Punjab-Haryana High Court
Shrikant vs State Of Haryana on 19 April, 2021212 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M No.9165 of 2021
Date of decision: 19.04.2021
Shrikant …. Petitioner
Versus
State of Haryana …. Respondent
Coram: Hon’ble Mr. Justice B.S. Walia
Present : Mr. Himanshu Sharma, Advocate for the petitioner.
Mr. Krishan K. Chahal, Addl. AG, Haryana.
***
B.S. Walia, J. (VC)
1. Case is being taken up for hearing through Video
Conferencing due to Covid-19pandemic.
2. Prayer in the petition under Section 438 Cr.P.C. is for
grant of anticipatory bail to the petitioner in case FIR No.402 dated
15.10.2020, registered under Sections 147, 149, 302, 323, 120-B IPC
and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, at Police Station City Rewari, District
Rewari.
3. On 26.03.2021, the following order was passed:-
1. Case is being taken up for hearing through Video
Conferencing due to Covid-19 pandemic.
2. Prayer in the petition under Section 438 Cr.P.C.,
is for grant of anticipatory bail to the petitioner, in
case FIR No.402 dated 15.10.2020, registered under
Sections 147, 149, 302, 323, 120-B IPC and Section
3(2) (v) of Scheduled Castes and Scheduled Tribes
(Prevention of
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Atrocities) Act, at Police Station City Rewari,
District Rewari.
3. Learned counsel contends that the FIR was
registered on the basis of complaint made by
complainant-Maman son of Sohan Lal, alleging
therein that he was earning his livelihood by plying
a Rehriselling eggs along with his son-Himanshu at
Suncity, Rewari, and on 12.10.2020, he was selling
eggs along with his son-Himanshu, when his cousin,
Rajesh son of Jagdish, working as a Home Guard at
Police Station Bhadwas, came to see him and at
around 07:00 hours, two persons came on a
Mahindra Tractor and inquired about the rate of
eggs from him, whereupon, he told them that the
rate of boiled egg was Rs.10/- and Rs. 7 / – for a
non-boiled egg. Thereafter aforesaid two persons
said that if you want to sell each egg @ Rs.5/- then
give it, but he refused with folded hands, whereupon,
both persons started abusing him and said that they
would come later and after about 10 minutes, two
vehicles, with 10/15 persons arrived and started
beating him, his son and also gave good beating to
his cousin-Rajesh by inflicting leg and punch blows,
that on hearing noise, Pratap Singh son of Lal
Chand and many others came from the village and
consoled them, the complainant party also felt that
they had not received serious injuries and on the
next day, Rajesh left for night duty but on
14.10.2020 i.e. two days after the incident, Rajesh
felt acute problem in the stomach, whereupon, he
was taken to Trauma Hospital, Rewari, from where,
he was shifted to Vedanta Hospital but died.
Learned counsel contends that the case set up by the
prosecution before the learned Addl. Sessions Judge
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Rewari, was that during investigation it was learnt
from the disclosure statement of co accused Deepak,
Rakesh and Vinod, that the petitioner accompanied
them to the place of incident and inflicted injuries
upon persons present at the egg stall. Learned
counsel contends that in view of the name of the
petitioner not having been mentioned in the FIR and
the petitioner having been implicated solely on the
basis of disclosure statement of co-accused, the
petitioner was entitled to grant of pre-arrest bail in
view of the law laid down by Hon’ble the Supreme
Court in Haricharan Kurmi versus State of Bihar’,
1964 AIR (SC) 1184.Relevant extract of the
aforementioned decision is reproduced as under:-
“13. As we have already indicated, this
question has been considered on several
occasions by judicial decisions and it has
been consistently held that a confession
cannot be treated as evidence which is
substantive evidence against a co-accused
person. In dealing with a criminal case where
the prosecution relies upon the confession of
one accused person against other accused
person, the proper approach to adopt is to
consider the other evidence against such an
accused person, and if the said evidence
appears to be satisfactory and the court is
inclined to hold that the said evidence may
sustain the charge framed against the said
accused person, the court turns to the
confession with a view to assure itself that the
conclusion which it is inclined to draw from
the other evidence is right. As was observed
by Sir Lawrence Jenkins in Emperor v. Lalit
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Mohan Chockerburty, ILR 38 Calcutta 559 at
p. 588 a confession can only be used to “lend
assurance to other evidence against a co-
accused”.
