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_________________________________________________________________ vs State Of Himachal Pradesh on 19 January, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 1518 of 2017
Date of Decision No.19.01.2018

.
__
Manoj Kumar …….. Petitioner

Versus

State of Himachal Pradesh …..Respondent.
__
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.
__

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

.

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

.

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 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

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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.”

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 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;

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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 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)

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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”, 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 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

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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 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.”

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 verbal

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respect 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
r 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.”

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 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.

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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

.

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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