Crmp(M) No. 1420 Of 2017 vs State Of Himachal Pradesh on 28 November, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M)’s No. 1420 and 1421 of 2017
Decided on November 28, 2017
__

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1. CrMP(M) No. 1420 of 2017

Mahinder Pal Singh alias Raja … Petitioner

Versus

State of Himachal Pradesh Respondent

2. CrMP(M) No. 1421 of 2017
Ranjodh Singh alias Tony … Petitioner

Versus

State of Himachal Pradesh Respondent
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Coram:

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

For the petitioner(s) : Mr. Vijay Arora, Advocate.

For the respondent : Mr. P.M. Negi and Mr. M.L.

Chauhan, Additional Advocates
General with Mr. R.K. Sharma,
Deputy Advocate General .

Inspector Jasbir Singh, Police
Station Paonta Sahib, District
Sirmaur, Himachal Pradesh.

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Sandeep Sharma, Judge (oral):

Since both the bail petitions arise out of same FIR, these

were taken up together, for disposal by way of this common

judgment.

2. By way of instant bail petitions filed under Section 438

CrPC, prayer has been made for grant of pre-arrest bail in FIR No.

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

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480 of 2017 dated 10.11.2017, under Sections 342, 323, 506, 367,

377, 201, 147, 148, 149 IPC and Section 25 of the Arms Act,

registered at Police Station, Paonta Sahib, District Sirmaur,

.

Himachal Pradesh.

3. Before proceeding further, it may be noticed that

inadvertently, date of next hearing in the previous order was typed

as 28.12.2017 instead of 28.11.2017. However, the date was

correctly noted by the learned counsel for the petitioners as well

learned Additional Advocate General and matter was taken up

today only i.e. 28.11.2017.

4. Sequel to order dated 20.11.2017, Inspector Jasbir Singh

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 till date. Record perused and returned.

5. Careful perusal of the record/status report reveals that on

10.11.2017, complainant namely Jaswant Singh made a report at

Police Station, Paonta Sahib, District Sirmaur, alleging therein

that on 9.11.2017, he was asked by accused namely Parminder

Singh to accompany him. Since Parminder Singh was an old

acquaintance, Jaswant Singh went with him. Parminder Singh

took Jaswant Singh to the house of one of the co-accused namely

Ranjodh Singh alias Tony i.e. bail petitioner in CrMP(M) No. 1421

of 2017, where another person namely Mahinder Pal Singh (bail

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petitioner in CrMP(M) No. 1420 of 2017) was also present

alongwith one Golu Saini. Above named accused allegedly bolted

the room and windows, and thereafter gave thrashing to the

.

complainant on the pretext that he had joined some other gang. As

per complainant, he was not only given beatings but was also

threatened with dire consequences by Parminder Singh, who

showed him a pistol. Subsequently, complainant, in his statement

recorded under Section 164 CrPC, before the learned Magistrate

also disclosed that Parminder Singh, committed unnatural

intercourse with him on 9.11.2017, in the presence of other

accused, including present bail petitioners, as such, case came to

be registered against the accused under Section 377 IPC apart

from Sections 342, 323, 325, 506, 367, 201, 147, 148 and 149 IPC

and Section 25 of the Arms Act.

6. As per status report, accused namely Parminder Singh,

Gurjant Singh, Shamsher Singh and Mandeep Singh are in

custody. It also emerges from the record that the bail petition filed

by accused Parminder Singh has been already rejected by the

learned Additional Sessions Judge, Sirmaur at Nahan.

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

while inviting attention of this Court to the record/ status report,

vehemently argued that keeping in view the gravity of offence,

allegedly committed by the bail petitioners as well as other

accused, who are in custody, present bail petitions deserve to be

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dismissed and no leniency can be shown to the bail petitioners,

who are hardened criminals. Mr. Chauhan, learned Additional

Advocate General further contended that it clearly emerges from

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the record/ status report that the present bail petitioners are part

of a gang and they have been indulging in illegal activities in the

past also, as is evident from the fact that cases have been

registered against them. Mr. Chauhan, learned Additional

Advocate General, further contended that true it is that as per

medical evidence available on record, all the injuries except injury

No. 8 are simple in nature, but that can not be a ground to enlarge

the bail petitioners on bail, keeping in view the fact that they have

not only helped the main accused Parminder Singh in kidnapping

the complainant, rather, thereafter, they threatened him with dire

consequences and also gave him beatings. Lastly Mr. Chauhan,

learned Additional Advocate General, contended that in the event

of bail petitioners being enlarged on bail, there is every likelihood

of their tampering with the evidence/hampering the investigation,

as such instant bail petitions may be dismissed.

