1. Bail petitioner, Ajay Kumar [being in custody since 03.02.2024] has approached this Court, under Section 439 of the Code of Criminal Procedure [hereinafter referred to as Cr.P.C] seeking regular bail originating from the FIR No. 21 of 2024 dated 01.02.2024, registered at Police Station Damtal, District Kangra [H.P.], under Sections 307, 341, 323, 324, 504, 147, 148 and 149 of the Indian Penal Code (referred to as the IPC Act).
FACTUAL MATRIX
2. Case set up by Mr. Rajesh Mandhotra, Learned Counsel for the bail petitioner [Ajay Kumar] is that the police had arrested the petitioner on 03.02.2024 and he is lodged in Lala Lajpat Rai District Open Jail and Correctional Home, Dharamshala, District Kangra, (HP).
2(i). Learned counsel for the petitioner submits that on 01.02.2024, the complainant, Raj Kumari and her mother Tara Devi were riding a Scooty and his son Kulwinder Singh @ Sabo and Saurabh were alongwith them on a motorcycle. On 01.02.2024, at about 6:30 PM, as soon as they reached near Nannu Hotel, a White Coloured car came from behind and stopped in front of them. The occupants of the car came infront of the Complainant-Raj Kumari, her mother, his son Kulwinder Singh @ Sabo and Saurabh and they attacked Kulwinder and Saurabh with “Darat”, resulting in bleeding on the spot. It was further alleged in the complainant that eight persons namely Sunil @ Bhangi, Raja, Surjeet @ Koda, Suraj, Shekhu, Aman, Abhay and Kaka were named as attackers by the complainant Raj Kumari, as aforesaid.
2(ii). The Complainant-Raj Kumari averred that out of these eight persons who came in the car(s), 3-4 persons attacked his son Kulwinder Singh @ Sabo and Saurabh with ‘Darat’ with fists/kick blows. After being attacked, the complainant raised hue and cry, due to which, the local villagers assembled on the spot and thereafter the accused, fled away from the scene of occurrence.
2(iii). Learned Counsel further points out that the bail petitioner [Ajay Kumar] after his arrest on 03.02.2024 has filed a bail application No. 87-XXII/2024 on 22.03.2024 for grant of regular bail but, the aforesaid application was dismissed by the Learned Trial Court on 04.04.2024, [Annexure P-1]. After rejection of the regular bail, the bail petitioner [Ajay Kumar] continues to be in custody, as on day. It is further averred in petition that the bail petitioner is 27 years of age and there is nothing on record, to connect the bail petitioner with the alleged offence.
2(iv). After rejection of bail, by the Trial Court, on 04.04.2024 [Annexure P-1], the bail petitioner has approached this Court, by way of the instant application seeking
regular bail, on the ground that he has falsely implicated and there is no direct/indirect evidence against the bail petitioner. It is averred that the bail petitioner is a respectable person of the society and there is no apprehension or possibility of his fleeing away. It is further submits that the bail petitioner shall join investigation as and when required and nothing is to be recovered from the bail petitioner and the bail petitioner shall abide by the terms and conditions as may be imposed by this Court.
In these circumstances, Learned Counsel submits that the bail petitioner [Ajay Kumar] may kindly be granted the concession of bail, by this Court.
PROCEEDINGS BEFORE THIS COURT
3. Consequent upon the rejection of the bail application on 04.04.2024, [Annexure P-1] by the Learned Trial Court, the bail petitioner [Ajay Kumar] has approached this Court for regular bail.
3(i). The bail application was listed on 02.05.2024 when, this Court issued notice and directed the State Authorities to furnish the Status Report. The matter was then listed on 20.05.2024 when, the Status Report dated 19.05.2024, on instructions of SHO Police Station Damtal, District Kangra, (HP) was taken on record. The matter was then listed on 27.05.2024 when, the Second Status Report dated 26.05.2024 was taken on record. The bail application was then listed on 15.06.2024 when a Fresh Status Report dated 13.06.2024 was taken on record.
The Status Reports dated 19.05.2024, 26.05.2024 and 13.06.2024, as referred to above, were supplied to the Learned Counsel for the bail petitioner so as to enable Learned Counsel to make submissions in the matter.
STAND OF STATE AUTHORITIES IN THE STATUS REPORTS
4. A perusal of the Status Reports dated 19.05.2024, 26.05.2024 and 13.06.2024, reveal that the stand of State Authorities in all these Status Report is, pari materia in all respects.
