IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.167 of 2018
Date of Decision No.13.03.2018

.
__
Mohit Kumar alias Bittu …….. Petitioner

Versus

State of Himachal Pradesh …..Respondent.
__
Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the petitioner: Mr. N.K.Thakur, Senior Advocate, with

Mr. Divya Raj Singh, Advocate.

For the respondent: Mr. Dinesh Thakur, Additional Advocate
General, with Mr. Amit Kumar, Deputy

Advocate General.
__

Sandeep Sharma, Judge (oral):

Bail petitioner, who is in judicial custody since

25.06.2017, has approached this Court for grant of regular bail

under Section 439 of the Code of Criminal Procedure in case FIR

No.111 of 2017, dated 22.06.2017, under Sections 376, 342 and

506 of the Indian Penal Code, registered at Police Station, Amb

District Una, Himachal Pradesh.

2. Sequel to order dated 27.02.2018, ASI Arjun Singh,

Police Station, Amb, has come present in Court alongwith the

record of the case. Record perused and returned.

3. Mr. Dinesh Thakur, learned Additional Advocate

General, has also placed on record status report prepared on the

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

14/03/2018 23:00:57 :::HCHP
2

basis of the investigation carried out by the investigating agency,

perusal whereof suggest that FIR, detailed hereinabove, came to be

registered against the bail petitioner at the behest of the

.

complainant/ prosecutrix, on 22.06.2017. Complainant/

prosecutrix vide her complaint under Section 156(3) of the Code of

Criminal Procedure, addressed to the learned Additional Chief

Judicial Magistrate, Amb, District Una, Himachal Pradesh, alleged

that on 12.6.2017, at about 5:00 PM, bail petitioner visited her

house at village Kinnu and requested her to purchase ladies

clothes and accordingly complainant purchased two suits from the

bail petitioner. Thereafter, bail petitioner developed friendly

relation with the husband of the complainant and requested him

to accompany him to Amb for a dinner. The complainant and her

husband accepted the aforesaid proposal of dinner and came to

Amb at the residence of the bail petitioner. Allegedly, bail

petitioner made husband of the complainant/ prosecutrix to

consume whisky, as a consequence of which, he fell unconscious.

Complainant also alleged that on the same day accused also made

her to drink cold drink, but she after having consumed the same

became unconscious. The bail petitioner taking undue advantage

of situation forcibly developed physical relation with the

complainant. On the next day, accused provided Tea to the

complainant and her husband in the morning and asked the

husband of the complainant to accompany him to Mubarikpur,

14/03/2018 23:00:57 :::HCHP
3

where his Tralla was parked. During this period, complainant

remained in the rented house of the bail petitioner entire day. Bail

petitioner, who had come back at 7:00 PM, again in the night of

.

13.6.2017 repeatedly sexually assaulted the complainant against

her wishes.

4. On 14.6.2017, police came to the house of the bail

petitioner alongwith husband of the complainant, whereafter he

was taken to Police Station, Amb. Thereafter, complainant also

visited the Police station, Amb and narrated the entire story to the

police authority, but since no action was taken pursuant to her

complaint, she after lapse of 8 days made the aforesaid complaint

to learned Additional Chief Judicial Magistrate, Amb, making

therein prayer to register case against the bail petitioner. In the

aforesaid background, FIR, as mentioned above, came to be

registered against the bail petitioner. Status report reveal that on

14.6.2017 police had visited the house of the bail petitioner

alongwith the husband of the complainant to effect the search and

recovery, if any, in connection with theft case registered against

the husband of the complainant.

5. Mr. Divya Raj Singh, learned counsel representing the

bail petitioner, while referring to the status report, strenuously

argued that no case, if any, is made out against the bail petitioner

under Sections 376, 342 and 506 of IPC because admittedly on

14.06.2017 police had come to the house of the bail petitioner in

14/03/2018 23:00:57 :::HCHP
4

connection with some theft allegedly committed by the husband of

the complainant. He further contended that report nowhere

suggest that on that day or even thereafter factum, if any, with

.

regard to sexual assault allegedly committed by the bail petitioner

was communicated/informed to the police authorities. He further

contended that complaint under Section 156(3) of Code of

Criminal Procedure came to be lodged against the bail petitioner

after expiry of 8 days at the behest of the complainant as a

counter blast to the FIR registered against her husband in

connection with theft case.