8. Mr. Vijay Arora, learned counsel representing the bail

petitioners, while refuting the aforesaid submissions, having been

made by the learned Additional Advocate General, strenuously

argued that no case is made out against the bail petitioners under

aforesaid provisions of law, as such, they are entitled to be

enlarged on bail. While inviting attention of this Court to the

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record/status report, Mr. Vijay Arora, learned counsel

representing the bail petitioners, contended that there is no

allegation of commission of offences under Section 377 IPC,

.

against the bail petitioners, rather, it has specifically come in the

statement of the complainant that the accused Parminder Singh

committed unnatural intercourse with him. Mr. Arora, learned

counsel representing the bail petitioners, contended that otherwise

also, perusal of the status report suggests that there is no specific

allegation of beatings against the bail petitioners, rather,

repeatedly the complainant has named Parminder Singh, Gurjant

Singh, Shamsher Singh and Mandeep Singh and there is only a

passing reference of the present bail petitioners. Mr. Arora,

learned counsel representing the bail petitioners, further

contended that his clients can not be implicated in the case merely

on the basis of their presence in the room, where complainant

was allegedly given beatings. Lastly, Mr. Arora, learned counsel

contended that bail petitioners have already joined investigation in

terms of order dated 20.11.2017 and at this stage, nothing is

required to be recovered from them and bail petitioners shall

always be available for investigation and trial, and there is no

likelihood of their fleeing from justice, in case enlarged on bail, as

such, petitions may be allowed.

9. I have heard the learned counsel for the parties and gone

through the record carefully.

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10. It clearly emerges from the record that the accused namely

Parminder Singh, on 9.11.2017, allegedly took the complainant,

Jaswant Singh to the house of the bail petitioner namely Ranjodh

.

Singh alias Tony. It also emerges from the record that in the room,

where complainant was allegedly taken by accused Parminder

Singh, bail petitioners were also present alongwith other accused

named above. Record further reveals that the allegations of

unnatural intercourse committed upon Jaswant Singh, are

directly against Parminder Singh, and there is no such allegation

against other accused including present bail petitioners. Similarly,

allegation of showing revolver is against Parminder Singh. Though

the record reveals that complainant Jaswant Singh was given

beatings in the room by accused including bail petitioners but

this Court finds substantial force in the arguments of Mr. Vijay

Arora, learned counsel representing the bail petitioners that there

are no specific allegations /imputations against the bail

petitioners, indicative of the fact that injuries allegedly caused on

the body of the complainant were caused by the bail petitioners,

who allegedly were present in the room. At this stage, this Court

finds no evidence on record suggestive of the fact that Parminder

Singh in connivance with the other accused including bail

petitioners, took the complainant to the room of Ranjodh Singh

alias Tony, where other accused were present. Perusal of the MLC

adduced on record by the investigating agency further suggests

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that all the injuries, save and except injury No. 8, are simple in

nature. Investigation in the case is almost complete and nothing is

required to be recovered from the bail petitioners, as has been

.

fairly admitted by the learned Additional Advocate General, on the

instructions of the Investigating Officer, present in the Court.

Revolver/pistol and the car allegedly used in the offence have been

recovered. As far as apprehension of the learned Additional

Advocate General with regard to tampering with

evidence/hampering the investigation in the event of enlargement

of bail petitioners on bail, is concerned, in that event investigating

agency is always at liberty to approach this Court, for the

cancellation of bail.

11. Though aforesaid aspect of the matter i.e. involvement of the

bail petitioners in the offence alleged against them, as has been

pointed out in earlier order, is to be considered and decided by the

learned trial Court, on the basis of evidence adduced on record by

the respective parties, but this Court, after having taken note of

the material available on record, sees no reason to keep the bail

petitioners in custody for indefinite period, especially when guilt of

the bail petitioners is yet to be proved, as such this Court can not

allow the bail petitioners to incarcerate in jail, for indefinite period.