4(i). A perusal of the Status Reports reveal that the Complainant-Raj Kumari had lodged a complaint on 01.02.2024, narrating the entire incident that eight persons attacked his son Kulwinder Singh @ Sabo and Saurbh at about 6:30 PM when, they had reached near Nannu Hotel Bhadroya. The Status Reports reveal that two of the accused, Abhay and Aman, attacked Kulwinder Singh with ‘Darat and Datar’ due to which Kulwinder Singh sustained injuries, which is clear from the MLC.
4(ii). The Status Report further reveals that the grandmother of injured Kulwinder Singh, gave a statement to the police, narrating the said incident. The Status Reports indicates that on 03.02.2024, the police arrested Abhay Kumar, Ajay Kumar and Aman Verma in the matter.
4(iii). During investigation, the two vehicles i.e. Swift bearing No. HP-06A-1098 and Bollero bearing No. HP-38A- 8159 were taken into possession by the police.
4(iv). The Status Report further reveals that at the instance of accused Abhay Kumar, Aman Verma and Sunil Kumar @ Bhangi, the police had recovered ‘Darat and Datar’ on disclosures made by these accused. The Status Reports reveal that so far as the bail petitioner [Ajay Kumar] is concerned, five cases, under NDPS Act are pending against him.
4(v). The Status Report reveals that the bail petitioner [Ajay Kumar] had approached the Trial court for regular bail which was dismissed on 04.04.2024, [Annexure P-1].
4(vi). The Status Report indicates that the Medical Officer, Civil Hospital Nurpur, gave an opinion that so far as injuries number one to three are concerned the same are grievous in nature and the injuries No 4 to 9 are simple in nature.
STAND OF STATE AUTHORITIES IN STATUS REPORTS REGARDING BAIL PETITIONER :
5. So far as the bail petitioner[Ajay Kumar] is concerned, the Status Report(s) do not attribute any role of the petitioner, in the commission of offence. The Status Report does not indicate any prima facie case or any material against the bail petitioner. The Status Report(s) admit that the petitioner is not required for any further investigation and nothing is to be recovered from the petitioner.
6. Heard, Mr. Rajesh Mandhotra, Learned Counsel for the bail-petitioner and Mr. Anish Banshtu, Learned Deputy Advocate General for the Respondent-State.
7. Before dealing with the present application, it is necessary to take note of the provisions of Sections 307, 341, 323, 324, 504, 147, 148 and 149 of the Indian Penal Code as under:-
“Section 147 Indian Penal Code:
Punishment for rioting.—Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 148 Indian Penal Code:
Rioting, armed with deadly weapon.— Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Section 149 Indian Penal Code:
Every member of unlawful assembly guilty of offence committed in prosecution of common object.— If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
Section 307 Indian Penal Code:
Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned.
Section 323 Indian Penal Code:
Punishment for voluntarily causing hurt.— Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 324 Indian Penal Code:
Voluntarily causing hurt by dangerous weapons or means--- Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Section 341 Indian Penal Code:
Punishment for wrongrul restraint Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
Section 504 Indian Penal Code:
Intentional insult with intent to provoke breach of the peace.— whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.
8. Notably, the claim of the suspect-accused for pre-arrest or post-arrest bail-regular bail is to be examined/tested within the parameters prescribed in the Code of Criminal Procedure and also the broad para-meters mandated by the Hon’ble Supreme Court while dealing with the claim for bail in Gurbaksh Singh Sibbia versus State of Punjab (1980) 2 SCC 565, Ram Govind Upadhyay versus Sudarshan Singh (2002) 3 SCC 598; Kalyan Chandra Sarkar versus Rajesh Ranjan, (2004) 7 SCC 528; Prasanta Kumar Sarkar versus Ashish Chatterjee, (2010) 14 SCC 496 ; reiterated in P. Chidambaram versus Directorate of Enforcement, (2019) 9 SCC 24, mandating that the bail {anticipatory or regular} is to be granted where the case is frivolous or groundless and no prima- facie or reasonable grounds exist which lead to believe or point out towards the accusation and even these parameters for bail have been reiterated in Sushila Aggarwal versus State-NCT Delhi, (2020) 5 SCC 01.
8(i). While dealing with the case for grant of bail, three judges bench of the Hon’ble Supreme Court, after reiterating the broad parameters, has mandated in Deepak Yadav versus State of Uttar Pradesh, (2022) 8 SCC 559, in Para-25 that the “nature of crime” has a huge relevancy, while considering the claim for bail.
