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Date Of Decision: 18.11.2019 vs State Of Himachal Pradesh on 18 November, 2019

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP(M) No. 2053 of 2019

.

Date of Decision: 18.11.2019
_
Pratap Singh Bharota …….. Petitioner
Versus

State of Himachal Pradesh ..Respondent
_
Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting?

For the Petitioner: Mr. V. S. Chauhan, Sr. Advocate with
Mr. Prem P. Chauhan, Advocate.

For the Respondent: Mr. Sudhir Bhatnagar Mr. Sanjeev

Sood, Additional Advocate Generals.
_
Sandeep Sharma, Judge (oral):

Sequel to order dated 13.11.2019, whereby this Court

after having taken the petitioner into custody in case FIR No.106

of 2019, dated 12.11.2019, under Section 376 IPC and Section 3

of the Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act 1989, registered at police Station, Kotkhai, District

Shimla, Himachal Pradesh, released him on bail subject to his

furnishing personal bonds in the sum of Rs. 50,000/- with one

surety in the like amount each, to the satisfaction of the Additional

Registrar (Judicial), SI Ashok Kumar has come present alongwith

the record. Mr. Sudhir Bhatnagar, learned Additional Advocate

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

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basis of the investigation carried out by the Investigating Agency.

Record perused and returned.

.

2. Mr. Sudhir Bhatnagar, learned Additional Advocate

General, on the instructions of Investigating Officer, who is

present in Court, fairly stated that pursuant to order dated

13.11.2019, bail petitioner has joined the investigation and he is

fully cooperating. He further stated that as per instructions

imparted to him, nothing remains to be recovered from the bail

petitioner. However, Mr. Bhatnagar contended that keeping in

view the gravity of the offence alleged to have been committed by

the petitioner, prayer made on behalf of the petitioner deserves to

be rejected outrightly.

3. Having heard learned counsel representing the

parties and perused the material available on record, especially

the statement of the prosecutrix witnesses recorded under section

164 Cr.PC, this Court finds that victim/prosecturix, who is 54

years old lady, had prior acquaintance/proximity with the bail

petitioner. It further emerge from the aforesaid statement made by

the prosecutrix that she had illicit relations with the petitioner for

the last 1½ years and during this period they had been meeting

frequently. Though the prosecutrix has alleged that the petitioner

kept on sexually assaulting her under threat to upload her

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obscene photographs and videos on internet, but having perused

the statement of prosecutrix given to the police, this Court is fully

.

convinced and satisfied that she was fully capable of

understanding the consequences of her being in the company of

the bail petitioner. It also emerge from the statement of the

prosecutrix that she is widow and resides with her children i.e.

one son and daughter-in-law and, as such, by no stretch of

imagination, it cant be accepted that the prosecutrix being under

constant threats from the bail petitioner was unable to lodge

report to police or other family members. There is no material

available on record suggestive of the fact that report, if any, ever

came to be lodged at the behest of the prosecutrix or her other

family members with regard to aforesaid indecent behaviour of the

petitioner, rather the statement of prosecutrix recorded under

section 154 Cr.PC clearly suggests that she despite having

received threats from the petitioner kept on joining his company.

4. Though aforesaid aspects of the matter are to be

considered and decided by the Court below but after having

noticed the aforesaid aspect of the matter, this Court sees no

reason to send the petitioner behind the bar during trial, especially

when the investigation is complete and nothing remains to be

recovered from him.

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5. It has been repeatedly held by Hon’ble Apex Court as

well as this Court that freedom of an individual cannot be curtailed

.

for indefinite period, especially when his/her guilt is yet to be

proved, in accordance with law. Bail petitioner is a government

employee, as such, there appears to be little chances of his

absconding.

6. 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 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

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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

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enormous overcrowding in prisons, leading to
social and other problems as noticed by this Court
in In Re-Inhuman Conditions in 1382 Prisons

.

7. 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, 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.

8. 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

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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.”

9. 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:

 whether there is any prima facie or
reasonable ground to believe that the accused
had committed the offence;

 nature and gravity of the accusation;

 severity of the punishment in the event of
conviction;

 danger of the accused absconding or fleeing, if
released on bail;

 character, behaviour, means, position and
standing of the accused;

 likelihood of the offence being repeated;

 reasonable apprehension of the witnesses
being influenced; and

 danger, of course, of justice being thwarted by
grant of bail.

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10. Consequently, in view of the above, order(s) dated

13.11.2019, passed by this Court, is made absolute, with

.

following conditions:-

 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;
 they shall not tamper with the prosecution evidence nor

hamper the investigation of the case in any manner
whatsoever;

 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
 he shall not leave the territory of India without the prior

permission of the Court.

11. It is clarified that if the petitioner misuse 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.

12. 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.

(Sandeep Sharma),
Judge
18th November, 2019
(rana)

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