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KULDEEP TIWARI, J. (ORAL) –

1. Through the instant petition, the petitioner craves for indulgence of this Court for his being enlarged on regular bail, in case FIR No.218 dated 22.08.2023, under Sections 148, 149, 307, 160, 323, 325, 201 of the IPC, and under Sections 25/27/54/59 of the Arms Act, 1959, registered at Police Station Civil Lines Rohtak, District Rohtak.

ALLEGATIONS AGAINST THE PETITIONER

2. The prosecution agency was set into motion on a complaint made by ASI Ram Niwas. According to whom on 22.08.2023, when he was on patrolling duty at about 2:00 p.m. he saw that 18-20 boys of young age, having dandas, lathis and pistols in their hands, fighting with each other, on the road. The patrolling police party reached at the spot, and on seeing them, all of them fled from the spot. Thereupon, it transpired from a secret information that those boys were, one Aman Dahiya of village Barona, with 8-10 boys having sticks, clubs and pistols, and of the other group were Vishesh alias Chhotu of village Chuliana, Rohan of village Roorkee, Ankit alias Tinda of village Bhagwati Pur and Hrithik alias Chhota of village Nonand, and besides them, there were 5-6 other boys who were also carrying sticks, clubs and pistols in their hand. It further revealed that in this incident Vishesh alias Chhotu was injured with a gunshot, and the boys of the other party has also sustained injury. On basis of above, the instant FIR was registered.

SUBMISSIONS OF LEARNED COUNSEL FOR THE PETITIONER

3. The learned counsel for the petitioner, in his asking for the hereinabove extracted relief, submits that the petitioner has not been named in the instant FIR. He has been nominated as an accused only on the basis of a disclosure statement of a co-accused, and no specific role has been attributed to him.

4. He further submits that the pistol, magazine and five live cartridges, which are shown to have been effected from the present petitioner, has infact been falsely implanted upon him on dated 30.08.2023.

5. He over and above submits that the said recovery was shown to have been effected from the field of one Raja son of Karan, resident of Madodi Jattan, however, neither he has been made as a witnesses to the said recovery, nor any independent witness was joined at that time.

6. He in addition submits that the co-accused of the petitioner, i.e. Vishesh alias Chhotu vide orders 03.04.2024 in CRM-M-3219-2024, and Randeep vide order dated 04.07.2024 in CRM-M-31407-2024, have been granted the benefit of anticipatory bail by this Court, whereas, other co-accused, Rahul alias Dhilla, Aatish alias Raja, Ankit alias Tida, Aman Dahiya and Rohan have been granted bail by the court below.

7. Finally, he submits that the petitioner has suffered incarceration of about 01 year, as on today, but the charges are yet to be framed.

SUBMISSIONS OF THE LEARNED STATE COUNSEL

8. Per contra, the learned State counsel, has vociferously opposed the grant of regular bail to the petitioner, and submits that in fact it was the petitioner who caused gunshot injury to Vishesh alias Chhotu and weapon of offence used in the crime was also got effected from the present petitioner.

9. He has also filed placed on record a custody certificate qua the petitioner, which reflects that the petitioner has suffered incarceration of 11 months and 24 days as on today, and he is shown to have been involved in one other criminal case of a similar nature.

10. Learned State counsel on instructions, imparted to him by the police official concerned, submits that after conclusion of the investigation, the final report under Section 173 Cr.P.C., has already been filed, but the charges are yet to be framed, and the prosecution has cited total 27 prosecution witnesses in the final report.

ANALYSIS

11. 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.

12. “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 back in 1978, in its landmark judgment titled “State of Rajasthan V. 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.

13. 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.

14. 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 was no hard and fast rule and no inflexible principle governing 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.

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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 bond would effect that end."

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.”

15. 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 bifocal interests of justice - to the individual involved and society affected.

11. We must weight the contrary factors to answer the test the reasonableness, subject to the need for securing the presence 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 acquittal pertinence to a bail plea when the appeal before this 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.”

16. 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.

17. The reason for forming the above inference emanates from the factum that:- (i) though the petitioner has named in the FIR but no specific role is attributed to the present petitioner; (ii) the weapon of offence which was recovered from the present petitioner is yet to be co-related with the injury suffered by the injured, Vishesh alias Chhotu, by the prosecution by leading evidence before the learned trial court concerned; (iii) it is not under dispute that the petitioner has suffered incarceration of about one year, i.e. 11 months and 24 days as on today and the trial is yet to begin as no charges have been framed till date and the prosecution has cited 27 prosecution witnesses in the final report, therefore, conclusion of the trial would take a long time, no fruitful purpose would be served by keeping the petitioner behind the bars; (iv) it is also in dispute that the victim is now hail and hearty.

FINAL ORDER

18. Considering the hereinabove made discussion, this Court deems it fit and 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 released on bail on furnishing of bail bond and surety bond to the satisfaction of concerned Chief Judicial Magistrate/trial Court/Duty Magistrate.

19. 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.

20. However, anything observed here-in-above shall have no effect on the merits of the trial, and is only meant for deciding the present petition.

21. All pending application(s) stand disposed of accordingly.

Petition allowed.

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