IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M)’s No. 1420 and 1421 of 2017
Decided on November 28, 2017
__
.
1. CrMP(M) No. 1420 of 2017
Mahinder Pal Singh alias Raja … Petitioner
Versus
State of Himachal Pradesh Respondent
2. CrMP(M) No. 1421 of 2017
Ranjodh Singh alias Tony … Petitioner
Versus
State of Himachal Pradesh Respondent
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Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 yes.
For the petitioner(s) : Mr. Vijay Arora, Advocate.
For the respondent : Mr. P.M. Negi and Mr. M.L.
Chauhan, Additional Advocates
General with Mr. R.K. Sharma,
Deputy Advocate General .
Inspector Jasbir Singh, Police
Station Paonta Sahib, District
Sirmaur, Himachal Pradesh.
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Sandeep Sharma, Judge (oral):
Since both the bail petitions arise out of same FIR, these
were taken up together, for disposal by way of this common
judgment.
2. By way of instant bail petitions filed under Section 438
CrPC, prayer has been made for grant of pre-arrest bail in FIR No.
1
Whether the reporters of the local papers may be allowed to see the judgment?
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2
480 of 2017 dated 10.11.2017, under Sections 342, 323, 506, 367,
377, 201, 147, 148, 149 IPC and Section 25 of the Arms Act,
registered at Police Station, Paonta Sahib, District Sirmaur,
.
Himachal Pradesh.
3. Before proceeding further, it may be noticed that
inadvertently, date of next hearing in the previous order was typed
as 28.12.2017 instead of 28.11.2017. However, the date was
correctly noted by the learned counsel for the petitioners as well
learned Additional Advocate General and matter was taken up
today only i.e. 28.11.2017.
4. Sequel to order dated 20.11.2017, Inspector Jasbir Singh
has come present with the record. Mr. M.L. Chauhan, learned
Additional Advocate General has also placed on record status
report, prepared on the basis of investigation carried out by the
investigating agency till date. Record perused and returned.
5. Careful perusal of the record/status report reveals that on
10.11.2017, complainant namely Jaswant Singh made a report at
Police Station, Paonta Sahib, District Sirmaur, alleging therein
that on 9.11.2017, he was asked by accused namely Parminder
Singh to accompany him. Since Parminder Singh was an old
acquaintance, Jaswant Singh went with him. Parminder Singh
took Jaswant Singh to the house of one of the co-accused namely
Ranjodh Singh alias Tony i.e. bail petitioner in CrMP(M) No. 1421
of 2017, where another person namely Mahinder Pal Singh (bail
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petitioner in CrMP(M) No. 1420 of 2017) was also present
alongwith one Golu Saini. Above named accused allegedly bolted
the room and windows, and thereafter gave thrashing to the
.
complainant on the pretext that he had joined some other gang. As
per complainant, he was not only given beatings but was also
threatened with dire consequences by Parminder Singh, who
showed him a pistol. Subsequently, complainant, in his statement
recorded under Section 164 CrPC, before the learned Magistrate
also disclosed that Parminder Singh, committed unnatural
intercourse with him on 9.11.2017, in the presence of other
accused, including present bail petitioners, as such, case came to
be registered against the accused under Section 377 IPC apart
from Sections 342, 323, 325, 506, 367, 201, 147, 148 and 149 IPC
and Section 25 of the Arms Act.
6. As per status report, accused namely Parminder Singh,
Gurjant Singh, Shamsher Singh and Mandeep Singh are in
custody. It also emerges from the record that the bail petition filed
by accused Parminder Singh has been already rejected by the
learned Additional Sessions Judge, Sirmaur at Nahan.