12. By now it is well settled that gravity alone cannot be

decisive ground to deny bail, rather competing factors are

required to be balanced by the court while exercising its

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discretion. It has been repeatedly held by the Hon’ble Apex

Court that object of bail is to secure the appearance of the

accused person at his trial by reasonable amount of bail. The

.

object of bail is neither punitive nor preventative. The Hon’ble

Apex Court in Sanjay Chandra versus Central Bureau of

Investigation (2012)1 Supreme Court Cases 49; has been held

as under:-

“The object of bail is to secure the appearance of the
accused person at his trial by reasonable amount of
bail. The object of bail is neither punitive nor
preventative. Deprivation of liberty must be

considered a punishment, unless it can be required
to ensure that an accused person will stand his trial

when called upon. The Courts owe more than verbal
respect to the principle that punishment begins
after conviction, and that every man is deemed to be
innocent until duly tried and duly found guilty.
Detention in custody pending completion of trial

could be a cause of great hardship. From time to
time, necessity demands that some unconvicted
persons should be held in custody pending trial to

secure their attendance at the trial but in such
cases, “necessity” is the operative test. In India , it
would be quite contrary to the concept of personal

liberty enshrined in the Constitution that any
person should be punished in respect of any matter,
upon which, he has not been convicted or that in

any circumstances, he should be deprived of his
liberty upon only the belief that he will tamper with
the witnesses if left at liberty, save in the most
extraordinary circumstances. Apart from the
question of prevention being the object of refusal of
bail, one must not lose sight of the fact that any
imprisonment before conviction has a substantial
punitive content and it would be improper for any
court to refuse bail as a mark of disapproval of
former conduct whether the accused has been

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convicted for it or not or to refuse bail to an
unconvicted person for the propose of giving him a
taste of imprisonment as a lesson.”

13. Law with regard to grant of bail is now well settled. The

.

Apex Court in Siddharam Satlingappa Mhetre versus State of

Maharashtra and others, (2011) 1 SCC 694, while relying upon

its decision rendered by its Constitution Bench in Gurbaksh

Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565, laid down

the following parameters for grant of bail:-

“111. No inflexible guidelines or straitjacket formula
can be provided for grant or refusal of anticipatory
bail. We are clearly of the view that no attempt

should be made to provide rigid and inflexible
guidelines in this respect because all circumstances

and situations of future cannot be clearly visualized
for the grant or refusal of anticipatory bail. In
consonance with the legislative intention the grant
or refusal of anticipatory bail should necessarily
depend on facts and circumstances of each case. As

aptly observed in the Constitution Bench decision in
Sibbia’s case (supra) that the High Court or the
Court of Sessions to exercise their jurisdiction

under section 438 Cr.P.C. by a wise and careful use
of their discretion which by their long training and
experience they are ideally suited to do. In any

event, this is the legislative mandate which we are
bound to respect and honour.

112. The following factors and parameters can be
taken into consideration while dealing with the
anticipatory bail:

(i) The nature and gravity of the accusation
and the exact role of the accused must be
properly comprehended before arrest is made;

(ii) The antecedents of the applicant including
the fact as to whether the accused has

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previously undergone imprisonment on
conviction by a Court in respect of any
cognizable offence;

(iii) The possibility of the applicant to flee from

.

justice;

(iv) The possibility of the accused’s likelihood
to repeat similar or the other offences.

(v) Where the accusations have been made
only with the object of injuring or humiliating
the applicant by arresting him or her.

(vi) Impact of grant of anticipatory bail

particularly in cases of large magnitude
affecting a very large number of people.

(vii) The courts must evaluate the entire

available material against the accused very
carefully. The court must also clearly

comprehend the exact role of the accused in
the case. The cases in which accused is
implicated with the help of sections 34 and
149 of the Indian Penal Code, the court
should consider with even greater care and

caution because over implication in the cases
is a matter of common knowledge and
concern;

(viii) While considering the prayer for grant of
anticipatory bail, a balance has to be struck

between two factors namely, no prejudice
should be caused to the free, fair and full
investigation and there should be prevention

of harassment, humiliation and unjustified
detention of the accused;

(ix) The court to consider reasonable
apprehension of tampering of the witness or
apprehension of threat to the complainant;

(x) Frivolity in prosecution should always be
considered and it is only the element of
genuineness that shall have to be considered
in the matter of grant of bail and in the event

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of there being some doubt as to the
genuineness of the prosecution, in the normal
course of events, the accused is entitled to an
order of bail.” (Emphasis supplied)

.

14. Hon’ble Apex Court, in Sundeep Kumar Bafna versus

State of Maharashtra (2014)16 SCC 623, has held as under:-

“8. Some poignant particulars of Section 437 CrPC

may be pinpointed. First, whilst Section 497(1) of
the old Code alluded to an accused being “brought
before a Court”, the present provision postulates the
accused being “brought before a Court other than
the High Court or a Court of Session” in respect of

the commission of any non-bailable offence. As
observed in Gurcharan Singh vs State( Delhi Admn)
(1978) 1 SCC 118, there is no provision in the CrPC
dealing with the production of an accused before the

