- Court
- High Court of Punjab and Haryana
- Decided
- 14 August 2024
- Bench
- Kuldeep Tiwari
- Case no.
- CRM-M 27088/2024
Judgment
CRM-M-27088-2024 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
118 CRM-M-27088-2024 Date of Decision : August 14, 2024
JINDER MASIH .....Petitione VERSUS S!A!E "# P$NJA% .....Res&on'ent CORAM: HON'BLE MR JU!TICE "ULDEEP TI#ARI P esent : M . Mano( R. S)a *a+ A',ocate fo t)e &etitione . M . Pa 'ee& %a(a(+ DA-+ P.n(a/. "ULDEEP TI#ARI, J $O%&'(
1. !) o.0) t)e instant &etition+ t)e &etitione c a,es fo in'.10ence of t)is Co. t fo )is /einti en1a 0e' on eti.1a /ai1+ in case #IR No.82 'ate' 8.12.2022+ .n'e Sections 307+ 324+ 34 IPC+ etiiste e' at P.S. !i//e + Dist ict -. 'as&. . ALLEGATIONS AGAINST THE PETITIONER
2. !)e instant #IR 4as etiiste e' on a co*&1aint *a'e /5 one S)ee1a 4ife of !oti Masi). !)e e1e,ant e6t act of t)e sa*e ea's as .n'e :- "Statement of Sheela w/o Toti Masih r/o Babri Nangal aged about 50 years, M.No.8427549179. Stated that I am a resident of abovementioned address and do the domestic work. On 30.11.2022, at around 6.00 am, morning, I was going for walk outside through the road. When I reached near drain bridge then from the opposite side, Jinder Masih s/o Anayat Masih armed with dattar, Karan s/o Jinder Masih empty handed, Vicky s/o Tarsem Masih empty handed and Dhyana s/o Tarsem Masih empty handed rs/o Babri Nanga were standing then Vicky raised lalkara to catch hold of me, teach him a lesson for causing harassment to his wife by his son Rajan then Vicky, Dhyana and Karan caught hold of me from arms and Jinder Masih gave dattar blow upon me which hit on my neck below the chin and I got stained with the blood and raised noise of mar dita mar dita then on hearing my noise, villagers and my son Rajan also came at the spot then the abovesaid assailants fled away from the spot alongwith their weapons. Then my son Rajan after arranging the vehicle got me admitted at Civil Hospital Gurdaspur in my injured condition where doctor issued me MLR and gave first aid to me. Due to receiving excess injuries by me, doctor referred me to Amritsar where my son after arranging the vehicle and got me admitted at EMC AJAY KUMAR Hospital Amritsar where I undergoing treatment.7
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SUBMISSIONS OF LEARNED COUNSEL FOR THE PETITIONER
3. The main thrust of the learned counsel for the petitioner, in his asking for the relief (supra) is the period of incarceration, which he has suffered during the trial. He submits that the petitioner has suffered incarceration of more than 1 year, 4 months as on today and till date only one witness has been examined, out of total 16 cited witnesses by the prosecution in the final report. He further submits that though there are attribution of main injury to the present petitioner, which was subsequently declared dangerous to life, however, now the victim is hale and hearty, and she has also been examined as PW1. He also submits that the veracity of the allegations is yet to be evaluated by the learned trial Court concerned during the course of trial. The recovery i.e. weapon of offence, has already been effected and there is nothing to be recovered from the present petitioner. SUBMISSIONS OF THE LEARNED STATE COUNSEL
4. Per contra, the learned State counsel, who is in receipt of advance notice, has placed on record the custody certificate qua the petitioner, as issued by the Superintendent of Central Jail, Gurdaspur as well as the short reply dated 13.8.2024, by way of an affidavit of DSP, City, District Gurdaspur. He has opposed the grant of regular bail to the petitioner and submits that the petitioner is the main accused, who caused datar blow on the neck of the victim, therefore, the intention of causing murder is very apparent. He further informs this Court on instructions imparted to him by ASI Rakesh Kumar that in this case, the charges have been framed on dated
29.11.2023 and out of total 16 cited witnesses by the prosecution in the final report, only 1 witness i.e. main victim stands examined till date. ANALYSIS
5. Before embarking upon the process of evaluating the arguments addressed by the learned counsels for the parties and penning down any opinion upon the instant petition, it is deemed imperative to capture an overview of some significant legal propositions.
6. "Bail is the Rule and Jail is an Exception". This basic principle of criminal jurisprudence was laid down by the Hon'ble Supreme Court, way AJAY KUMAR back in 1978, in its landmark judgment titled "State of Rajasthan V.
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Balchand alias Baliay", 1977 AIR 2447, 1978 SCR (1) 535. This principle finds its roots in one of the most distinguished fundamental rights, as enshrined in Article 21 of the Constitution of India. Though the underlying objective behind detention of a person is to ensure easy availability of an accused for trial, without any inconvenience, however, in case the presence of an accused can be secured otherwise, then detention is not compulsory.
