IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 144 of 2018
Date of Decision No.13.4.2018
Rakesh Kumar Kaushal …….. Petitioner
State of Himachal Pradesh …..Respondent.
Coram:Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether authorized for reporting?
For a petitioner: Mr. T.S.Chauhan, Advocate.
For a respondent: Mr. Ashok Sharma, Advocate General,with Mr. Dinesh Thakur, Additional Advocate General, and Mr. Vikrant Chandel, Deputy Advocate General.
Sandeep Sharma, Judge (oral):
Bail petitioner, namely Rakesh Kumar Kaushal, divining his arrest, has approached this Court for extend of anticipatory bail in box FIR No. 51 of 2018, antiquated 15.02.2018, underneath Sections 420, 406 of Indian Penal Code and Sections 3 7 of Essential Commodities Act, 1955, purebred during Police Station, Haroli, District Una, Himachal Pradesh.
2. Sequel to sequence antiquated 23.03.2018, ASI Shiv Parkash, military Station, Haroli, District Una, Himachal Pradesh, has come benefaction in Court alongwith a record of a case. Mr. Ashok Sharma, schooled Advocate General, has placed on record station news prepared on a basement of a review carried out by a questioning agency. Record perused and returned.
3. Mr. Ashok Sharma, schooled Advocate General, on a instructions of a Investigating Officer, who is benefaction in Court, nonetheless sincerely certified that whole batch of wheat/flour stands handed over to a Officials of a Food and Civil Supply Corporation, though settled that postulant is not wholly co-operating in a review given compartment date he has unsuccessful to divulge a names of other persons concerned in a crime allegedly committed by him and as such, his custodial inquire is required.
4. Mr. T.S.Chauhan, schooled warn representing a bail petitioner, while refuting a aforesaid acquiescence carrying been done by schooled Advocate General, contended that bail postulant is wholly auxiliary with a questioning group and all a orders upheld by this Court have been duly complied with. He serve contended that given whole batch i.e. 6744 quintals of wheat/flour stands recovered by a respondent-State and as such, there is no arise for a custodial inquire of a bail petitioner. Mr. Chauhan, serve contended that given no other person, as purported by a respondent-State, is concerned in a benefaction case, there is no arise for a benefaction postulant to divulge a name of other persons. He serve settled that postulant shall be digest all compulsory assistance/co-operation to a questioning group during a investigation. Lastly, Mr. Chauhan, contended that bail postulant is a conjectural chairman of a area and has sufficient mobile and determined skill and there is no odds of his journey from probity and he shall make himself accessible for review and conference as and when called by a questioning agency.
5. After carrying listened schooled warn representing a parties and perused a record, it is utterly apparent that bail postulant has complied with a sequence antiquated 23.3.2018, upheld by this Court, whereby he was destined to palm over 6744 quintals of wheat/flour to a officials of a State Civil Supply Corporation. As has been beheld hereinabove, Mr. Ashok Sharma, schooled Advocate General, has sincerely certified a factum with courtesy to handing over of a stock, referred hereinabove, and as such, this Court finds no reason for custodial inquire of a bail petitioner. Guilt, if any, of a bail postulant is nonetheless to be proved, in suitability with law and as such, leisure of an individual, who has differently done accessible finish batch to a respondentState, can't be authorised to be curtailed.
6. Recently, a Hon’ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh Anr motionless on 6.2.2018 has definitely hold that leisure of an particular is of pinnacle significance and same can't be curtailed merely on a basement of suspicion. Hon’ble Apex Court has serve hold that compartment a time shame of indicted is not proved, in suitability with law, he is deemed to be innocent. The applicable paras No.2 to 5 of a visualisation are reproduced as under:-
2. A elemental postulate of criminal
jurisprudence is a hypothesis of innocence,
meaning thereby that a chairman is believed to be
innocent until found guilty. However, there are
instances in a rapist law where a reverse
onus has been placed on an indicted with regard
to some specific offences though that is another
matter and does not detract from the
fundamental postulate in honour of other
offences. Yet another critical facet of our
criminal jurisprudence is that a extend of bail is
the ubiquitous sequence and putting a chairman in jail or in
a jail or in a improvement home (whichever
expression one competence wish to use) is an exception.
Unfortunately, some of these simple principles
appear to have been mislaid steer of with a result
that some-more and some-more persons are being
incarcerated and for longer periods. This does not
do any good to a rapist jurisprudence or to
3. There is no doubt that a extend or rejection of
bail is wholly a option of a judge
considering a box though even so, a practice of
judicial option has been unerring by a
large series of decisions rendered by this Court
and by any High Court in a country. Yet,
occasionally there is a prerequisite to introspect
whether denying bail to an indicted chairman is the
right thing to do on a contribution and in the
circumstances of a case.
4. While so introspecting, among a factors that
need to be deliberate is either a indicted was
arrested during investigations when that person
perhaps has a best eventuality to breach with
the justification or change witnesses. If the
investigating officer does not find it compulsory to
arrest an indicted chairman during investigations, a
strong box should be done out for fixation that
person in legal control after a assign piece is
filed. Similarly, it is critical to ascertain
whether a indicted was participating in the
investigations to a compensation of the
investigating officer and was not absconding or
not appearing when compulsory by a investigating
officer. Surely, if an indicted is not stealing from
the questioning officer or is stealing due to some
genuine and voiced fear of being victimised, it
would be a means that a decider would need to
consider in an suitable case. It is also
necessary for a decider to cruise either the
accused is a first-time delinquent or has been
accused of other offences and if so, a inlet of
such offences and his or her ubiquitous conduct. The
poverty or a deemed bankrupt station of an
accused is also an intensely critical factor
and even Parliament has taken notice of it by
incorporating an Explanation to Section 436 of
the Code of Criminal Procedure, 1973. An equally
soft proceed to bonds has been taken by
Parliament by inserting Section 436A in the
Code of Criminal Procedure, 1973.
