Kuldeep Chand vs State Of Himachal Pradesh on 22 August, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 950 of 2017
Decided on August 22, 2017
__

.
Kuldeep Chand … Petitioner

Versus
State of Himachal Pradesh Respondent
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Coram:

Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1

For the petitioner : Mr. Rajesh Mandhotra, Advocate.

For the respondent :
M.L. Chauhan, Additional Advocate
General with Mr. R.K. Sharma,
Deputy Advocate General.
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Sandeep Sharma, Judge (oral):

By way of instant application filed under Section 439

CrPC, prayer has been made for grant of bail in case FIR No.

127/17 dated 20.5.217 under Sections 376, 511, 354 and 323

IPC, registered with Police Station, Nagrota Bagwan, District

Kangra, Himachal Pradesh.

2. Sequel to order dated 18.7.2017, ASI Leela Dhar, PS

Nagrota Bagwan, District Kangra, HP, has come present with the

record. Mr. M.L. Chauhan, learned Additional Advocate General,

has also placed on record status report prepared on the basis of

investigation carried out by the investigating agency.

3. Perusal of record/ status report suggests that

aforesaid FIR came to be registered against the bail petitioner,

under Sections 376, 511, 354 and 323 IPC, at the behest of the

complainant, who alleged that the bail petitioner, who otherwise is

1
Whether the reporters of the local papers may be allowed to see the judgment?

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related to the complainant, made an attempt to kill and sexually

assault her on 20.5.2017 at 9.15 AM. Bail Petitioner, is in custody

since 20.5.2017 i.e. for the last more than three months.

.

4. Mr. M.L. Chauhan, learned Additional Advocate

General, on the instructions having been received from ASI Leela

Dhar, states that the investigation in the case is complete and

Challan stands filed in the competent Court of law. Mr. Chauhan,

fairly conceded that nothing is required to be recovered from the

bail petitioner. However, Mr. Chauhan, contended that keeping in

view the gravity of offence, allegedly committed by the petitioner,

he is not entitled to bail and there is every possibility that the

petitioner, after being enlarged on bail, may tamper with the

evidence collected by the prosecution.

5. This Court, after having carefully perused

record/status report, finds substantial force in the arguments of

Mr. Rajesh Mandhotra, learned counsel representing the bail

petitioner that there is no evidence on record made available by

the prosecution, suggestive of the fact that bail petitioner

committed offence under Section 376 IPC. Moreover, it clearly

emerges from the record that investigating agency has already

dropped Section 307 IPC, as there was no evidence suggestive of

the fact that an attempt to murder was made by the bail

petitioner. True it is, that evidence on record indicates towards

offence, if any, allegedly committed by the bail petitioner under

Section 511 IPC, but, keeping in view the fact that matter is

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pending trial before the trial Court, this Court sees no reason to

keep the petitioner in custody for indefinite period.

6. Otherwise also, normal rule is of bail and not jail.

.

Apart from above, 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. Petitioner is local resident of place mentioned in the

application and he shall remain available to face the trial and to

undergo imprisonment, if any, imposed upon him.

7. The Apex Court in Prasanta Kumar Sarkar versus

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.

8. In view of above, the petition is allowed and the

petitioner is ordered to be enlarged on bail in aforesaid FIR,

subject to furnishing personal bonds in the sum of `50,000 with

one surety in the like amount to the satisfaction of concerned

Chief Judicial Magistrate, with following conditions:

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(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.

9. 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.

10. 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 the this petition alone.

The petition stand accordingly disposed of.

Copy dasti.

(Sandeep Sharma)

Judge
August 22, 2017
(vikrant)

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