7. Mr. M.L. Chauhan, learned Additional Advocate General,
while inviting attention of this Court to the record/ status report,
vehemently argued that keeping in view the gravity of offence,
allegedly committed by the bail petitioners as well as other
accused, who are in custody, present bail petitions deserve to be
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dismissed and no leniency can be shown to the bail petitioners,
who are hardened criminals. Mr. Chauhan, learned Additional
Advocate General further contended that it clearly emerges from
.
the record/ status report that the present bail petitioners are part
of a gang and they have been indulging in illegal activities in the
past also, as is evident from the fact that cases have been
registered against them. Mr. Chauhan, learned Additional
Advocate General, further contended that true it is that as per
medical evidence available on record, all the injuries except injury
No. 8 are simple in nature, but that can not be a ground to enlarge
the bail petitioners on bail, keeping in view the fact that they have
not only helped the main accused Parminder Singh in kidnapping
the complainant, rather, thereafter, they threatened him with dire
consequences and also gave him beatings. Lastly Mr. Chauhan,
learned Additional Advocate General, contended that in the event
of bail petitioners being enlarged on bail, there is every likelihood
of their tampering with the evidence/hampering the investigation,
as such instant bail petitions may be dismissed.
8. Mr. Vijay Arora, learned counsel representing the bail
petitioners, while refuting the aforesaid submissions, having been
made by the learned Additional Advocate General, strenuously
argued that no case is made out against the bail petitioners under
aforesaid provisions of law, as such, they are entitled to be
enlarged on bail. While inviting attention of this Court to the
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5
record/status report, Mr. Vijay Arora, learned counsel
representing the bail petitioners, contended that there is no
allegation of commission of offences under Section 377 IPC,
.
against the bail petitioners, rather, it has specifically come in the
statement of the complainant that the accused Parminder Singh
committed unnatural intercourse with him. Mr. Arora, learned
counsel representing the bail petitioners, contended that otherwise
also, perusal of the status report suggests that there is no specific
allegation of beatings against the bail petitioners, rather,
repeatedly the complainant has named Parminder Singh, Gurjant
Singh, Shamsher Singh and Mandeep Singh and there is only a
passing reference of the present bail petitioners. Mr. Arora,
learned counsel representing the bail petitioners, further
contended that his clients can not be implicated in the case merely
on the basis of their presence in the room, where complainant
was allegedly given beatings. Lastly, Mr. Arora, learned counsel
contended that bail petitioners have already joined investigation in
terms of order dated 20.11.2017 and at this stage, nothing is
required to be recovered from them and bail petitioners shall
always be available for investigation and trial, and there is no
likelihood of their fleeing from justice, in case enlarged on bail, as
such, petitions may be allowed.
9. I have heard the learned counsel for the parties and gone
through the record carefully.
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6
10. It clearly emerges from the record that the accused namely
Parminder Singh, on 9.11.2017, allegedly took the complainant,
Jaswant Singh to the house of the bail petitioner namely Ranjodh
.
Singh alias Tony. It also emerges from the record that in the room,
where complainant was allegedly taken by accused Parminder
Singh, bail petitioners were also present alongwith other accused
named above. Record further reveals that the allegations of
unnatural intercourse committed upon Jaswant Singh, are
directly against Parminder Singh, and there is no such allegation
against other accused including present bail petitioners. Similarly,
allegation of showing revolver is against Parminder Singh. Though
the record reveals that complainant Jaswant Singh was given
beatings in the room by accused including bail petitioners but
this Court finds substantial force in the arguments of Mr. Vijay
Arora, learned counsel representing the bail petitioners that there
are no specific allegations /imputations against the bail
petitioners, indicative of the fact that injuries allegedly caused on
the body of the complainant were caused by the bail petitioners,
who allegedly were present in the room. At this stage, this Court
finds no evidence on record suggestive of the fact that Parminder
Singh in connivance with the other accused including bail
petitioners, took the complainant to the room of Ranjodh Singh
alias Tony, where other accused were present. Perusal of the MLC
adduced on record by the investigating agency further suggests
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that all the injuries, save and except injury No. 8, are simple in
nature. Investigation in the case is almost complete and nothing is
required to be recovered from the bail petitioners, as has been
.
fairly admitted by the learned Additional Advocate General, on the
instructions of the Investigating Officer, present in the Court.