In PeriyaswamiMoopan v. Emperor. ILR 54
Madras 75 at p. 77 Reilly, J., observed that
the provision of Section 30 goes not further
than this, “where there is evidence against the
co-accused sufficient, “if believed, to support
his conviction, then the kind of confession
described in Section 30 may be thrown into
the scale as a additional reason for believing
that evidence.” In BhuboniSahu v. The King,
76 Ind App. 147 at p. 155 the Privy Council
has expressed the same view. Sir. John
Beaumont who spoke for the Board, observed
that ” a confession of a co-accused is
obviously evidence of a very weak type. It
does not indeed come within the definition of
“evidence” contained in Section 3 of the
Evidence Act. It is not required to be give on
oath, nor in the presence of the accused, and
it cannot be tested by cross examination. It is
a much weaker type of evidence than the
evidence of an approver, which is not subject
to any of those infirmities. Section 30,
however, provides that the Court may take the
confession into consideration and thereby, no
doubt, makes it evidence on which the court
may act; but the section does not say that the
confession is to amount to proof. Clearly
there must be other evidence. The confession
is only one element in the consideration of all
the facts proved in the case; it can be put into
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the scale and weighed with the other
evidence.” It would be noticed that as a result
of the provisions contained in Section 30, the
confession has no doubt to be regarded as
amounting to evidence in a general way.
Because whatever is considered by the Court
is evidence; circumstances which are consider
by the court as well as probabilities do
amount to evidence in that generic sense.
Thus, though confession may be regarded as
evidence in that generic sense because of the
provisions of Section 30, the fact remains that
is not evidence as defined by Section 3 of the
Act. The result, therefore, is that in dealing
with a case against an accused person, the
court cannot start with the confession of co-
accused person; it must begin with other
evidence adduced by the prosecution and
after it has formed its opinion with regard to
the quality and effect of the said evidence,
then it is permissible to turn to the confession
in order to receive assurance to the
conclusion of guilt which the judicial mind is
about to reach on the said other evidence.
That, briefly stated, is the effect of the
provisions contained is Section 30. The same
view has been expressed by this Court in
Kashmira Singh v. State of Madhya Pradesh,
1952 SCR 526 where the decision of the Privy
Council in BhuboniSahu’s case, has been
cited with approval. ”
Learned Counsel for the petitioner
further contended that as per disclosure
statement of co accused Rakesh, he, Amit,
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Deepak, Sonu @ Anil, Vinod son of
Munshiram, Vinod son of Sher Singh, Satpal
son of Rampal and the petitioner Shrikant
went in two vehicles to the egg stall and gave
slap, fist and kick blows to three persons
present there and about who Sonu had
signalled but out of said accused, Vinod son
of Munshiram, Anil Kumar son of Braham
Prakash, Rakesh son of Roshan Lal, Deepak
Yadav son of Devanand and Devanand son of
Balbir Singh were arrested and subjected to
test identification parade before a Magistrate
but were not identified by the complainant
Mamman or his son Himanshu and were
released on bail u/s 439 Cr.P.C. and further
that as per investigation conducted by Mohd.
Jamal, H.P.S. Deputy Superintendent of
Police, Rewari, Vinod son of Sher Singh, Amit
son of Devanand, Sonu @ Satpal son of
Rampal were found innocent on 07.12.2020.
Learned Counsel contended that in the
circumstances the disclosure statement of co
accused Rakesh, Deepak and Vinod were of
no evidentiary value.
Per contra, learned Addl. AG, Haryana,
contended that custody of the petitioner was
required for test identification paradein terms
of Section 54-A Cr.P.C., and in the eventuality
of the petitioner not being identified by the
complainant/his son, he could be released on
regular bail.
Per contra learned counsel for the petitioner
relies upon the decision of Hon’ble the
Division Bench of Gujarat High Court in
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Abbas Hasam Ghanchi vs. State of Gujarat
1993 CLR (Gujarat) 472, to contend that in
the FIR except for general allegations
regarding 10/15 persons having given beating
to the complainant, his son and Rajesh, no
other particulars had been furnished with
regard to physical appearance, or description
regarding height, structure, complexion of the
skin, shape of face, nose, eyes, forehead,
voice, clothes and/or any other distinct
features by way of any injury marks, if any,
etc. and on the basis of which, such
unidentified suspect could be reasonably
spotted, arrested and ultimately put up for test
identification by the Investigation Agency and
what was stated in the FIR by the complainant
was that if the accused persons were brought
before him and his son, they could identify
them.
Learned counsel contends that the same
implies that for the purpose of identification
of an unidentified accused, the petitioner was
required to be arrested and produced before
alleged eye witnesses for the purposes of
ascertaining and getting ascertained his
identity solely on the basis of disclosure
statement by co-accused without any
identification/description having been given
by the complainant or his son and despite the
fact that Vinod son of Munshiram, Anil
Kumar son of Braham Prakash, Rakesh son of
Roshan Lal, Deepak Yadav son of Devanand
and Devanand sonof Balbir Singh were
arrested and subjected to test identification
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parade before a Magistrate but were not
identified by the complainant Mamman or his
son Himanshu and were released on bail u/s
439 Cr.P.C. and further that as per
investigation conducted by Mohd. Jamal,
H.P.S. Deputy Superintendent of Police,
Rewari, Vinod son of Sher Singh, Amit son of
Devanand, Sonu @ Satpal son of Rampal
were found innocent on 07.12.2020. Learned
Counsel contended that in the circumstances
the disclosure statements of co accused
Rakesh, Deepak and Vinod were of no
evidentiary value.Learned counsel reiterates
that as per settled law, implication as accused
solely on the basis of disclosure statement,
which is of no evidentiary value, entitles the
petitioner to grant of pre-arrest bail. Learned
counsel contends that apart from the
disclosure statement there is no other
material to connect the petitioner with the
alleged commission of offence besides there is
no other case registered against the
petitioner, he will not flee from justice nor
influence witnesses, besides is ready and
willing to join investigation and fully
cooperate in the investigation as and when
required by the police.