6. Lastly, Mr. Divya Raj Singh, learned counsel

representing the bail petitioner, contended that bare conduct of

the complainant/prosecutrix itself suggests that she herself came

to the house of the bail petitioner and at no point of time she was

compelled by the bail petitioner. Learned counsel representing the

bail petitioner further contended that bail petitioner is behind the

bar for the last more than nine months without there being any

fault of him and as such, he deserve to be enlarged on bail,

especially when challan stands filed in the competent Court of law.

7. Mr. Dinesh Thakur, learned Additional Advocate

General, while refuting the aforesaid submissions having been

made by learned counsel representing the bail petitioner,

contended that keeping in view the gravity of offence allegedly

committed by the bail petitioner, he does not deserve any leniency

14/03/2018 23:00:57 :::HCHP
5

and as such, bail petition deserves to be dismissed out rightly. Mr.

Thakur, while referring to the record fairly admitted that on

14.06.2017 when police visited the house of the bail petitioner in

.

connection with some theft case registered against the husband of

the complainant, no complaint of sexual assault was registered by

the complainant/prosecutrix against the bail petitioner, rather she

kept mum for eight days, whereafter she made a complaint to the

learned Additional Chief Judicial Magistrate, Amb for issuing

direction to the police for registration of the case against the bail

petitioner. Mr. Thakur, further contended that bail petitioner is

resident of other State and in case he is ordered to be enlarged on

bail, it may be difficult for investigating agency to procure his

presence during the trial. He also stated that though investigation

in the case is complete but report of RFSL is yet awaited and as

such, bail petitioner may not be enlarged on bail at this stage.

8. I have heard learned counsel representing the parties

and carefully gone through the record made available.

9. After having carefully perused the record/status

report, this Court finds considerable force in the arguments of

learned counsel representing the bail petitioner that there is no

evidence adduced on record, at this stage by the investigating

agency suggestive of the fact that complainant/prosecutrix was

compelled by the bail petitioner to visit his house, rather it has

clearly come in the evidence that complainant/prosecutrix visited

14/03/2018 23:00:57 :::HCHP
6

the house of the bail petitioner alongwith her husband on their

own and they stayed there for couple of days. Interestingly, as per

the complaint lodged by the complainant she was subjected to

.

sexual assault against her wishes by the bail petitioner on the

night of 12/13th June, 2017, but she never disclosed this fact to

her husband, who was in the house of the bail petitioner till 13th

June, 2017. Complainant herself stated in her complaint that in

the morning of 13th June, 2017 she and her husband was served

with Tea by the bail petitioner, but it is not understood that if

complainant was subjected to sexual assault, then why she failed

to disclose this fact to her husband. Similarly, there is nothing on

record to suggest that on 14th June, 2017 when police visited the

house of bail petitioner in connection with theft case registered

against the husband of the complainant, complainant made a

complaint, if any, to police against the bail petitioner, disclosing

therein that she was subjected to sexual assault by the petitioner

on 13/14th June, 2018 against her wishes, rather she chose to

remain silent for eight days, whereafter she filed a complaint

under Section 156(3) of Code of Criminal Procedure, before learned

Additional Chief Judicial Magistrate, Amb.

10. After having perused the material adduced on record,

this Court is persuaded to agree with the contention of learned

counsel representing the bail petitioner that complainant, who is

admittedly married lady, had joined the company of the bail

14/03/2018 23:00:57 :::HCHP
7

petitioner of her own volition. Though, aforesaid aspects of the

matter are to be considered and decided by the court below on the

basis of the material available on record by the investigating

.

agency, but this Court having perused the material available on

record sees no reason to let the bail petitioner incarcerate in jail

for indefinite period, especially when challan stands filed in the

competent Court of law. Moreover, this Court cannot loose the

sight of the fact that the bail petitioner is in custody for the last

nine months.