Court of Session or the High Court. But it must also
be immediately noted that no provision categorically

prohibits the production of an accused before either
of these Courts. The Legislature could have easily
enunciated, by use of exclusionary or exclusive
terminology, that the superior Courts of Sessions
and High Court are bereft of this jurisdiction or if

they were so empowered under the Old Code now
stood denuded thereof. Our understanding is in
conformity with Gurcharan Singh, as perforce it

must. The scheme of the CrPC plainly provides that
bail will not be extended to a person accused of the
commission of a non-bailable offence punishable

with death or imprisonment for life, unless it is
apparent to such a Court that it is incredible or
beyond the realm of reasonable doubt that the

accused is guilty. The enquiry of the Magistrate
placed in this position would be akin to what is
envisaged in State of Haryana vs Bhajan Lal, 1992
(Supp)1 SCC 335, that is, the alleged complicity of
the accused should, on the factual matrix then
presented or prevailing, lead to the overwhelming,
incontrovertible and clear conclusion of his
innocence. CrPC severely curtails the powers of the
Magistrate while leaving that of the Court of Session
and the High Court untouched and unfettered. It

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appears to us that this is the only logical conclusion
that can be arrived at on a conjoint consideration of
Sections 437 and 439 of the CrPC. Obviously, in
order to complete the picture so far as concerns the
powers and limitations thereto of the Court of

.

Session and the High Court, Section 439 would

have to be carefully considered. And when this is
done, it will at once be evident that the CrPC has
placed an embargo against granting relief to an
accused, (couched by us in the negative), if he is not

in custody. It seems to us that any persisting
ambivalence or doubt stands dispelled by the
proviso to this Section, which mandates only that
the Public Prosecutor should be put on notice. We
have not found any provision in the CrPC or

elsewhere, nor have any been brought to our ken,
curtailing the power of either of the superior Courts
to entertain and decide pleas for bail. Furthermore,
it is incongruent that in the face of the Magistrate

being virtually disempowered to grant bail in the
event of detention or arrest without warrant of any

person accused of or suspected of the commission
of any non-bailable offence punishable by death or
imprisonment for life, no Court is enabled to extend
him succour. Like the science of physics, law also
abhors the existence of a vacuum, as is adequately

adumbrated by the common law maxim, viz. ‘where
there is a right there is a remedy’. The universal
right of personal liberty emblazened by Article 21 of

our Constitution, being fundamental to the very
existence of not only to a citizen of India but to
every person, cannot be trifled with merely on a

presumptive plane. We should also keep in
perspective the fact that Parliament has carried out
amendments to this pandect comprising Sections

437 to 439, and, therefore, predicates on the well
established principles of interpretation of statutes
that what is not plainly evident from their reading,
was never intended to be incorporated into law.
Some salient features of these provisions are that
whilst Section 437 contemplates that a person has
to be accused or suspect of a non-bailable offence
and consequently arrested or detained without
warrant, Section 439 empowers the Session Court
or High Court to grant bail if such a person is in

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custody. The difference of language manifests the
sublime differentiation in the two provisions, and,
therefore, there is no justification in giving the word
‘custody’ the same or closely similar meaning and
content as arrest or detention. Furthermore, while

.

Section 437 severally curtails the power of the

Magistrate to grant bail in context of the
commission of non-bailable offences punishable
with death or imprisonment for life, the two higher
Courts have only the procedural requirement of

giving notice of the Bail application to the Public
Prosecutor, which requirement is also ignorable if
circumstances so demand. The regimes regulating
the powers of the Magistrate on the one hand and
the two superior Courts are decidedly and

intentionally not identical, but vitally and drastically
dissimilar. Indeed, the only complicity that can be
contemplated is the conundrum of ‘Committal of
cases to the Court of Session’ because of a possible

hiatus created by the CrPC.”

15. 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 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.

16. The Apex Court in Prasanta Kumar Sarkar versus Ashis

Chatterjee and another (2010) 14 SCC 496, has laid down the

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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.

17. In view of above, interim orders dated 20.11.2017, in both

the petitions are made absolute, subject to the petitioners

furnishing fresh bail bonds in the sum of `1,00,000/- each with a

local surety in the like amount, to the satisfaction of the

Investigating Officer concerned, besides following conditions:

(a) They shall make themselves 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) They shall not tamper with the prosecution evidence

nor hamper the investigation of the case in any
manner whatsoever;

(c) They 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) They shall not leave the territory of India without the
prior permission of the Court.

18. It is clarified that if the petitioners misuse the liberty or

violates any of the conditions imposed upon them, the

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investigating agency shall be free to move this Court for

cancellation of the bail.

19. 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 these petitions alone.

The petitions stands accordingly disposed of.

Copy dasti.

(Sandeep Sharma)
Judge

November 28, 2017
(vikrant)

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