IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 1360 of 2017. Decided on: 03.11.2017. . [ENTITY] Petitioner. Versus [ENTITY] Respondent. Coram: Hon'ble Mr. Justice [ENTITY], Judge. Whether approved for reporting? 1 For the petitioner: Mr. [ENTITY], Proxy Counsel. For the respondent: Mr. [ENTITY], Additional Advocate r General. Inspector [ENTITY], SHO, P.S. Sarkaghat, District Mandi, is present. [ENTITY], Judge (oral):
By way of instant petition filed under [SECTION] Cr.
P.C, prayer has been made for grant of bail in case FIR No. 71 /17, dated 01.04.2017, under [SECTION], [SECTION] of [ACT], registered at Police Station, Sarkaghat, District Mandi, Himachal Pradesh.
2. Sequel to order dated 27.10.2017, Inspector [ENTITY], SHO, P.S. Sarkaghat, District Mandi, HP, has come present alongwith the record. Mr. [ENTITY], learned Whether the reporters of the local papers may be allowed to see the judgment?
Additional Advocate General, has also placed on record status report prepared on the basis of the investigation carried out by .
the Investigating Agency. Record perused and returned.
Though scrutiny of record as well as status report made available to this Court, suggests that aforesaid FIR came to be registered at the behest of Sh. [ENTITY], who in his statement under [SECTION] [ACT], alleged that his son namely [ENTITY] has been murdered by [ENTITY], son of [ENTITY] and [ENTITY], son of [ENTITY], who at the time of alleged incident were present with deceased [ENTITY].
3. On the basis of the aforesaid complaint, the police arrested [ENTITY], who is still in judicial custody. Though, above named complainant had also named [ENTITY] in his complaint, but since nothing was found against him, no case was registered against him. However, fact remains that during investigation, police found involvement of present bail petitioner [ENTITY], son of [ENTITY]. As per police version, [ENTITY] was seen with [ENTITY] as well as deceased [ENTITY] just before the alleged incident. Two persons namely [ENTITY] and [ENTITY] stated to the police that they had seen [ENTITY] in the company of [ENTITY] and present bail petitioner namely [ENTITY].
4. Ms. [ENTITY], Proxy Counsel, representing the petitioner, while referring to the record/status report contended that there is no involvement of the bail petitioner and as such, he deserves to be enlarged on bail. Learned Proxy Counsel representing the bail petitioner, while inviting attention of this Court to the status report filed by the respondent-State, vehemently argued that it has come in investigation that the co-
accused namely [ENTITY] had pushed the deceased [ENTITY] on the road in front of some vehicle and as such, there was no occasion for police/investigating agency to implicate the bail petitioner in the case. Learned Proxy Counsel, further contended that only evidence against the bail petitioner at this stage is that he was seen by two persons in the company of deceased [ENTITY] and the accused namely [ENTITY], but since it has come in the investigation that it was the accused [ENTITY], who had pushed the deceased on the road, there is no occasion as such to keep the bail petitioner in custody, who is incarcerating in jail for last five months for no fault of him.
Learned Proxy Counsel representing the bail petitioner, further contended that otherwise also, bail petitioner is local resident of area and he shall be always available for trial and there is no .
likelihood of his fleeing from justice and as such, he deserves to be released on bail.
5. Mr. [ENTITY], learned Additional Advocate General, while opposing the aforesaid prayer having been made by learned counsel for the bail petitioner, vehemently argued that it stands duly established on record that there was a conspiracy to kill deceased [ENTITY], and as such, it cannot be said that present bail petitioner is not involved in the crime.
While referring to the status report, learned Additional Advocate General, contended that two persons have categorically stated that they saw present bail petitioner with deceased [ENTITY] just 10-15 minutes prior to the alleged incident and as such, possibility of his involvement cannot be ruled out. Mr. [ENTITY], fairly conceded that it is true that during investigation, it has come that accused [ENTITY] actually pushed the deceased [ENTITY] towards vehicle, but there is ample evidence available on record to suggest the fact that present bail petitioner conspired with [ENTITY] to kill/murder the deceased [ENTITY].
However, Mr. [ENTITY], fairly conceded that since challan stands filed in the competent Court, nothing is required to be recovered from the bail petitioner. Mr. [ENTITY], further .
contended that if this Court intends to release the bail petitioner on bail, he may be directed to make himself available during trial as and when required by the trial court or police for recording of his statement.
6. After having carefully perused the status report as well as learned counsel representing the parties, this Court finds that at present, there is no direct evidence available on record against bail petitioner suggestive of the fact that he hatched conspiracy with other co-accused namely [ENTITY] to murder/kill [ENTITY]. There is evidence adduced on record by the Investigating Agency that bail petitioner was seen in company of the co-accused [ENTITY] as well as deceased [ENTITY] just before 10-15 minutes before the alleged incident, but this Court sees substantial force in the arguments of the learned Proxy Counsel representing the petitioner that in view of the specific information contained in status report that it has come in investigation that [ENTITY] had pushed the deceased [ENTITY] on road against some vehicle, statements if any, made by persons named above, may not be very relevant to ascertain the involvement of bail petitioner in crime. Though, aforesaid aspect of the matter is to be considered by the court below, on .
the basis of the evidence adduced on record by Investigating Agency, but this Court after having perused the report sees no reasons to keep the bail petitioner in custody, who has already suffered for more than five months.
7. The Hon'ble Apex Court in [PRECEDENT], has held that there are no hard and fast rules regarding grant of refusal of bail, each case has to be considered on its own merits. The matter always calls for judicious exercise of discretion by the court.
Where the offence is of serious nature, the court has to decide the question of grant of bail in the light of such consideration as the nature and seriousness of offence, character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of presence of the accused not being secured at the trial.
8. Otherwise also, normal rule is of bail and not jail.
Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.
9. Reliance is placed upon another judgment of the Hon'ble Apex Court titled as The [PRECEDENT], wherein in para 2 of the judgment, it has been held as under:
"2. The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice of thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court. We do not r intend to be exhaustive but only illustrative."
It is beaten law of the land that the fundamental rule is bail, not jail.
10. The Apex Court in [PRECEDENT], has laid down the following principles to be kept in mind, while deciding petition for bail:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(viii) reasonable apprehension of the witnesses being influenced; and
(ix) danger, of course, of justice being thwarted by grant of bail.
11. In view of the aforesaid discussion, petitioner has carved out a case for grant of bail. Accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to furnishing personal bonds in the sum of Rs.25,000/- each with one surety each in the like amount to the satisfaction of concerned JMIC, Mandi with following conditions:
(a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;
(b) he shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and
(d) He shall not leave the territory of India without the prior permission of the Court.
12. It is clarified that if the petitioner misuses the liberty or .
violate any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.
13. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone.
The aforesaid petition stands accordingly disposed of.
Copy dasti.
([ENTITY]), Judge.
3rd November, 2017 (reena)