IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 1518 of 2017
Date of Decision No.19.01.2018
.
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Manoj Kumar …….. Petitioner
Versus
State of Himachal Pradesh …..Respondent.
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Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the petitioner: Mr. Navlesh Verma, Advocate.
For the respondent: Mr. J.K.Verma, Deputy Advocate
General, with Mr. Rajat Chauhan, Law
Officer.
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Sandeep Sharma, Judge (oral):
Bail petitioner namely Manoj Kumar, who is in
custody since 3.12.2017, has approached this Court for grant of
regular bail under Section 439 of the Code of Criminal Procedure
in case FIR No.112 of 2017, dated 3.12.2017, under Sections 366,
376, 504 of the Indian Penal Code registered at Police Station,
Arki, District Solan, Himachal Pradesh.
2. Sequel to orders dated 19.12.2017 and 2.1.2018,
SI/SHO Ganga Ram, Police Station, Arki, has come present in
Court alongwith the record of the case. Mr. Rajat Chauhan,
learned Law Officer, has also placed on record status report
1
Whether the reporters of the local papers may be allowed to see the judgment?
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2
prepared on the basis of the investigation carried out by the
investigating agency.
3. Perusal of the record/status report suggest that FIR,
.
detailed hereinabove, came to be lodged at police Station, Arki at
the behest of the complainant/prosecutrix, who alleged that on
2.12.2017, she had come to attend retirement party of her father
and at around 7:00 PM, bail petitioner, who was known to her,
had telephonically called her on the road. Complainant/
prosecutrix alongwith her cousin namely Usha came on the road
to meet the bail petitioner, whereafter bail petitioner allegedly took
both of them in his car bearing No.HP-11-A-1678 towards
Chhibbar. Subsequently, bail petitioner dropped Usha i.e. cousin
of complainant/prosecutrix and thereafter he alongwith
prosecutrix proceeded towards Chhibbar. Complainant further
alleged that the bail petitioner threatened her by showing knife
and compelled her to solemnize marriage with him. Complainant/
prosecutrix apprehending danger to her life, agreed to aforesaid
proposal of marriage given by the bail petitioner and thereafter
they both proceeded towards Parwanoo. As per the record/status
report, bail petitioner as well as prosecutrix while going towards
Parwanoo had their dinner in one Dhaba at Dharampur,
whereafter they stayed at one Hotel, near petrol pump, Parwanoo.
Complainant/ prosecutrix further alleged that bail petitioner on
the pretext of marriage, sexually assaulted her and thereafter on
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the next day dropped her at her village. Complainant/prosecutrix
has also alleged that now bail petitioner is refusing to marry her
and as such, appropriate action may be taken against him, in
.
accordance with law.
4. Mr. Navlesh Verma, learned counsel representing the
bail petitioner, while inviting attention of this Court to the record/
status report, vehemently argued that no case, if any, is made out
under Section 376 and 504 of Indian Penal Code against the bail
petitioner. Mr. Verma, further contended that it is quite
apparent/evident from the status report that complainant/
prosecutrix joined the company of the bail petitioner of her own
volition without there being any external pressure and as such, it
cannot be said that bail petitioner kidnapped her and thereafter
sexually assaulted her. Mr. Verma, further contended that bail
petitioner is 24 years old and at present studying and as such,
great prejudice shall be caused to the bail petitioner, in case he is
allowed to incarcerate in jail for indefinite period.
5. Learned counsel representing the petitioner further
contended that bail petitioner is a local resident of the area and he
shall always remain available for the investigation as well as trial
and as such, he may be ordered to be enlarged on bail. Lastly, Mr.
Verma, invited attention of this Court to the medical evidence
adduced on record by the investigating agency to suggest that no
definite conclusion has been drawn by the medical agency vis-à-
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vis alleged act of sexual assault, if any, committed by the bail
petitioner.
6. Mr. Rajat Chauhan, learned Law Officer, while
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refuting aforesaid submission having been made by the learned
counsel representing the petitioner, contended that keeping in
view the alleged offences committed by the bail petitioner, he does
not deserve any leniency, rather needs to be dealt with severely.
Mr. Chauhan, further contended that it has come in the
investigation that the bail petitioner by showing knife to the
complainant forcibly took her in his car towards Parwanoo,
whereafter he allegedly sexually assaulted her twice. While
refuting the aforesaid contention put forth by learned counsel
representing the petitioner that nothing has come in the medical
evidence against the bail petitioner, Mr. Chauhan, learned Law
Officer, contended that bare perusal of the report submitted by the
FSL, suggests that bail petitioner sexually assaulted the
prosecutrix and as such, he is not entitled to be enlarged on bail.
However, Mr. Chauhan, learned Law Officer, fairly submitted that
investigation in the case is complete, save and except one report of
DNA, which is yet to be received by the Investigating Agency from
FSL.
