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__________________________________________________________________ vs State Of Himachal Pradesh on 17 March, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

Cr.MP(M) No. 200 of 2018

.
Decided on: 17.3.2018

Gulshan Mohammad ………..Petitioner
Versus

State of Himachal Pradesh ……….Respondent

Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting? 1

For the Petitioner :
Mr. Digvijay Singh, Advocate.
For the Respondent :
Mr. Dinesh Thakur, Additional Advocate
General.

Sandeep Sharma, Judge (oral):

Apprehending his arrest, bail petitioner namely Gulshan

Mohammad, has approached this Court by way of instant petition for

grant of pre-arrest bail in FIR No. 34/18, dated 18.2.2018, registered at PS

Amb, District Una, H.P., under Section 376 of IPC,

2. Sequel to order dated 6.3.2018, whereby bail petitioner has

been ordered to be enlarged on bail in the event of her arrest, ASI Raj

Kumar, P.S. Amb, District Una, H.P., has come present along with records.

Record perused and returned. Mr. Dinesh Thakur, learned Additional

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

the basis of investigation carried out by the Investigating Agency, perusal

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

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2

whereof suggests that aforesaid FIR came to be lodged against the bail

petitioner at the behest of the complainant-prosecutrix, who alleged that

.

after the death of her husband in the year, 2007, bail petitioner

approached her with a proposal of marriage, as his wife had also expired.

Bail petitioner assured the complainant that he would look after her

children after marriage and as such, complainant believing the bail

petitioner to be good person, developed physical relations with him.

Subsequently, in the year, 2010, accused representing himself to be Hindu,

solemnized marriage with the complainant at Village Indora.

3. Complainant further alleged that she being a simpleton

lady, never moved out of the house of the bail petitioner without his

permission, but in the year, 2016, complainant came across a document,

which revealed that bail petitioner is not a Hindu, rather he is a

Mohammedan. Complainant further alleged that bail petitioner also

changed name of her minor son from Anmol to Anmol Mohd. When

complainant confronted the bail petitioner with the aforesaid fact, he

gave her beatings and started hurling abuses at her. Recently, through

multimedia and newspaper, it came to the notice of the complainant

that the accused made a public statement that the complainant is not

the wife of the bail petitioner-accused. In the aforesaid background,

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matter came to be reported to the police station Amb, against the bail

petitioner under Section 376 IPC.

.

4. Mr. Digvijay Singh, Advocate, representing the petitioner

while making reference to the record/status report vehemently

contended that no case much less under Section 376 IPC, is made out

against the bail petitioner and as such, he deserves to be enlarged on

bail. While inviting attention of this court to the complaint lodged by the

complainant-prosecutrix, Mr. Digvijay contended that there is no specific

allegation in the complaint that she was compelled by the bail petitioner

to solemnize marriage and thereafter, to develop physical relations with

the complainant, rather she of her own volition stayed with the bail

petitioner for more than six years and during this period, she never lodged

any complaint either to the police station or gram panchayat. Lastly, Mr.

Digvijay, contended that investigation in the case is almost complete and

nothing is required to be recovered from the bail petitioner at this stage

and as such, there is no occasion for the custodial interrogation of the bail

petitioner.

5. Mr. Dinesh Thakur, learned Additional Advocate General, on

instructions from Investigating Officer, who is present in Court, fairly

admitted that sequel to order dated 6.3.2018, petitioner has joined the

investigation and is fully cooperating with the investigating agency. Mr.

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Thakur, further contended that at this stage, nothing is required to be

recovered from the bail petitioner, but taking note of the gravity of the

.

offence allegedly committed by the bail petitioner, he does not deserve

to be enlarged on bail, rather needs to be dealt with very severely. Lastly

Mr. Thakur, contended that in the investigation, it has come to the fore

that the bail petitioner taking undue advantage of the innocence of the

complainant solemnized marriage with her representing himself to be

Hindu. Lastly, Mr. Thakur, contended that bail petitioner belongs to the

State of Punjab and in the event of his being enlarged on bail, it may be

difficult for the police to secure his presence during investigation/trial and

as such, present petition may be dismissed.

6. Having heard learned counsel for the parties and gone

through the record, this Court finds considerable force in the argument of

Mr. Digvijnay Singh Advocate, that there is no evidence available at this

stage suggestive of the fact that the bail petitioner taking undue

advantage of innocence of the complainant, compelled her to solemnize

the marriage with him, rather investigation reveals that in the year, 2007,

after the death of husband of the complainant, bail petitioner

approached her for marriage. Similarly, there is no allegation in the

complaint that between year, 2007-2010, bail petitioner sexually assaulted

the complainant against her wishes/volition, rather complainant, who at

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that relevant time was mother of two children herself decided to

solemnize marriage with the bail petitioner. Otherwise also there is no

.

explanation, if any, available on record with regard to the complainant’s

silence for almost six years between year, 2010 to 2016. Apart from

above, if aforesaid allegation leveled by the complainant is presumed to

be correct that bail petitioner mis-represented himself to be Hindu, there is

no explanation that why bail petitioner kept mum for two years, after

discovering the aforesaid fact in the year, 2016. Though aforesaid

aspects of the matter are required to be considered and decided by the

court below on the basis of material adduced on record by the

prosecution, but this Court after having seen record sees no reason for

custodial interrogation of the bail petitioner, who has otherwise made

himself available for investigation, as has been fairly admitted by the

learned Additional Advocate General.

7. As far as another apprehension expressed by learned

Additional Advocate General with regard to petitioner’s absconding from

trial in the event of his being enlarged on bail 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.

8. 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

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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, bail is not to be withheld as a punishment. 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.

9. 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 merely on the basis of

suspicion. Hon’ble Apex Court has further held that till the time guilt of the

accused is not proved in accordance with law, he is deemed to be

innocent. The relevant paras of the aforesaid 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

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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 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.

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10. The Hon’ble Apex Court in Sanjay Chandra versus Central

Bureau of Investigation (2012)1 Supreme Court Cases 49; 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.”

11. 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 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 or 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

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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.”

12. The Hon’ble Apex Court in Prasanta Kumar Sarkar v. 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)

(iii)
r nature and gravity of the accusation;

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.

13. Reliance is placed on judgment passed by the Hon’ble

Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat,

(2017) 2 SCC 731, relevant para whereof has been reproduced herein

below:-

“11. This Court has consistently recognised the right of the
accused for a speedy trial. Delay in criminal trial has been held to
be in violation of the right guaranteed to an accused
under 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 under TADA, have been released on bail
on the ground that they have been in jail for a long period of time

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and there was no likelihood of the completion of the trial at the
earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC
252 and Babba v. State of Maharashtra, (2005) 11 SCC 569).

.

14. Consequently, in view of the above, order dated 6.3.2018

passed by this Court, is made absolute, subject to the 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 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.

15.

It is clarified that if the petitioner misuses his liberty or violates

any of the conditions imposed upon him, the investigating agency shall

be free to move this Court for cancellation of the bail.

16. 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 bail petition stands disposed of accordingly.

Copy dasti.

17th March, 2018 (Sandeep Sharma),
manjit Judge

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