8(ii). In the case of Ansar Ahmad versus State of Uttar Pradesh, 2023 SCC Online SC 974, the Hon’ble Supreme Court had expanded the horizon of the broad parameters, which are to be primarily taken into account, for considering the claim for regular bail or anticipatory bail as under:
“11. Mr. R. Basant, the learned Senior Counsel appearing for one of the private respondents that the Court while granting bail is not required to give detailed reasons touching the merits or de-merits of the prosecution case as any such observation made by the Court in a bail matter can unwittingly cause prejudice to the prosecution or the accused at a later stage. The settled proposition of law, in our considered opinion, is that the order granting bail should reflect the judicial application of mind taking into consideration the well-known parameters including:
(i) The nature of the accusation weighing in the gravity and severity of the offence;
(ii) The severity of punishment;
(iii) The position or status of the accused, i.e. whether the accused can exercise influence on the victim and the witnesses or not;
(iv) Likelihood of accused to approach or try to approach the victims/ witnesses;
(v) Likelihood of accused absconding from proceedings;
(vi) Possibility of accused tampering with evidence;
(vii) Obstructing or attempting to obstruct the due course of justice;
(viii) Possibility of repetition of offence if left out on bail;
(ix) The prima facie satisfaction of the court in support of the charge including frivolity of the charge;
(x) The different and distinct facts of each case and nature of substantive and corroborative evidence.
12. We hasten to add that there can be several other relevant factors which, depending upon the peculiar facts and circumstances of a case, would be required to be kept in mind while granting or refusing bail to an accused. It may be difficult to illustrate all such circumstances, for there cannot be any straight jacket formula for exercising the discretionary jurisdiction vested in a Court under Sections 438 and 439 respectively of the Cr. PC, as the case may be.”
9. In normal parlance, the general principle of law is that bail is a rule and jail is an exception. However, this Court is conscious of the fact that power under Section 439 Cr.P.C. is an extraordinary power and the same has to be exercised sparingly. It is trite law that while considering the prayer for bail {pre-arrest bail or regular bail], a prima-facie opinion is to gathered as to whether reasonable grounds exist pointing towards the accusation or whether the accusation is frivolous and groundless with the object of either injuring or humiliating or whether a person has falsely roped in the crime needs to be tested in background of self-imposed restrains or the broad parameters mandated by law, as referred to herein above.
10. This Court is also conscious of the fact that as per the mandate of law, in Criminal Appeal No.3840 of 2023, titled as Saumya Churasia versus Directorate of Enforcement, decided on 14.12.2023, while considering the prayer for bail, though a Court is not required to weigh the evidence collected by Investigating Agency meticulously, nonetheless, the Court should keep in mind the nature of accusation, the nature of evidence collected in support thereof, the severity of punishment prescribed for alleged offences, the character of accused, the circumstances which are peculiar to the accused, the reasonable possibility of securing the presence of the accused during trial, reasonable apprehension of the witnesses being tampered with, the large interests of the public/state.
In this background, while testing the claim for bail, the Court, is required to form a prima-facie opinion in the context of the broad-parameters referred to above, without delving into the evidence on merits, as it may tend to prejudice the rights of the accused as well as the prosecution.
ANALYSIS OF CLAIM IN INSTANT CASE
11. After taking into account the entirety of the facts and circumstances, referred to above, including the material on record, which is borne out from the Status Reports filed by the State Authorities and the mandate of law, as referred to above, this Court is of the considered view that the bail-petitioner [Ajay Kumar] deserves to be granted the concession of bail, for the following reasons:- 11(i). Perusal of the Status Report filed by the State Authorities does not point out any prima facie case or reasonable grounds exist towards the accusation against the bail-petitioner [Ajay Kumar].
11(ii). The material on record including the Status Reports and the MLC do not attribute any reasonable grounds, to believe the accusation against the bail petitioner [Ajay Kumar] in the instant case.
11(iii). Even the Status Reports filed by the State Authorities do not point out that the petitioner was a member of unlawful assembly and there is nothing on record to prima facie indicate that the petitioner had entertained the common object, along with other(s) to commit the overt act. In absence of any material in the Status Reports, this Court is of the prima facie view, that the plea of the petitioner, for enlargement on bail, carries weight, in view of the mandate of the law of the Hon’ble Supreme Court, in Amrika Bai versus State of Chhattisgarh, (2019) 4 SCC 620, which reads as under:-
“12. The above observations cast a serious doubt on the involvement of the appellant in the incident in which the deceased was beaten to death and she suffered unexplained injuries. Thus, she cannot be termed to be a member of the unlawful assembly, much less one which was alleged to have been constituted with the common object of murdering the deceased. The law is well settled on the aspect that mere presence in an unlawful assembly cannot render a person liable unless there was a common object, being one of those set out in Section 141 IPC and she was actuated by that common object.