7. The right to a speedy trial is one of the rights of a detained person. However, while deciding application for regular bail, the Courts shall also take into consideration the fundamental precept of criminal jurisprudence, which is "the presumption of innocence", besides the gravity of offence(s) involved.
8. In "Gurbaksh Singh Sibbia v. State of Punjab", (1980) 2 SCC 565 at 586-588, the purpose of granting bail is set out by the Hon'ble Supreme Court with great felicity as follows:- "27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra v. King Emperor, AIR 1924 Calcutta 476 (479, 480) that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the 'Meerut Conspiracy cases observations are to be found regarding the right to bail which deserve a special mention. In K.N. Joglekar v. Emperor, AIR 1931 Allahabad 504
(SB) it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. It was observed by the Court that there AJAY KUMAR was no hard and fast rule and no inflexible principle governing
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the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor v. H.L. Hutchinson, AIR 1931 Allahabad 356 at p. 358 it was said that it was very unwise to make an attempt to lay down any particular rules which bind the High Court, having regard to the fact that the legislature itself left the discretion of the Court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence. XX XX XX
29. In Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118 it was observed by Goswami, J., who spoke for the Court, that "there cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail".
30. In American Jurisprudence (2d, Vol. 8, page 806, para 39) it is stated : "Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or AJAY KUMAR bond would effect that end."
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It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail."
9. Also, in "Gudikanti Narasimhulu and others Versus Public Prosecutor, High Court of Andhra Pradesh", 1978 AIR (Supreme Court) 429, the Hon'ble Supreme Court, speaking through Krishna Iyer, J., has enunciated the principles of bail thus : "9. Thus the legal principle and practice validate the court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record-particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habitual, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the member of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.
10. The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to he goals of community good and State necessity spelt out in Article 19. Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of justice - to the individual involved and society affected.
11. We must weight the contrary factors to answer the test the AJAY KUMAR reasonableness, subject to the need for securing the presence
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of the bail applicant. It makes sense to assume that a man on bail has a better chance to prepare of present his case than one remanded in custody. And if public justice is to be promoted. mechanical detention should be demoted. In the United States, which has a constitutional perspective close to ours, the function of bail is limited, 'community roots' of the applicant are stressed and, after the Vera Foundation's Manhattan Bail Project, monetary suretyship is losing ground. The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible.
12. A few other weighty factors deserve reference. All deprivation of liberty is validated by social defence and individual correction along an anti-criminal direction. Public justice is central to the whole scheme of bail law. Fleeing justice must be forbidden but punitive harshness should be minimised. Restorative devices to redeem the man, even through community service, meditative drill, study classes or other resources should be innovated, and playing foul with public peace by tampering with evidence, intimidating witnesses or committing offences while on judicially sanctioned 'free enterprise', should be provided against. No seeker of justice shall play confidence tricks on the court or community. Thus, conditions may be hung around bail orders, not to cripple but to protect. Such is the holistic jurisdiction and humanistic orientation invoked by the judicial discretion correlated to the values of our Constitution.
13. Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate AJAY KUMAR acquittal pertinence to a bail plea when the appeal before this
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Court pends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the court's verdit once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding if that be so - of innocence has been recorded by one court. It may not be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, if enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man and socio-geographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and policy prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the court into a complacent refusal."
10. This Court has examined the instant petition on the touchstone of the hereinabove extracted settled legal principle(s) of law and is of the considered opinion that the instant petition is amenable for being allowed.
11. The reason for forming the above inference emanates from the factum that:- (i) the petitioner has suffered incarceration of 1 year, 3 months and 27 days as on today and he is not involved in any other case (ii) further the trial is at initial stage, as only one witness has been examined out of total 16 cited witnesses, therefore, the conclusion of trial would take long time and (iii) the victim is now in a stable condition. FINAL ORDER
12. Considering the allegations against the petitioner and the incarceration suffered by the present petitioner, this Court deems it appropriate to grant the concession of regular bail to the petitioner. Therefore, without commenting upon the merits and circumstances of the present case, the present petition is allowed. The petitioner is ordered to be
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released on bail on furnishing of bail bond and surety bond to the satisfaction of concerned Chief Judicial Magistrate/trial Court/Duty Magistrate.
13. However, it is clarified that if in future, the petitioner is found indulging in commission of similar offences, as are involved herein, the respondent-State shall be at liberty to make an appropriate application seeking cancellation of regular bail, as granted by this Court. Moreover, anything observed here-in-above shall have no effect on the merits of the trial and is meant for deciding the present petition only.
(KULDEEP TIWARI) August 14, 2024 JUDGE ajay-1 Whether speaking/reasoned. : Yes/No Whether Reportable. : Yes/No
Source: High Court of Punjab and Haryana, through the eCourts High Court services, via the Indian High Court Judgments open dataset by Dattam Labs (CC BY 4.0). Text was extracted from the official PDF and may contain conversion errors. Check the official PDF before relying on it.