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Anil Kumar vs State Of Himachal Pradesh on 8 December, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 1460 of 2017
Decided on: December 8, 2017
__

.
Anil Kumar … Petitioner

Versus

State of Himachal Pradesh Respondent

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

For the petitioner : Mr. Varun Thakur, Advocate.

For the respondent : Mr. P.M. Negi, Additional Advocate
General with Mr. R.K. Sharma, Deputy
r Advocate General.

ASI Nokh Ram, I/O Police Station,
Sadar, Solan, HP.
__
Sandeep Sharma, Judge (oral):

By way of instant bail petition filed under Section 438 CrPC,

prayer has been made for grant of bail in FIR No. 304/2017 dated

15.11.2017, under Sections 376 and 504 IPC, registered at Police

Station, Sadar, District Solan, Himachal Pradesh.

2. Sequel to order dated 4.12.2017, ASI Nokh Ram has come

present with the record. Mr. P.M. Negi, 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.

3. Perusal of record suggests that FIR herein above came to be

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

1

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

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2

prosecutrix, who alleged that the bail petitioner had met her six

months back in relation to sale-purchase of some vehicle.

Complainant further alleged that the bail petitioner started talking to

.

her on her mobile phone, whereafter, they developed good relations.

As per complainant, she developed physical relations with the bail

petitioner, who promised to marry her in the near future. During this

period, complainant-prosecutrix became pregnant and thereafter she

again requested bail-petitioner to marry her, who advised the

complainant to wait for some time. Since the bail petitioner was not

coming forth to solemnize marriage and complainant-prosecutrix was

carrying pregnancy, she threatened the bail petitioner to lodge report

with the police. Thereafter, bail petitioner allegedly gave some

medicine to the complainant-prosecutrix, in a cup of coffee,

whereafter, complainant-prosecutrix had to get the pregnancy

terminated.

4. Mr. Varun Thakur, learned counsel representing the bail

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

report vehemently argued that no case is made out against the bail-

petitioner under Sections 376 and 504 IPC, rather, it is a clear cut

case of consent, as such, bail petitioner deserves to be enlarged on

bail. Mr. Thakur, further contended that there is nothing on record to

substantiate the allegation that bail petitioner gave some medicine in

a cup of coffee to the complainant-prosecutrix, as a consequence of

which, she had to abort the pregnancy. Mr. Thakur, further contended

that the bail petitioner is a local resident of area and there is nothing

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on record, from where it can be inferred that in the event of petitioner

being enlarged on bail, he shall not make himself available for trial/

investigation.

.

5. Mr. P.M. Negi, learned Additional Advocate General, while

opposing aforesaid prayer having been made by the learned counsel

for the bail petitioner for grant of bail, argued that keeping in view the

conduct of the petitioner as well as gravity of offence committed by

bail petitioner, he does not deserve any leniency and present petition

deserves to be dismissed. Mr. Negi, further contended that it has come

in the investigation that bail petitioner has been consistently meeting

the complainant-prosecutrix and during this period, he sexually

assaulted the complainant-prosecutrix on false assurance of marriage

as such, he does not deserve to be enlarged on bail. Mr. Negi, further

contended that even after passing of order dated 4.12.2017, wherein

interim bail was granted to the bail petitioner, he failed to join the

investigation and as such, there is every likelihood of his fleeing from

justice, in the event of being enlarged on bail.

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

through the record carefully.

7. After having carefully perused the record, this Court finds that

bail petitioner was well known to the complainant-prosecutrix and he

had been meeting her frequently for the last six months and during

this period both of them developed intimate relations. Perusal of

investigation as well as status report itself suggests that complainant-

prosecutrix on the pretext of marriage herself developed physical

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relations with the bail petitioner. Complainant-prosecutrix is a thirty

year old lady and as such, argument advanced by Mr. Negi, that bail

petitioner sexually assaulted the complainant-prosecutrix on false

.

promise of marriage, deserves to be rejected ourightly. Though,

aforesaid aspect of the matter with regard to consent, if any, is to be

considered and decided by the learned trial Court, on the basis of

material adduced on record by the prosecution, this Court, after

having carefully perused record/ status report, sees no reason for

custodial interrogation of the bail-petitioner, who otherwise being a

local resident, shall always be available for investigation and

thereafter for trial. There is nothing on record suggestive of the fact

that in the event of petitioner being enlarged on bail, he may flee from

justice, as such, he deserves to be enlarged on bail.

8. 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 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

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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 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.”

9. 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

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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 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;

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(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 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)

10. 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

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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 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

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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 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.”

11. 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.

12. 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.

13. In view of above, interim order dated 4.12.2017, is made

absolute, subject to the petitioner furnishing fresh bail bonds in the

sum of `20,000/- with a surety in the like amount, to the satisfaction

of the Investigating Officer concerned, besides 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 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.

(e) Petitioner shall join investigation at 10.00 AM on
9.12.2017 in the Police Station concerned.

14. It is clarified that if the petitioner misuses the 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.

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15. 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
December 8, 2017
(vikrant)

r to

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