Moreover, the aforesaid principle of law with respect to the ambit scope and applicability of Section 147 and 149 of the Indian Penal Code has been reiterated by the three Judges Bench of the Hon’ble Supreme Court in Parshuram versus State of M.P., (2023) SCC Online SC 1416, as under:-
“23. It could thus clearly be seen that the Constitution Bench has held that it is not necessary that every person constituting an unlawful assembly must play an active role for convicting him with the aid of Section 149 of IPC. What has to be established by the prosecution is that a person has to be a member of an unlawful assembly,i.e. he has to be one of the persons constituting the assembly and that he had entertained the common object along with the other members of the assembly, as defined under Section 141 of IPC. As provided under Section 142 of IPC, whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly.”
11(iv). In the backdrop of the mandate of law, in Amrika Bai and Parshuram, (supra), coupled with the fact, that the Status Reports do not indicate that the petitioner was a member of unlawful assembly, having common object, akin to other members of unlawful assembly and it was due to this the beatings were given to the injured. Mere presence of the bail petitioner cannot attribute culpability; when, the fact as to whether the petitioner was a member of unlawful assembly and had entertained the common object to resort to an overt act under Section 141 of Indian Penal Code along with matter is yet to be tested, examined and proved in trial. In the instant case, this Court is of the considered view that once the twin requirements of common object and knowledge of common object is not borne out in the Status Reports by the State Authorities, therefore, no prima facie accusation is made out, against the petitioner; in these circumstances, and the plea of the petitioner for enlargement on bail carries weight. Ordered accordingly.
11(v). Further in absence of any prima accusation the pre trial incarceration certainly amounts to depriving the petitioner [Ajay Kumar] of his personal liberty under Article 21 of the Constitution of India. Even, the detention of the bail petitioner without there being any material on record to indicate any prima facie accusation certainly amounts to detaining the petitioner on the basis of mere suspicion, at this stage.
11(vi). Even the material on record which is borne out from Status Reports indicate that the ‘Darat’ was recovered at the instance of Abhay, Aman Verma and Sunil @ Bhangi under Section 27 of the Indian Evidence Act.
12. The past conduct or past antecedents, without there being any prima facie accusation cannot in itself be a ground to deny the concession of bail to the bail- petitioner. The past conduct can be taken care of by imposing stringent conditions against the bail petitioner in the instant case.
13. In view of the above discussion, the instant petition is allowed, in peculiar facts of this case and the petitioner is ordered to be released on bail, in FIR No. 21 of 2024, dated 01.02.2024, registered with Police Station Damtal, District Kangra, Himachal Pradesh, subject to furnishing of a personal bond, in the sum of Rs 80,000/- with one surety in the like amount, to the satisfaction of Learned Trial Court subject to the following conditions:-
"(i) Petitioner shall disclose his functional E-Mail IDs/WhatsApp number and that of his surety.
(ii) Petitioner shall not hinder the smooth flow of the investigation and shall join the investigation, as and when called, by the Investigating Agency;
(iii) Petitioner shall not jump over the bail and also shall not leave the country without prior permission of the Court;
(iv) Petitioner shall not tamper with the witnesses or the evidence in any manner;
(v) Petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or the witnesses;
(vi) Petitioner shall neither involve himself nor shall he abet the commission of any offence. Involvement or abetting in any offence, shall entail cancellation of bail, automatically;
(vii) It is clarified that violation of any of the conditions imposed hereinabove, shall entail cancellation of bail automatically; and
(viii) The Respondent(s) are at liberty to move this Court for modification or cancellation of bail, if the circumstances, so necessitate or in case of violation of any of the conditions mandated herein.
(ix) Petitioner shall join the investigation and shall participate in the trial in five cases which are pending against him. Failure to participate in the investigation or in the trial in any of the said cases shall entail automatic cancellation of bail in this case."
14. Any observation(s) contained in this judgment, shall not be construed, in any manner, as on expression of opinion on merits of the case, either for the purposes of investigation or trial, [for or against either of the parties] herein]. The observations made herein-in-above are only for purpose of disposal of the instant bail application.
In aforesaid terms, the instant petition is allowed and the pending miscellaneous application(s), if any, shall also stand disposed of, accordingly.