Revolver/pistol and the car allegedly used in the offence have been
recovered. As far as apprehension of the learned Additional
Advocate General with regard to tampering with
evidence/hampering the investigation in the event of enlargement
of bail petitioners on bail, is concerned, in that event investigating
agency is always at liberty to approach this Court, for the
cancellation of bail.
11. Though aforesaid aspect of the matter i.e. involvement of the
bail petitioners in the offence alleged against them, as has been
pointed out in earlier order, is to be considered and decided by the
learned trial Court, on the basis of evidence adduced on record by
the respective parties, but this Court, after having taken note of
the material available on record, sees no reason to keep the bail
petitioners in custody for indefinite period, especially when guilt of
the bail petitioners is yet to be proved, as such this Court can not
allow the bail petitioners to incarcerate in jail, for indefinite period.
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
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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; 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 beconsidered a punishment, unless it can be required
to ensure that an accused person will stand his trialwhen 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 trialcould be a cause of great hardship. From time to
time, necessity demands that some unconvicted
persons should be held in custody pending trial tosecure 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 personalliberty enshrined in the Constitution that any
person should be punished in respect of any matter,
upon which, he has not been convicted or that inany 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 been29/11/2017 23:32:43 :::HCHP
9convicted 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. 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 attemptshould be made to provide rigid and inflexible
guidelines in this respect because all circumstancesand 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. Asaptly observed in the Constitution Bench decision in
Sibbia’s case (supra) that the High Court or the
Court of Sessions to exercise their jurisdictionunder 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 anyevent, 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 has29/11/2017 23:32:43 :::HCHP
10previously 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 clearlycomprehend 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 andcaution 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 struckbetween two factors namely, no prejudice
should be caused to the free, fair and full
investigation and there should be preventionof 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 event29/11/2017 23:32:43 :::HCHP
11of 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).
14. Hon’ble Apex Court, in Sundeep Kumar Bafna versus
State of Maharashtra (2014)16 SCC 623, has 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 ofthe 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 theCourt of Session or the High Court. But it must also
be immediately noted that no provision categoricallyprohibits 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 ifthey were so empowered under the Old Code now
stood denuded thereof. Our understanding is in
conformity with Gurcharan Singh, as perforce itmust. 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 punishablewith 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 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. It29/11/2017 23:32:43 :::HCHP
12appears 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 notin 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 orelsewhere, 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 Magistratebeing virtually disempowered to grant bail in the
event of detention or arrest without warrant of anyperson 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 adequatelyadumbrated 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 ofour 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 apresumptive plane. We should also keep in
perspective the fact that Parliament has carried out
amendments to this pandect comprising Sections437 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 in29/11/2017 23:32:43 :::HCHP
13custody. 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 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 andintentionally 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 possiblehiatus created by the CrPC.”
15. 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 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 also, normal rule is of bail
and not jail. Apart from above, 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.
16. The Apex Court in Prasanta Kumar Sarkar versus Ashis
Chatterjee and another (2010) 14 SCC 496, has laid down the
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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;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
17. In view of above, interim orders dated 20.11.2017, in both
the petitions are made absolute, subject to the petitioners
furnishing fresh bail bonds in the sum of `1,00,000/- each with a
local surety in the like amount, to the satisfaction of the
Investigating Officer concerned, besides following conditions:
(a) They shall make themselves available for the purpose
of interrogation, if so required and regularly attend the
trial Court on each and every date of hearing and ifprevented by any reason to do so, seek exemption
from appearance by filing appropriate application;
(b) They shall not tamper with the prosecution evidence
nor hamper the investigation of the case in any
manner whatsoever;
(c) They 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 disclosingsuch facts to the Court or the Police Officer; and
(d) They shall not leave the territory of India without the
prior permission of the Court.
18. It is clarified that if the petitioners misuse the liberty or
violates any of the conditions imposed upon them, the
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investigating agency shall be free to move this Court for
cancellation of the bail.
19. 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 these petitions alone.
The petitions stands accordingly disposed of.
Copy dasti.
(Sandeep Sharma)
Judge
November 28, 2017
(vikrant)
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