Shbuham Alias Billu v. State Of Haryana And Another

-1IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DECIDED ON: 27.09.2024 SHUBHAM ALIAS BILLU .....PETITIONER

VERSUS

STATE OF HARYANA AND ANOTHER .....RESPONDENTS

CORAM:

HON'BLE MR. JUSTICE SANDEEP MOUDGIL

Present:

Mr. Pankaj Bali, Advocate for the petitioner.

Mr. Chetan Sharma, DAG, Haryana.

SANDEEP MOUDGIL, J (ORAL) 1.

Relief sought The jurisdiction of this Court has been invoked under Section 483 of BNSS, 2023 for grant of regular bail to the petitioner in FIR No.175, dated 04.06.2024, under Sections 323, 324, 452, 506, 326, 201, 34 IPC (Sections 307, 148, 149 IPC has been deleted during investigation) and Section 25 of Arms Act, registered at Police Station Kanjpura, District Karnal.

2.

Prosecution story setup in the present case as per the version in the FIR as under:- "To the S.H.O. Sahab, Police Station, Kunjpura, Karnal. Subject:- Regarding committing deadly attack by coming at our godown. Sir, It is respectfully submitted that I, Gian Chand son of Sh. Piare Lal, am resident of House No. 308, Model Town, Karnal. My godown is situated in

-2Newal and I do contractor work in Electricity Board. Today, from the morning, phone calls of threats were coming to my brother-in-law on Mobile No. 9992959295, but, we felt that some person is making call in casual way and we remained working at our godown. In the meantime, this Youngman, along with his companions, were came at about time 1.30 P.M. at HP Petrol Pump near my godown and after making phone calls to our workers, they started calling them, But, our any worker was not gone there. In the meantime, at time about 2.00 P.M., they committed attack on our godown and on coming, they started attack on my brother-in-law, whose name is Mahender Monu. These were about 5-6 young men and all the above said young men were come by bringing swords, rod, hammers, pistol and other weapons along with them.

Firstly, they tried to cut his both arms from swords, then his nerves of arms were cut. Thereafter, they were trying to hit on the head with hammer and Monu remained stopping the hammer again and again with his hands and Monu tried to save himself by running here and there and when the labour, present there, tried to stop them, then showed pistol to all persons and said that if any person come in between us, then we will kill him. Today, we have to kill him and let us do it. In the meantime, Monu closed himself in a room in the godown for saving his life. Then, the above said persons were gone from there. Sd/- Gian Chand Sharma-9812080871". 3.

Contentions On behalf of the petitioner Learned counsel for the petitioner contends that there is an inordinate delay of more than 22 hours in lodging the instant FIR. He further contends that as per the prosecution story, the petitioner has given the

-3hammer blow on the leg of the injured Mahinder but the said injury has not been corroborated with the MLR. It has been asserted on behalf of the petitioner that the injured Mahinder has suffered two injuries, which has been attributed to the co-accused Sachin.

On behalf of the State On the other hand, learned State counsel has produced the custody certificate of the petitioner today in Court, which is taken on record. He seeks dismissal of the instant petition on the ground that the petitioner is involved in one more case, meaning thereby he is a habitual offender. 4.

Analysis Be that as it may, considering the custody period i.e. 03 months and 15 days for which the petitioner has suffered incarceration; there is an inordinate delay of more than 22 hours in lodging the instant FIR; the injured Mahinder has suffered two injuries, which has been attributed to the co-accused Sachin in addition to the fact that investigation is complete, challan stands presented to Court on 27.08.2024, charges are yet to be framed and out of total 14 prosecution witnesses, none has been examined so far, which is suffice for this Court to infer that the conclusion of trial will take a long time for which the petitioner cannot be detained behind the bars for an indefinite period.

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:-

-4- "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

-5investigations 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 firsttime 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 Re-Inhuman 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

-6Gurbaksh 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 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.

-7As 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.

D ECISION:

In view of the discussions made hereinabove, the petitioner is hereby directed to be released on regular bail 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) 27.09.2024 JUDGE adhikari Whether speaking/reasoned Yes/No Whether reportable Yes/No