5. To put it shortly, a benevolent opinion is required
to be adopted by a judge, while traffic with an
application for remanding a think or an
accused chairman to military control or judicial
custody. There are several reasons for this
including progressing a grace of an accused
person, howsoever bad that chairman competence be, the
requirements of Article 21 of a Constitution and
the fact that there is huge overcrowding in
prisons, heading to amicable and other problems as
noticed by this Court in In Re-Inhuman Conditions
in 1382 Prisons.
7. Needless to contend intent of a bail is to secure a assemblage of a indicted in a conference and a correct exam to be practical in a resolution of a doubt either bail should be postulated or refused is either it is illusive that a celebration will seem to take his trial. Otherwise, bail is not to be funded as a punishment. Otherwise also, normal sequence is of bail and not jail. Court has to keep in mind inlet of accusations, inlet of justification in support thereof, astringency of a punishment that self-assurance will entail, impression of a accused, resources that are rare to a indicted concerned in that crime.
8. The Hon’ble Apex Court in Sanjay Chandra contra Central Bureau of Investigation (2012)1 Supreme Court Cases 49; hold as under:-
“ The intent of bail is to secure a coming of
the indicted chairman during his conference by reasonable amount
of bail. The intent of bail is conjunction punitive nor
preventative. Deprivation of autocracy contingency be
considered a punishment, unless it can be compulsory to
ensure that an indicted chairman will mount his trial
when called upon. The Courts owe some-more than verbal
respect to a element that punishment starts after
conviction, and that any male is deemed to be
innocent until duly attempted and duly found guilty.
Detention in control tentative execution of trial
could be a means of good hardship. From time to
time, prerequisite final that some unconvicted
persons should be hold in control tentative conference to
secure their assemblage during a conference though in such
cases, “necessity” is a user test. In India , it
would be utterly discordant to a visualisation of personal
liberty enshrined in a Constitution that any person
should be punished in honour of any matter, upon
which, he has not been convicted or that in any
circumstances, he should be deprived of his liberty
upon usually a faith that he will breach with the
witnesses if left during liberty, save in a most
extraordinary circumstances. Apart from the
question of impediment being a intent of refusal of
bail, one contingency not remove steer of a fact that any
imprisonment before self-assurance has a substantial
punitive calm and it would be crude for any
court to exclude bail as a symbol of condemnation of
former control either a indicted has been
convicted for it or not or to exclude bail to an
unconvicted chairman for a introduce of giving him a
taste of seizure as a lesson.”
9. The Hon’ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496, has laid down a following beliefs to be kept in mind, while determining petition for bail:
(i) either there is any prima facie or reasonable belligerent to trust that a indicted had committed a offence;
(ii) inlet and sobriety of a accusation;
(iii) astringency of a punishment in a eventuality of conviction;
(iv) risk of a indicted absconding or fleeing, if expelled on bail;
(v) character, behaviour, means, position and station of a accused;
(vi) odds of a corruption being repeated;
(vii) reasonable confinement of a witnesses being influenced; and
(viii) danger, of course, of probity being thwarted by extend of bail.
10. Reliance is placed on visualisation upheld by a Hon’ble Apex Court in box patrician Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731, applicable para whereof has been reproduced herein below:-
“11. This Court has consistently recognized a right
of a indicted for a rapid trial. Delay in criminal
trial has been hold to be in defilement of a right
guaranteed to an indicted underneath Article 21 of the
Constitution of India. (See: Supreme Court Legal Aid
Committee v. Union of India, (1994) 6 SCC
731; Shaheen Welfare Assn. v. Union of India, (1996)
2 SCC 616) Accused, even in cases underneath TADA, have
been expelled on bail on a belligerent that they have
been in jail for a prolonged duration of time and there was
no odds of a execution of a conference during the
earliest. (See: Paramjit Singh v. State (NCT of Delhi),
(1999) 9 SCC 252 and Babba v. State of Maharashtra,
(2005) 11 SCC 569).
11. Consequently, in perspective of a above, sequence antiquated 16.02.2018, upheld by this Court, is done absolute, theme to a following conditions:
a. He shall make himself accessible for a purpose of interrogation, if so compulsory and frequently attend a conference Court on any and any date of conference and if prevented by any reason to do so, find grant from coming by filing suitable application;
b. He shall not breach with a charge justification nor bushel a review of a box in any demeanour whatsoever;
c. He shall not make any inducement, hazard or promises to any chairman proficient with a contribution of a box so as to inhibit him from disclosing such contribution to a Court or a Police Officer; and
d. He shall not leave a domain of India but a before accede of a Court.
12. It is simplified that if a postulant misuses his autocracy or violates any of a conditions imposed on him, a questioning group shall be giveaway to pierce this Court for termination of a bail. 13. Any observations done hereinabove shall not be construed to be a thoughtfulness on a merits of a box and shall sojourn cramped to a ordering of this focus alone.
The bail petition stands likely of accordingly.
13th April, 2018 (shankar)