I have considered the submissions of
learned counsel for the parties and after taking into
account all aspects of the matter namely that apart
from the statement of co-accused, Rakesh, who
disclosed that he along with Amit, Deepak, Sonu
alias Anil, Vinod son of Munshi Ram, Vinod son of
Sher Singh, Satpal son of Ram Pal and Shri Kant,
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went to the rehari of the complainant and gave slap
and fist blows to three persons present there and
thereafter came back to their houses there is no
other material to connect the petitioner with the
commission of the offence. On the other hand, as per
disclosure statement of Vinod, it was Amit, Deepak,
Rakesh and Sonu @ Anil who gave beating whereas
as per disclosure statement of Deepak, he, his
brother Amit, Rakesh son of Roshanlal, Vinod son of
Munshiram, Vinod son of Sher Singh, Satpal son of
Rampal, Anil @ Sonu and the petitioner gave
beating to two persons pointed out by Anil @ Sonu
while Anil @ Sonu in his statement disclosed that
Amit, Deepak and Vinod gave the beating. Moreover
as has been noted above Vinod son of Munshiram,
Anil Kumar son of Braham Prakash, Rakesh son of
Roshan Lal, Deepak Yadav son of Devanand and
Devanand son of Balbir Singh were arrested and
subjected to test identification parade before a
Magistrate but were not identified by the
complainant Mamman or his son Himanshu and
were released on bail u/s 439 Cr.P.C. and further
that as per investigation conducted by Mohd. Jamal,
H.P.S. Deputy Superintendent of Police, Rewari,
Vinod son of Sher Singh, Amit son of Devanand,
Sonu @ Satpal son of Rampal were found innocent
on 07.12.2020. Besides no injury to the deceased is
attributed to the petitioner nor the petitioner is
alleged to have carried any weapon. Besides, in
view of the averments in the FIR, the question of
applicability of Section 302 IPC, would be a
debatable issue before the trial Court. Further,
although bar of Section 18 of SC, ST Act has been
taken but the same has not been pressed. Moreover,
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in the absence of there being any allegation that the
offence was committed on the ground that the
victims were members of a Scheduled Caste or
Scheduled Tribe, the bar u/s 18 of the SC/ST Act
would not apply and the petition u/s 438 Cr.P.C.
would be maintainable. Reference in this context is
made to the decision of Hon’ble the Supreme Court
in Dinesh @ Buddha vs State of Rajasthan (2006) 3
SCC 771 as also Khumman Singh vs The State of
Madhya Pradesh (2019) SCC Online SC 1104 as
per which it has been held that for Section 3(2)(v) of
the SC/ ST Act to apply it is mandatory for the
offence to have been committed against a person on
the ground that such person is a member of a SC /
ST. It is also not the stand of the State that the
petitioner is likely to flee from justice or influence
the witnesses. Moreover, the petitioner has
undertaken to join investigation and fully cooperate
in the same as and when required by the police.
Accordingly, in the light of the position noted
above, the petitioner is directed to join investigation
and fully cooperate with the police. However, in the
event of arrest, the petitioner be released on ad
interim pre-arrest bail subject to his furnishing bail
bonds to the satisfaction of the Arresting /
Investigating Officer till the next date of hearing.
The petitioner shall abide by the conditions
envisaged under Section 438(2) Cr.P.C., failing
which, the interim protection granted to the
petitioner, shall stand vacated.
List on 19.04.2021.”
4. Today, learned counsel for the petitioner contends that
pursuant to the order of this Court dated 26.03.2021, the petitioner
joined investigation, fully cooperated in the same, was released on ad-
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interim pre-arrest bail and that his custodial interrogation is not
required.
5. Learned Addl. A.G., Haryana, on instructions from SI
Sanjay Kumar, confirms that pursuant to the order of this Court dated
26.03.2021, the petitioner joined investigation, cooperated in the same,
was released on ad-interim pre-arrest bail and that his custodial
interrogation is not required.
6. In view of the statement of learned Addl. A.G., Haryana,
order 26.03.2021 passed by this Court, is made absolute. The petitioner
shall abide by the terms and conditions enumerated in Section 438(2)
Cr.P.C.
7. Petition stands disposed of in the aforementioned terms.
(B.S. Walia)
Judge
April 19, 2021
‘Rajneesh/Amit’
Whether speaking/reasoned: Yes/No.
Whether reportable : Yes/No.
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