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In The High Court Of Himachal … vs State Of Himachal Pradesh on 18 December, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMP(M) No. 1475 of 2017
Decided on December 18, 2017
__
Madan Lal … 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. Manoj Pathak, Advocate.
For the respondent : Mr. M.L. Chauhan, Additional
Advocate General.
ASI Gurdhian Singh, PS, Jawali,
r District Kangra, Himachal Pradesh.

__
Sandeep Sharma, Judge (oral):

By way of instant bail petition filed under Section 439 CrPC,

prayer has been made for grant of bail in FIR No. 170/11 dated

13.7.2011, under Sections 376, 323 and 506 IPC, registered at

Police Station, Jawali, District Kangra, Himachal Pradesh.

2. Sequel to order dated 11.12.2017, ASI Gurdhian 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.

3. Perusal of the status report /record suggests that FIR

mentioned herein above came to be registered against the bail

petitioner at the behest of the complainant-prosecutrix, who

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

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alleged that in the year 2010, bail petitioner met her and proposed

to marry her. Complainant-prosecutrix, though disclosed to him

that she belongs to a lower Caste, as such, marriage inter se them

.

may not be possible, however, bail petitioner, who also belongs to

an Other Backward Class (OBC), eloped with the complainant-

prosecutrix on the pretext that he will marry her. As per

complainant-prosecutrix, bail petitioner sexually assaulted her

repeatedly on the pretext of marriage. When she became pregnant,

she insisted the bail petitioner to marry her. Later on, it transpired

that the bail petitioner is already married to some other lady and

as such, complainant-prosecutrix alongwith her newly born child,

left the company of the bail petitioner and went to her maternal

house at Batungli. Complainant-prosecutrix further alleged that

bail-petitioner came to her maternal house and forcibly took her

ten months old baby alongwith him.

4. Mr. Manoj Pathak, learned counsel representing the bail

petitioner, while referring to the status report/record, vehemently

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

Section 376 IPC, because, bare narration of facts as detailed in the

record/status report suggests that the story put forth by the

prosecution/ investigating agency is concocted one and can not be

believed. Mr. Pathak, further contended that allegedly the bail

petitioner took the complainant-prosecutrix alongwith him in the

year 2001, whereafter complainant-prosecutrix allegedly gave birth

to one child, but in case the date as mentioned by the

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complainant-prosecutrix in her complaint i.e. 16.6.2010, when

allegedly she ran away with her new born child to her maternal

house, is taken into consideration, this in itself falsifies the story

.

put forth by the complainant-prosecutrix. Mr. Pathak, further

contended that alleged incident pertains to the year 2010, but FIR

came to be registered against the bail petitioner on 13.7.2011 and

there is nothing on record, suggestive of the fact that during this

period, complainant-prosecutrix made any attempt to lodge a

complaint, if any, against the bail petitioner, either to her parents,

or to the police and as such, delay in lodging FIR is in itself a

sufficient ground to release the bail petitioner on bail. Lastly Mr.

Pathak, contended that bail petitioner is a local resident of the

area and shall always remain available for facing trial and no

material has been placed on record by the prosecution suggestive

of the fact that in the event of his being enlarged on bail, there is

any likelihood of his fleeing from justice.

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

while refuting the aforesaid contentions having been made by the

learned counsel representing the bail petitioner, contended that

keeping in view the gravity of the offence allegedly committed by

the bail petitioner as well as his past conduct, he does not deserve

to be enlarged on bail, and present petition deserves to be

dismissed. Mr. Chauhan, learned Additional Advocate General,

while fairly admitting that there is delay in lodging FIR, contended

that there is ample evidence adduced on record by investigating

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agency that complainant-prosecutrix gave birth to a child, which

was subsequently taken away by the bail petitioner forcibly. Mr.

Chauhan, learned Additional Advocate General also contended

.

that FIR pertains to the year 2011, but investigation in the same

could not be completed for the sole reason that bail petitioner

remained absconding and never joined the investigation, as such,

he does not deserve to be shown any leniency, rather, in the event

of petitioner being enlarged on bail, he may influence or tamper

with the evidence adduced on record by the prosecution.

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

through the record carefully.

7. Perusal of status report/ record clearly suggests that the

incident pertains to the year 2010. Though there is no specific

date mentioned by the complainant-prosecutrix, in her statement

recorded under Section 154 CrPC, on the basis of which formal

FIR came to be registered, but as per her own statement,

complainant-prosecutrix categorically stated that on 16.6.2010,

she left the company of bail petitioner, meaning thereby child, if

any, was born prior to June, 2010, as such, story narrated by the

complainant-prosecutrix that she met bail petitioner for the first

time in the year 2010 is itself doubtful. Otherwise also, there is no

possible explanation rendered on record by the complainant-

prosecutrix for the delay in lodging FIR, which definitely came to

be registered after approximately one year of the alleged incident.

Similarly, there is nothing on record suggestive of the fact that

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during the aforesaid period, complaint, if any, was ever lodged by

the complainant-prosecutrix either to the police or to her parents.

It is not in dispute that complainant-prosecutrix is a major and is

.

capable of understanding consequences of the offence allegedly

committed by bail petitioner. Medical evidence adduced on record

by the prosecution/ investigating agency nowhere supports the

case of the prosecution, rather categorical finding has come on

record that complainant-prosecutrix is habitual of having sexual

intercourse. Though aforesaid aspect of the matter is to be

considered and decided by the trial Court, but this Court, after

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

to let the petitioner incarcerate in jail for indefinite period,

especially when he being a local resident, shall always remain

available to face trial and his guilt is yet to be proved. As far as

apprehension of the learned Additional Advocate General that it

may be difficult to secure the presence of the bail petitioner during

trial is concerned, bail petitioner can be put to stringent

conditions, for grant of 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

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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
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

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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
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.

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(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

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

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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
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

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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
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

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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 r thereof, severity of the punishment, which

conviction will entail, character of the accused, circumstances

which are peculiar to the accused involved in that crime.

Petitioners is local resident of Himachal Pradesh and shall remain

available to face the trial and to undergo imprisonment, if any,

which may be imposed on conclusion of the trial.

12. 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.

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13. In view of above, present petition is allowed and the

petitioner is ordered to be enlarged on bail in the aforementioned

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

.

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

satisfaction of learned Judicial Magistrate 1st Class, concerned

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 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.

14. 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.

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 these petition alone.

The petition stands accordingly disposed of.

Copy dasti.

(Sandeep Sharma)
Judge
December 18, 2017
(vikrant)

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