7. I have heard learned counsel representing the parties
and carefully gone through the record made available.
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8. Careful perusal of the record/status report, nowhere
suggest that the prosecutrix was forcibly made to sit in the car by
bail petitioner, rather she after having received telephonic call
.
from the bail petitioner came on the road alongwith her cousin
namely Usha, who also joined her till one particular point.
Though, complainant has alleged that bail petitioner showing knife
to her compelled her to solemnize marriage with him, but it is also
apparent from the record that complainant/prosecutrix of her own
will proceeded towards Parwanoo and at place Dharampur, both of
them had dinner. If the prosecutrix was being taken forcibly by
petitioner, she had sufficient time at Dharampur to raise hue and
cry, but there is no evidence at all regarding this aspect of the
matter, rather prosecutrix silently joined the company of bail
petitioner and stayed with her in a Hotel at Parwanoo.
9. Though, aforesaid aspects of the matter are to be
considered and decided by the court below on the basis of
evidence adduced on record by the prosecution/investigating
agency, but, at this stage, this court after having carefully perused
the material available on record, sees no reason to agree with the
contention of learned Law Officer that bail petitioner forcibly
kidnapped the prosecutrix and thereafter sexually assaulted her.
The bail petitioner as well as prosecutrix are major, as is evident
from the record and as such, in view of the discussion made
herein above, this Court sees no reason to allow the bail petitioner
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to incarcerate in jail for indefinite period during the trial and as
such, he is entitled to be released on bail. Moreover, nothing has
been placed on record by the investigating agency, from where it
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can be inferred that in the event of petitioner’s being enlarged on
bail, there is likelihood of his fleeing from the justice.
10. 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; wherein it has been held as under:-
” The object of bail is to secure the appearance of the
accused person at his trial by reasonable amount ofbail. The object of bail is neither punitive nor
preventative. Deprivation of liberty must be considereda punishment, unless it can be required to ensure that
an accused person will stand his trial when calledupon. 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 trial22/01/2018 22:57:26 :::HCHP
7but 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 withthe 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 imprisonmentbefore 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 torefuse bail to an unconvicted person for the propose of
giving him a taste of imprisonment as a lesson.”
11. Otherwise also, normal rule is of bail and not jail.
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. 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:-
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“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 ofanticipatory 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 aptlyobserved 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 carefuluse 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;
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(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 himor her.
(vi) Impact of grant of anticipatory bail
particularly in cases of large magnitudeaffecting 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 inthe 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 thecases 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, fairand 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 thecomplainant;
(x) Frivolity in prosecution should always be
considered and it is only the element ofgenuineness 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)
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13. In Sundeep Kumar Bafna versus State of
Maharashtra another (2014)16 Supreme Court Cases 623,
wherein it has been 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”, thepresent 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 beimmediately 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 OldCode now stood denuded thereof. Our understanding is in
conformity with Gurcharan Singh, as perforce it must. Thescheme 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 theaccused 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 theoverwhelming, incontrovertible and clear conclusion of his
innocence. CrPC severely curtails the powers of the
Magistrate while leaving that of the Court of Session andthe 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 faras 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 the22/01/2018 22:57:26 :::HCHP
11Magistrate 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 shouldalso 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 featuresof 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 thesublime 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 ofgiving 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 notidentical, 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 apossible hiatus created by the CrPC.”
14. In Manoranjana Sinh Alias Gupta versus CBI 2017
(5) SCC 218, The Hon’ble Apex Court has 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 verbal22/01/2018 22:57:26 :::HCHP
12respect to the principle that punishment
begins after conviction and that every
man is deemed to be innocent until duly
tried and found guilty. It was underlined
that the object of bail is neither punitive.
nor preventive. This Court sounded a
caveat that any imprisonment beforeconviction 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 anaccused 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 orin 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
r society in general. It was elucidated that
the seriousness of the charge, is no doubtone 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 factsand circumstances of each particular
case. That detention in custody of under
trial prisoners for an indefinite period
would amount to violation of Article 21 ofthe Constitution was highlighted.”
15. 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;
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(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.
16. In view of the aforesaid discussion as well as law laid
down by the Hon’ble Apex Court, 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 his furnishing personal bonds in the sum of Rs
50,000/- with one local surety in the like amount to the
satisfaction of concerned Judicial Magistrate, with following
conditions:
(a) He shall make herself available for the purpose of
interrogation, if so required and regularly attendthe trial Court on each and every date of hearing
and if prevented by any reason to do so, seek
exemption from appearance by filing appropriateapplication;
(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.
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17. It is clarified that if the petitioner misuses the liberty
or violate any of the conditions imposed upon him, the
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investigating agency shall be free to move this Court for
cancellation of the bail.
18. 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),
r Vacation Judge
19th January, 2018
(shankar)
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