11. It has been repeatedly held by the Hon’ble Apex Court

that freedom of an individual cannot be curtailed for indefinite

period as it is of utmost importance. Similarly, guilt, if any, of bail

petitioner is yet to be proved in accordance with law and as such,

prayer having been made by learned counsel for the petitioner for

grant of bail deserves to be considered. As far as apprehension

expressed by learned Additional Advocate General with regard to

possibility of petitioner’s absconding from the trial is concerned,

same can be met by putting the bail petitioner to stringent

conditions, as has been fairly submitted by the learned counsel

representing the bail petitioner.

12. 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

14/03/2018 23:00:57 :::HCHP
8

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 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
r 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

14/03/2018 23:00:57 :::HCHP
9

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.”

.

13. 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.

14. 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 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.

14/03/2018 23:00:57 :::HCHP
10

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;

(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;

14/03/2018 23:00:57 :::HCHP
11

(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)

15. 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 verbal
rrespect 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 before 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.”

14/03/2018 23:00:57 :::HCHP
12

16. Recently, the Hon’ble Apex Court in Criminal Appeal

No. 227/2018, Dataram Singh vs. State of Uttar Pradesh Anr

decided on 6.2.2018 has categorically held that freedom of an

.

individual is of utmost importance and same cannot be curtailed

for indefinite period. Hon’ble Apex Court has further held that till

the time guilt of accused is not proved in accordance with law, he

is deemed to be innocent. The relevant paras No.2 to 5 of the

judgment are reproduced as under:-

2. A fundamental postulate of criminal jurisprudence is the
presumption of innocence, meaning thereby that a person is
believed to be innocent until found guilty. However, there
are instances in our criminal law where a reverse onus has
been placed on an accused with regard to some specific

offences but that is another matter and does not detract
from the fundamental postulate in respect of other offences.

Yet another important facet of our criminal jurisprudence is
that the grant of bail is the general rule and putting a
person in jail or in a prison or in a correction home
(whichever expression one may wish to use) is an exception.
Unfortunately, some of these basic principles appear to
have been lost sight of with the result that more and more

persons are being incarcerated and for longer periods. This
does not do any good to our criminal jurisprudence or to our
society.

3. There is no doubt that the grant or denial of bail is

entirely the discretion of the judge considering a case but
even so, the exercise of judicial discretion has been
circumscribed by a large number of decisions rendered by

this Court and by every High Court in the country. Yet,
occasionally there is a necessity to introspect whether
denying bail to an accused person is the right thing to do
on the facts and in the circumstances of a case.

4. While so introspecting, among the factors that need to be

considered is whether the accused was arrested during
investigations when that person perhaps has the best
opportunity to tamper with the evidence or influence
witnesses. If the investigating officer does not find it
necessary to arrest an accused person during
investigations, a strong case should be made out for placing
that person in judicial custody after a charge sheet is filed.
Similarly, it is important to ascertain whether the accused
was participating in the investigations to the satisfaction of
the investigating officer and was not absconding or not
appearing when required by the investigating officer.
Surely, if an accused is not hiding from the investigating

14/03/2018 23:00:57 :::HCHP
13

officer or is hiding due to some genuine and expressed fear
of being victimised, it would be a factor that a judge would
need to consider in an appropriate case. It is also necessary
for the judge to consider whether the accused is a first-time
offender or has been accused of other offences and if so, the
nature of such offences and his or her general conduct. The

.

poverty or the deemed indigent status of an accused is also

an extremely important 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 approach to incarceration has been taken by
Parliament by inserting Section 436A in the Code of

Criminal Procedure, 1973.

5. To put it shortly, a humane attitude is required to be
adopted by a judge, while dealing with an application for
remanding a suspect or an accused person to police custody
or judicial custody. There are several reasons for this
including maintaining the dignity of an accused person,

howsoever poor that person might be, the requirements
of Article 21 of the Constitution and the fact that there is
enormous overcrowding in prisons, leading to social and
other problems as noticed by this Court in In Re-Inhuman
Conditions in 1382 Prisons.

17. 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.

14/03/2018 23:00:57 :::HCHP
14

18. 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 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.

19. 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.

14/03/2018 23:00:57 :::HCHP
15

20. 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
13th March, 2018
(shankar)

r to

14/03/2018 23:00:57 :::HCHP