobile number 9034700069 that tonight between 3.00 AM to 3.30 AM, 3 to 4 boys entered the factory, showed us their PISTOL and took 13-14 plastic grain bags. They snatched by putting the bags in their Baleno car. On receiving this information, I came to my factory and talked to all the workers who told me the above fact that 3-4 boys had come to our factory in a BALENO CAR and they looted plastic grains from the factory at pistol point. Now I have come to you. Please take action against the persons came in the unknown BALENO CAR and get our goods. The above mentioned boys have assaulted my workers.' 3.
Contentions On behalf of the petitioner The Ld. counsel for the petitioner has argued that the petitioner has been falsely implicated in the present case and has only been nominated as an accused on the basis of the disclosure statement of the co-accused, otherwise he was not even named in the instant FIR. The Ld. counsel for the petitioner also submits that the petitioner has been in custody since 10.01.2024. And, he further submits that the co-accused namely Mukar Singh has already been granted the concession of regular bail by this Court vide order dated 04.09.2024.
On behalf of the State On the other hand, the Ld. 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 the same, the petitioner is behind bars for almost 08 months 10 days. The Ld. State Counsel on instructions from the Investigating Officer opposes the prayer for grant of regular bail, but he is not in a position to controvert the submissions as made on behalf of the petitioner. He informs the Court that in the present FIR, challan stands presented on 06.03.2024 and charges stand framed on 07.06.2024. He further submits that the petitioner is involved in four other FIRs, meaning thereby he is a habitual offender and does not deserve the concession of grant of bail.
4.
Analysis From the above case it can be culled out that the petitioner has been nominated as an accused only on the basis of the disclosure statement of the co-accused, otherwise he was not even named in the instant FIR and the co-accused namely Mukar Singh has already been granted the concession of regular bail by this Court. Also the petitioner has already suffered sufficient period in custody i.e. 08 months 10 days and as per the principle of the criminal jurisprudence, no one shall be considered guilty, till the guilt is proved beyond reasonable doubt. Whereas in the instant case, challan stood presented on 06.03.2024, charges having been framed on 07.06.2024 and out of total 15 prosecution witnesses, none has been examined yet, which is sufficient for this Court to infer that conclusion of the trial is likely to take a considerable amount of time and detaining the petitioner further behind bars for an indefinite period would solve no purpose.
Reliance can be placed upon the judgment of the Apex Court as 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 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 of Bhartiya Nagrik Suraksha Sanhita, 2023 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