Sandeep Sharma, J
1. Bail petitioner namely Vinay Dhawan, who is behind bars since 7.5.2018, has approached this Court in the instant proceedings filed under Section
439 of Cr.PC, praying therein for grant of regular bail in connection with FIR No. 110/18, dated 7.5.2018, under Section 302 read with Section 34 of
IPC, registered at P.S. Baddi, District Solan, H.P.
2. Sequel to order dated 13.6.2019, SI Mehar Singh Chauhan, P.S. Baddi, District Solan, H.P., has come present alongwith records. Mr. Kunal
Thakur, learned Deputy Advocate General, has also placed on record status report prepared on the basis of investigation carried out by the
Investigating Agency.
3. Record made available to this Court reveals that on 7.5.2018, complainant namely Jagmohan got his statement recorded under Section 154 Cr.PC.,
at PS Baddi, District Solan, H.P., alleging therein that on 6.5.2018, at 5:00 pm, when he had gone to his fields near Omexe colony, he saw deceased
Harjinder Pal getting the construction of room done in his field. He further alleged that at 6:00 pm, above named Harjinder Pal went to his shop i.e.
Kanishk Gasage and thereafter at 8:00pm, accused Ramesh, who runs City Cable at Baddi, came on the spot alongwith his son and other four five
people. Firstly, above named accused hurled abuses at deceased Harjinder Pal and thereafter gave him merciless beatings using swords, daggers and
knives etc. As per complainant, when deceased Harjinder fell on road on account of beatings given to him by the accused Ramesh Dhawan, present
bail petitioner and with other persons, accused Ramesh Dhawan ran over his vehicle bearing HP12H-0389 (XUV) over the deceased Harjinder Pal.
Complainant as well as other persons present on the spot tried to stop Ramesh Dhawan and other persons, but he succeeded in fleeing away from the
spot. Complainant Jagmohan with the help of other people took the deceased Harjinder Pal to CHC Baddi. On the basis of aforesaid statement made
by the complainant, formal FIR as detailed herein above came to be lodged against the accused namely Ramesh Dhawan and Vinay Dhawan i.e.
present bail petitioner. As per investigation Ramesh Dhawan, who allegedly ran over the vehicle over the deceased Harjinder Pal absconded and
subsequently, he was arrested at Sales Tax Toll at Baddi, whereas present bail petitioner, who happens to be son of Ramesh Dhawan, came to be
arrested from his house on the same day.
4. Record reveals that during investigation though complainant maintained that present bail petitioner Vinay Dhawan was also present on the spot at
the time of alleged incident alongwith his father Ramesh Dhawan, but all other witnesses associated by Investigating Agency save and except another
witness Munish, nowhere stated something specific with regard to presence of the present bail petitioner Vinay Dhawan. Even initial version put forth
by the complainant Jagmohan that at the first instance, deceased Harjinder Pal was given beatings by the co-accused Ramesh Dhawan and other
persons with the aid of swords, daggers and knives never came to be corroborated by other witnesses of spot associated by the Investigating Agency.
Record reveals that since police in preliminary inquiry arrived at a conclusion that presence of the present bail petitioner Vinay Dhawan is doubtful on
the spot on the alleged date of incident, it moved an application under Section 169 Cr.PC for discharge of present bail petitioner, but before this
application could be decided by the court below, complainant Jagmohan along with person namely Raghubir, approached the police with an intention to
give supplementary statement. In supplementary statement, complainant Jagmohan though denied that at the time of alleged incident, knives, daggers
and swords were used by the accused Ramesh Dhawan and other persons, but maintained that on the date of alleged incident, present bail petitioner
Vinay Dhawan was also present on the spot alongwith his father. Another person namely Raghubir also supported aforesaid version put forth by the
complainant. After recording of aforesaid fresh statements given by the complainant and person namely Rahubir, police withdrew the application filed
by it under Section 169 Cr.PC. Now investigation in the case is complete and challan stands filed in the competent court of law.
5. Mr. Kunal Thakur, learned Deputy Advocate General while fairly acknowledging factum with regard to completion of investigation and filing of
challan contends that there is overwhelming evidence available on record suggestive of the fact that present bail petitioner was also present on the
spot along with his father Ramesh Dhawan at the time of the alleged incident. He further contends that keeping in view the overall evidence collected
on record by the Investigating Agency, it cannot be said that present bail petitioner did not play any active role at the time of alleged incident and as
such, keeping in view the gravity of offence alleged to have been committed by the present bail petitioner along with his father Ramesh Dhawan,
present petition deserves to be dismissed. Lastly, Mr. Thakur, contends that this court cannot lose sight of the fact that one person has lost his life in
the alleged incident, who was allegedly crushed to death by the bail petitioner and another co-accused Ramesh Dhawan.
6. Mr. Satyen Vaidya, learned Senior counsel duly assisted by Mr. Ajay Kochhar and Mr. Vivek Sharma, Advocates, contends that bare perusal of
statements given by the witnesses associated by the Investigating Agency, especially, subsequent statement given by the complainant on 15.5.2018,
clearly suggests that present bail petitioner has been falsely implicated. Mr. Vaidya, contends that bare perusal of statements made by witnesses
associated by the Investigating Agency nowhere suggests that present bail petitioner first gave beatings to the deceased and thereafter, crushed him
under the tyres of his vehicle, which in fact was being driven by his father Ramesh Dhawan. Mr. Vaidya while specifically referring to the subsequent
statement made by the complainant on 5.5.2018, made a serious attempt to persuade this Court to agree with his contention that version put forth by
the complainant cannot be believed, because initially he alleged that deceased Harjinder Pal was beaten by Ramesh Dhawan using swords, knives and
daggers, but subsequently, he in his supplementary statement categorically retracted from earlier statement and claimed that present bail petitioner
was also present. Lastly, Mr. Vaidya contends that even as per CDR details, tower location of the bail petitioner was not found to be of the alleged
spot of incident.
