Surinder Alias Kaku vs State Of Himachal Pradesh on 8 September, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.1136 of 2017
Decided on: 8.9.2017

.

Surinder alias Kaku ………..Petitioner
Versus
State of Himachal Pradesh ……….Respondent

Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioner : Mr. Divya Raj Singh, Advocate.

For the Respondent : Mr. P.M. Negi, Additional Advocate
General.

Sandeep Sharma, Judge (oral):

By way of instant petition, a prayer has been made on

behalf of the bail petitioner for grant of bail in case FIR No.35/17 dated

23.5.2017, under Section 376 (1) IPC, registered at Police Station

Chintpurni, District Una, H.P.

2. Sequel to order dated 29.8.2017, ASI Sanjay Kumar, P.S.

Chintpurni, District Una, H.P., has come present along with records.

Record perused and returned. Mr. P.M. Negi, learned Additional

Advocate General, has also placed on record status report, which has

been prepared on the basis of record of investigating agency.

1

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

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2

3. Perusal of report/record suggests that aforesaid FIR came to

be registered against the bail petitioner at the behest of the complainant

.

namely Rajeev Kumar, who happened to be brother in law of the

prosecutrix. Complainant alleged that the bail petitioner sexually

assaulted the prosecutrix on the assurance that he would be marrying her

in near future. Since bail petitioner refused to marry the prosecutrix, she

lodged the aforesaid complaint against the bail petitioner through her

brother in law.

4. While referring to the status report, Mr. Divya Raj Singh,

learned counsel representing the bail petitioner forcefully contended that

the prosecutrix is a widow aged about 44 years and as such, keeping in

view the status report submitted by the Investigating Agency, it can be

safely inferred that physical relations, if any, were made by the bail

petitioner with the consent of the prosecutrix.

5. Though, aforesaid aspect of consent, if any, on behalf of the

prosecutrix is to be determined and examined by the court below on the

basis of evidence adduced on record by the prosecution but this Court

after having carefully perused the record/status report finds substantial

force in the aforesaid argument of learned counsel for the bail petitioner

and sees no reason to keep the said petitioner in custody for indefinite

period, especially when investigation in the case is complete. It is evident

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from the record of investigation/status report that the prosecutrix and bail

petitioner are known to each other and they have been meeting each

.

other for last one year and during this period, no complaint whatsoever

was ever made by the prosecutrix alleging therein sexual assault

committed by the bail petitioner against her wishes.

6. Mr. P.M. Negi, learned Additional Advocate General, on

instructions, fairly stated that the investigation in the case is complete and

challan stands filed in the competent court of law and as such, there is no

requirement of custodial interrogation of the bail petitioner. Mr. further

contended that at this stage investigation agency has no objection, in

case bail petitioner is released on bail subject to the condition that he

shall make himself available for trial as and when required/called.

7. Needless to say object of the bail is to secure the

attendance of the accused in the trial and 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.

Otherwise, bail is not to be withheld as a punishment. Otherwise also,

normal rule is of bail and not jail. 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.

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Petitioner is local resident of District Kullu, and he shall remain available to

face the trial and to undergo imprisonment, if any, imposed upon him.

.

8. The Hon’ble Apex Court in Prasanta Kumar Sarkar v. 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.

9. In view of the aforesaid discussion, petitioner has carved out

a case for grant of bail. Accordingly, the petition is allowed and the

petitioner is ordered to be released on bail in case FIR No.35/17 dated

23.5.2017, under Section 376 (1) IPC, registered at Police Station

Chintpurni, District Una, H.P., on his furnishing personal bonds in the sum of

Rs.50,000/- with one surety in the like amount to the satisfaction of learned

trial Court with following conditions:

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

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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 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.

10. It is clarified that if the petitioner misuses his liberty or violates

any of the conditions imposed upon him, the investigating agency shall

be free to move this Court for cancellation of the bail.

11. 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 this application alone.

The bail petition stands accordingly disposed of.

Copy dasti.

8th September, 2017 (Sandeep Sharma),
manjit Judge

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