judicial discretion

Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia, J., addressed a bail application for release of the petitioner arrested under Sections 420, 467, 468, 471 and 120-B of the penal Code, 1860.

The present application for bail states that the petitioner is innocent and has been falsely implicated. It has also been stated that he is neither in a position to tamper with the evidence nor in a position to flee from justice.

According to the police report, prosecution story which had led to the filing of FIR under the above-mentioned Sections was that,

“Promila Devi, Pradhan, Gram Panchayat Bhadarnu/complainant, got registered a complaint against the petitioner, alleging therein that the Department of NSFDC had imparted training for fruit processing to the women belonging to the Scheduled Caste. As per the said training programme, a sum of Rs. 5,000 towards Kaushal Vikaas Bhatta, per women, was to be paid to them; however, only Rs. 2,000 per women by way of Cheque was paid to them. As per the allegations,  Him. Con. Ltd. was found to have shown another training programme having been organized at Karsog, however, which as a matter of fact, was not at all organized. Consequently, FIR under Sections 420, 467, 468, 471 and 120-B IPC came to be registered against the petitioner.”

Additional Advocate Generals, Shiv Pal Manhans and P.K. Bhatti, contended that the petitioner was found involved in non-cognizable offences and in the case at this stage he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice.

High Court on noting the facts and circumstances of the case stated that, petitioner being the resident of the place and joining the investigation is neither in a position to tamper with the prosecution nor to flee from justice.

Thus, the Court held that the present is a fit case where the judicial discretion to admit the petitioner on bail, in the event of arrest, is required to be exercised in his favour. Bail granted subject to conditions. [Bhumi Nand v. State of H.P., 2019 SCC OnLine HP 2167, decided on 16-12-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia, J. granted bail to a 22 year old student for an offence committed under Section 21 of the Narcotic Drugs and Psychotropic Substances Act. As per the averments made by him, the petitioner claimed to be innocent and that he was falsely implicated for the case. 

As per the prosecution, the petitioner was nabbed by the police on 25-08-2019. Upon being checked, there was a brownish substance found in his bag, which was heroin. After the FIR was registered, the petitioner was arrested and during the course of interrogation and investigation, it was revealed that he was a drug addict. The police had sent the sample of contraband for forensic analysis and the report revealed that the sample was of Diacetylmorphine (Heroin). Therefore, the prosecution prayed that the bail application of the petitioner should be dismissed, as the petitioner was found involved in a serious crime. The petitioner further argued that he was not in a position to tamper with the prosecution’s evidence nor was in a position to flee from justice. He also argued that no fruitful purpose will be served by keeping him behind the bars for an unlimited period especially when the investigation is complete. 

The Court, after considering that the petitioner was only 22 years old, and was only a student, and also considering the fact that the petitioner was a drug addict and he had the contraband for his own use, there was a possibility that the petitioner may reform in case he would be enlarged on bail. Further, he was a permanent resident of District Kullu, Himachal Pradesh, and was not in a position to tamper with the prosecution evidence nor was in a position to flee from justice. The Court found that the case was a fit case where the judicial discretion to admit the petitioner on bail must be required to be exercised in his favour. The petition was allowed and he was released on bail subject to his furnishing personal bond in the sum of twenty thousand rupees with one surety in the like amount to the satisfaction of the learned Trial Court. [Vikas Sagar v. State of Himachal Pradesh, 2019 SCC OnLine HP 1524, decided on 16-09-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench comprising of Chander Bhusan Barowalia, J. decided a criminal petition filed under Section 438 CrPC, wherein the petitioner was granted anticipatory bail considering the facts and circumstances of the case.

The petitioner was accused of committing offence punishable under Section 376 IPC. It was alleged that on the pretext of marrying the prosecutrix, the petitioner harassed her physically and mentally. Learned counsel for the petitioner submitted that the FIR was a result of some confusion that the petitioner was marrying another lady, however, such fact was denied by the petitioner. In fact, subsequently, the petitioner had married the prosecutrix. Counsel prayed that petitioner’s bail application may be allowed and he may be granted anticipatory bail.

The High Court perused the record and found that the fact of marriage between the petitioner and the prosecutrix was evident from the marriage certificate produced before the Court. Further it was observed that the petitioner was employed in the Indian Army; he was joining and cooperating in the investigation; and was neither in a position to flee from justice, nor in a position to tamper with evidence. Considering all these facts and circumstances, the Court held that this was a fit case to exercise judicial discretion in favour of the petitioner. Accordingly, the petition was allowed and the petitioner was granted anticipatory bail, subject to the conditions imposed. [Rajender Kumar v. State of H.P., 2018 SCC OnLine HP 357, dated 2.4.2018]

 

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench comprising of Chander Bhusan Barowalia, J., decided a criminal petition filed under Section 438 of CrPC, wherein the prayer to grant anticipatory bail to the petitioners was denied holding that it would affect the investigation.

An FIR was registered against the petitioners under Sections 20 and 29 of the NDPS Act. The petitioners were named in the case by another accused Saleem, who was found in possession of the commercial quantity of contraband substance ‘charas’. The petitioners were absconding since arrest of the said Saleem. The petitioners prayed that they be granted anticipatory bail while the prosecution submitted that the investigation is still at early stages and if the petitioners are enlarged on bail, it might affect the investigation.

The High Court, while discussing the parameters which need to be considered while dealing with anticipatory bail, held that one of the parameters was that balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation; and there should be prevention of harassment, humiliation and unjustified detention of the accused. The Court found that the investigation was at the initial stages and if at that stage the petitioners were enlarged on bail, the investigation would be hampered and there were chances that the petitioners would tamper with the prosecution evidence. The Court also took into account the seriousness of the offence, the fact that the petitioners were likely to flee from justice and the quantity of the recovered contraband was also found to be more than one kilogram, which was a commercial quantity. Thus, the Court was of the view that there was every likelihood that in case the petitioners were enlarged on bail it would effect free, fair and full investigation of the case, thus the balance was in favor of free, fair and full investigation and judicial discretion to admit the petitioners on bail could not be exercised in their favor. Accordingly, the bail was denied and the petition was dismissed. [Amru Ram v. State of H.P., 2018 SCC OnLine HP 161, order dated 27.2.2018]