7. Having heard learned counsel for the parties and perused record made available to this Court, this Court finds that initially, complainant in his
statement recorded on 7.5.2018, alleged that accused Ramesh Dhawan along with his son came to the spot and hurled abuses on deceased Harjinder
Pal. He also alleged in that statement that thereafter deceased Harjinder Pal was given beatings by the accused Ramesh Dhawan and other 4-5
people using swords, knives and daggers, but interestingly, this witness in his supplementary statement, which he got recorded on 15.5.2018, took a u-
turn and stated that his initial statement to the effect that deceased Harjinder Pal was given beatings with the aid of swords, knives and daggers was
not correct and as such, there appears to be force in the argument of Mr. Satyen Vaidya, learned Senior Counsel that version put forth by the
complainant is required to be taken into consideration with utmost caution, especially, when none of other witnesses associated by the Investigating
Agency fully corroborated the version put forth by the complainant.
8. It is not in dispute that after preliminary inquiry, police had filed an application under Section 169 Cr.PC seeking discharge of present bail petitioner,
whose presence on the spot was found to be highly doubtful. But as has been noticed herein above, complainant having noticed filing of application
under Section 169 Cr.PC got his fresh statement recorded on 5.5.2018, retracting from his earlier statement with regard to use of knives, swords and
daggers, but reiterated that present bail petitioner Vinay Dhawan was also present on the spot. Careful perusal of both the statements made on
7.5.2018 and 15.5.2018, otherwise nowhere suggests that present bail petitioner crushed deceased Harjinder Pal under the tyres of vehicle, because
he in both the statements has categorically stated that accused Ramesh Dhawan ran over the vehicle over the body of the deceased Harjinder Pal.
Medical evidence adduced on record clearly suggests that deceased Harjinder Pal died on account of crush injuries suffered by him. Even if version
put forth by all the witnesses associated by the Investigating Agency is presumed to be correct, in that situation also, there is nothing to suggest that
present bail petitioner played role, if any, in crushing the deceased Harjinder Pal, who admittedly died on account of injuries suffered by him on
account of his being crushed under the vehicle, which was allegedly being driven by the accused Ramesh Dhawan.
9. Needless to say, mere insertion of Section 34 IPC is not sufficient to hold the present bail petitioner guilty of having committed offence punishable
under Section 302 of IPC, rather prosecution in this regard is required to prove that the present bail petitioner alongwith other co-accused had come to
the spot with prior preparation and with an intent to kill the deceased, which evidence at this stage is lacking. See. Judgment passed by a coordinate
Bench of this Court in case titled Jeet Ram v. State of HP, Latest HLJ 2003 (HP) 23 .
10. Though aforesaid aspects of the matter are to be considered and decided by the court below on the basis of totality of evidence collected on
record by the Investigating Agency, but this Court having perused material available on record at this stage, sees no reason to let the bail petitioner
incarcerate in jail for an indefinite period, especially when challan stands filed in the competent court of law and nothing is required to be recovered
from the bail petitioner. Otherwise also, this Court was unable to lay its hand to any evidence led on record suggestive of the fact that in the event of
petitioner’s being enlarged on bail, he may flee from justice and temper with the evidence. Leaving everything aside, this Court is alive of the fact
that guilt, if any, of the bail petitioner is yet to be proved in accordance with law by the prosecution by leading cogent and convincing evidence and as
such, it would not be appropriate to curtail his freedom for an indefinite period.
11. Recently, the Hon’ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr,. decided on 6.2.2018,
has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is
believed to be innocent until found guilty. Hon’ble Apex Court further held that while considering prayer for grant of bail, it is important to
ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not
appearing when required by the investigating officer. Hon’ble Apex Court has further held that if an accused is not hiding from the investigating
officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an
appropriate case. The relevant paras of the aforesaid judgment are reproduced as under:
“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 investigations 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 first-time 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.
12. Needless to say object of the bail is to secure the attendance of the accused in the trial and 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. Otherwise, bail is not to be
withheld as a punishment. Otherwise also, normal rule is of bail and not jail. 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.
13. The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; held as under:-
“ The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive
nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial
when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to
be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to
time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases,
“necessity†is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any
person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his
liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the
question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial
punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been
convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson.â€
14. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218, The Hon’ble Apex Court has held as under:-
“ This Court in Sanjay Chandra v. CBI, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail,
had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial
when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is
deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive or preventive. This Court sounded a
caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of
disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him
to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against
conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the
interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining
the application of bail but it was not only the test or the factor and the grant or denial of such privilege, is regulated to a large extent by the facts and
circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21
of the Constitution was highlighted.â€
15. The Hon’ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496, 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;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
16. In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, 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 his furnishing personal bond in the
sum of Rs. 2,00,000/- with one local surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court Solan/Nalagarh,
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.
17. 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.
18. 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 petition stands accordingly disposed of.
Copy dasti.
