Full Text
HIGH COURT OF DELHI
Date of Decision: 03.02.2023
SATISH ..... Petitioner
Through: Mr. Satyam Thareja, DHCLSC with Mr. Nishant Sharma, Ms. Suchita Kaintum, Advs.
Through: Mr. Aashneet Singh, APP for State with Insp. Jaiprakash
Nagar
JUDGMENT
1. This is an application for grant of bail in FIR No. 315/2020 dated 19.07.2020 u/s 302/34 IPC registered at PS Greater Kailash-I.
2. As per the complaint, Mr. Shambu Sharma, the father of the deceased alleged that his son Sumit, aged 14 years was working at Baba Dairy in Jamroodpur village.
3. On 18.07.2020 at around 10:00 PM, there was an altercation with Sudhir, wherein it is alleged that Sudhir forcefully took about Rs. 350/- from the complainant. It is stated that the complainant informed the same to his son (the deceased) due to which altercation took place.
4. Subsequently, the complainant got to know that his son i.e., the deceased Sumit has been hit and suffered injuries and he is at All India Institute of Medical Sciences (AIIMS).
5. When the complainant went to AIIMS, he was informed that his son had passed away.
6. The FIR states that it is Sudhir and his accomplice, i.e. the applicant are responsible for the death of his son.
7. Mr. Thareja, learned counsel for the applicant in support of the bail application states that there is no motive attributed to the applicant. He states that the applicant has solely been arrested on the basis of hearsay statement and there is no eye witness to the incident. The blood-stained clothes of the applicant are attributed to the fact that it was the applicant who took the deceased to AIIMS.
8. Mr. Singh, learned APP has handed over the status report today in Court which is taken on record. He has opposed to the grant of bail.
9. In the present case, the statement of PW-1 i.e. Arjun states as under: “....I saw both the accused persons Sudhir and other accused, who are present in the court today and witness correctly identified both the accused persons were present at my dairy. I further saw that Sumit was lying at the dairy on the takhat and blood was oozing out from his head. Both the accused persons were standing near Sumit and they were returning from my dairy after beating Sumit” “....It is correct that when my father confronted the accused persons at the dairy Jamroodpur after arrival on my call, accused Sudhir stated to my father Accused Sudhir ne kaha ki Sumit mujhse or mere dost Satish se jhagra kar reha tha, isliye humne isko sar mein maar diya tha.”
10. The statement of PW-1 shows that he saw Sudhir and the applicant near the place where the deceased victim was lying at the dairy on the takhat ARORA and blood was oozing out from his head.
11. The accused Sudhir had also stated that he and the applicant hit the deceased victim. The statement also states that Sudhir and the applicant were friends.
12. Mr. Thareja has relied upon the judgment of „Kashmira Singh vs. State of Madhya Pradesh‟ (1952) 1 SCC 275 and more particularly paras 12 and 13 to argue that the statement of a co-accused is that of an accomplice and has to be read with caution and circumspection.
13. Paras 12 and 13 read as under:
14. He states that in the present case, the statement of Sudhir is that of a co-accused and cannot be blindly relied upon. In addition, the statement of Arjun is hearsay evidence.
15. I am unable to agree.
16. The parameters of grant of bail are different from that of conviction as at the stage of granting bail only prima facie evidence statements have to be seen.
17. In Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598, the Hon‟ble Supreme Court highlighted the need to see the contextual facts of the matter before granting bail in heinous crimes. It observed:
2. While liberty of an individual is precious and there should always be an all-round effort on the part of law courts to protect such liberties of individuals — but this protection can be made available to the deserving ones only since the term protection cannot by itself be termed to be absolute in any and every situation but stands qualified depending upon the exigencies of the situation. It is on this perspective, that in the event of there being committal of a heinous crime, it is the society that needs protection from these elements since the latter are having the capability of spreading a reign of terror so as to disrupt the life and the tranquillity of the people in the society. The protection thus is to be allowed upon proper circumspection depending upon the fact situation of the matter. It is in this context the observations of this Court in Shahzad Hasan Khan v. Ishtiaq Hasan Khan [(1987) 2 SCC 684: 1987 SCC (Cri) 415] seem to be rather apposite. This Court observed in Shahzad Hasan Khan [(1987) 2 SCC 684: 1987 SCC (Cri) 415] as below: (SCC pp. 690-91, para 6) “Had the learned Judge granted time to the complainant for filing counter-affidavit, correct facts would have been placed before the court and it could have been pointed out that apart from the inherent danger of tampering with or intimidating witnesses and aborting the case, there was also the danger to the life of the main witnesses or to the life of the ARORA accused being endangered as experience of life has shown to the members of the profession and the judiciary, and in that event, the learned Judge would have been in a better position to ascertain facts to act judiciously. No doubt liberty of a citizen must be zealously safeguarded by court, nonetheless when a person is accused of a serious offence like murder and his successive bail applications are rejected on merit there being prima facie material, the prosecution is entitled to place correct facts before the court. Liberty is to be secured through process of law, which is administered keeping in mind the interests of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution. Learned Judge was unduly influenced by the concept of liberty, disregarding the facts of the case.”
3. Grant of bail though being a discretionary order — but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always to be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail — more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.”
18. In the present case, the applicant and Sudhir were seen at the place of incident.
19. The incident occurred at around 01:00 AM and there is no justification forthcoming as to the reason and basis for the applicant to be present at the place of incident at 01:00 AM. In addition, the statement of Sudhir is against the applicant.
20. The judgment relied upon by the learned counsel for the applicant is ARORA at the stage of conviction and not at the stage of grant of bail.
21. In this view of the matter, I am not inclined to entertain the application and the same is dismissed.