Kali Deen v. State Of Punjab

-1IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : 12.01.2023 Kali Deen ......... Petitioner

Versus

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

Mr.Vipan Kumar, Advocate for Mr. Ravi Malhotra, Advocate for the petitioner.

Mr. Amish Sharma, Asstt. A.G., Punjab.

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

The petitioner, through instant petition under Section 439 Cr.P.C., is seeking regular bail in FIR No. 19 dated 05.03.2022 under Section 306 of the Indian Penal Code, 1860, registered at Police Station Daba, District Ludhiana.

2.

Learned counsel for the petitioner inter alia, contends that the petitioner is in custody since 07.03.2022. The complainant primarily made allegations against the mother of the petitioner who was granted anticipatory bail by this Court. The complainant, wife of the complainant and son of the complainant have already been examined and prosecution has declared them hostile. The challan has already been presented and charges stand framed. The petitioner has been wrongly implicated in the commission of alleged offence. The petitioner is not involved in any other FIR. The petitioner is permanent resident of District Ludhiana and staying with family members. ANJU GOEL 2023.01.13 16:51 I attest to the accuracy and integrity of this document

-2The petitioner has deep roots in the society. There is no possibility of flee from justice.

3.

Custody certificate dated 11.01.2023 is taken on record. Registry is directed to tag the same at appropriate place. 4.

Learned State Counsel on instructions from ASI Chamkaur Singh submits that police report has already been filed and charges stand framed. There are total 10 witnesses and 03 material witnesses have already 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

-3impression 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;

ii) 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 07.03.2022; ii) Police report under section 173 of Cr.P.C. stands filed and charges stand framed;

iii) The complainant, wife of complainant and son of complainant have already been examined and they have not supported the case of prosecution;

-4iv) There are total 10 witnesses and till date 03 material witnesses have been examined;

v) As prosecution has right to arrest, investigate the matter and restrain an accused from manipulating or winning over witnesses, similarly accused in view of Article 21 of the Constitution of India has right to defend himself and put forth his stand which cannot be possible while in custody; vi) 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 Ludhiana and having 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.

( JAGMOHAN BANSAL ) JUDGE 12.01.2023 anju Whether speaking/reasoned Yes/No Whether Reportable Yes/No