Vijender vs State Of Himachal Pradesh on 1 December, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No1436 of 2017.
Decided on: 01.12.2017.

.
Vijender …….. Petitioner.

Versus

State of Himachal Pradesh. …..Respondent.
__
Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1

For the petitioner: Mr. Manoj Pathak, Advocate.

For the respondent: Mr. P.M. Negi, Additional Advocate
r General and Mr. Rajinder Kumar Sharma,
Deputy Advocate General.

ASI Parkash Chand, Police Station
Sangrah, District Sirmour, H.P., present in
person.

Sandeep Sharma, Judge (oral):

By way of instant bail petition filed under Section 439

of the Code of Criminal Procedure, a prayer has been made for

grant of regular bail in case FIR No. 12/2016, dated 21.02.2016,

under Sections 342, 376, 120-B, 506 read with Section 34 IPC,

registered at Police Station, Sangrah, District Sirmaur, Himachal

Pradesh.

2. Sequel to order dated 25.11.2017, ASI Parkash Chand,

Police Station, Sangrah, District Sirmaur, H.P., has come present in

Court alongwith the record of the case. Mr. P.M. Negi, learned

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

02/12/2017 23:04:49 :::HCHP

Additional Advocate General, has also placed on record status

report prepared on the basis of the investigation carried out by the

.

Investigating Agency. Record perused and returned.

3. Careful perusal of the record/status report, suggests

that FIR, as detailed hereinabove, came to be registered against

the bail petitioner at the behest of complainant/prosecutrix, who

alleged that on 16.2.2016, she had gone to Haripurdhar for taking

medicine for her ear. She further alleged that co-accused namely

Kamal, who is also resident of her village, telephonically asked her

to stay there. Complainant/prosecutrix was subsequently enticed

and allured by the accused on the pretext that he would marry her

and as such, he accompanied her to Paonta. As per complainant,

accused Kamal made her to stay at the house of one Shri Liaq

Ram, resident of Manjholi, who happened to be the friend of

accused Kamal. On 17th February, 2016, co-accused Kamal

committed sexual assault on the complainant-prosecutrix twice,

where after, on 18th February, 2016, co-accused Kamal along with

his friends including present bail petitioner namely Vijender Singh,

sexually assaulted her at Paonta, District Nahan. Record/ status

report further reveals that on 19th February, 2016, co-accused

Kamal along with his friends including bail petitioner, dropped the

complainant/prosecutrix at Renuka Road. Thereafter, instant case

came to be registered against the bail petitioner as well as other

02/12/2017 23:04:49 :::HCHP
co-accused namely Kamal and Liaq Ram. Since, 21st February,

2016, bail petitioner is in custody, Mr. Manoj Pathak, learned

.

counsel, representing the bail petitioner, while referring to the status

report, contended that this Court vide order dated 10th October,

2017, passed in Cr.MP(M) No, 1215 of 2017, also granted bail to

main accused Kamal. Mr. Pathak, further stated that other co-

accused namely Liaq Ram, also stands released on bail by this

court. Aforesaid fact has been not disputed by the learned

Additional Advocate General, rather he fairly admitted that both

the co-accused, as named above, stand released on bail.

4. I have heard the learned counsel for the parties and

gone through the record.

5. At this stage, it may be noticed that learned counsel,

representing the petitioner as well as other co-accused, named

above, had made available the copies of the statements/

depositions, made by material prosecution witnesses during trial in

the Cr.MP(M) 1215/17 to demonstrate that all the material

prosecution witnesses including complainant/prosecutrix, have

turned hostile and none of the prosecution witnesses have

supported the case of the prosecution and as such, bail petitioner

is entitled to be released on bail.

6. Copies of statements placed on record of regular bail

petition in Cr.MP(M) No. 1215/2017, were found to be correct and

02/12/2017 23:04:49 :::HCHP
genuine, as fairly admitted/stated by learned Additional Advocate

General, on the instructions of the Investigating Officer. Bare

.

perusal of the statements of PWs, especially, prosecutrix, clearly

suggests that she has resiled from her statement and as such, this

Court sees no reasons to keep the bail petitioner in custody, who is

already in judicial lock-up for the last more than 18 months.

7. The Hon’ble Apex Court in Sanjay Chandra versus

Central Bureau of Investigation (2012)1 Supreme Court Cases 49;

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

02/12/2017 23:04:49 :::HCHP
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 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.”

8. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5)

SCC 218, held as under:-

” This Court in Sanjay Chandra v. CBI, also involving an
economic offence of formidable magnitude, while

dealing with the issue of grant of bail, had observed
that deprivation of liberty must be considered a

punishment unless it is required to ensure that an
accused person would stand his trial when called upon
and that 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 ad found guilty. It was underlined that the
object of bail is neither punitive or preventive. This
Court sounded a caveat that any imprisonment before

02/12/2017 23:04:49 :::HCHP
conviction has a substantial punitive content and it
would be improper for any court to refuse bail as a
mark of disapproval of a conduct whether an accused

.

has been convicted for it or not or to refuse bail to an

unconvicted person for the purpose of giving him to
taste of imprisonment as a lesson. It was enunciated

that since the jurisdiction to grant bail to an accused
pending trial or in appeal against conviction is
discretionary in nature, it has to be exercised with care

ad caution by balancing the valuable right of liberty of
an individual and the interest of the society in general.
It was elucidated that the seriousness of the charge, is

no doubt one of the relevant considerations while

examining the application of bail but it was not only
the test or the factor and the grant or denial of such
privilege, is regulated to a large extent by the facts

and circumstances of each particular case. That
detention in custody of under trial prisoners for an

indefinite period would amount to violation of Article
21 of the Constitution was highlighted.”

9. 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 a local resident of the place mentioned in the

02/12/2017 23:04:49 :::HCHP
application and he shall remain available to face the trial and to

undergo imprisonment, if any, imposed upon him.

.

10. 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;

(viii) reasonable apprehension of the witnesses being

influenced; and

(ix) danger, of course, of justice being thwarted by grant
of bail.

11. 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 enlarged on bail in

aforesaid FIR, subject to furnishing personal bonds in the sum of

Rs.50,000/- with one local surety in the like amount to the

satisfaction of learned Chief Judicial Magistrate concerned, with

following conditions:

02/12/2017 23:04:49 :::HCHP

(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.

12. 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.

13. 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 petition stands accordingly disposed of.

Copy dasti.

(Sandeep Sharma)
Judge
1st December, 2017
(reena)

02/12/2017 23:04:49 :::HCHP

Leave a Comment

Your email address will not be published. Required fields are marked *