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Judgments of Supreme Court of India and High Courts

Gurdev vs State Of H.P on 10 January, 2020

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.M.P.(M) No. 20 of 2020
Decided on:10.01.2020

.
Gurdev ….Petitioner

Versus
State of H.P. …Respondent

Coram:
The Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1
_

For the Petitioner : Mr. Ashwani Dhiman, Advocate.

For the Respondent : Mr. Anil Jaswal, Additional Advocate
General with Mr. Manoj Bagga,
Assistant Advocate General.

ASI Munshi Ram, Incharge Police
Post Rewalsar, P.S. Balh, District
Mandi, H.P. present with record.
_
Jyotsna Rewal Dua, J.(oral)

Petitioner is praying for grant of regular bail under Section

439 of the Code of Criminal Procedure in FIR No. 363 of 2019 dated

01.12.2019, registered at Police Station Balh, District Mandi under

Sections 376, 342, 506 and 323 of the Indian Penal Code.

2. I have heard Sh. Ashwani Dhiman, learned counsel for the

petitioner and Sh. Anil Jaswal, learned Additional Advocate General for

the State. I have also gone through the status report filed by ASI Munshi

Ram as well as record of the case relevant for adjudication of this petition.

1

Whether reporters of Local Papers may be allowed to see the judgment?

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3. The status report/record, reveals that:-

.

3(i) On 30.11.2019, the prosecutrix while going to her home,

visited the shop of the accused to purchase some grossery items when she

was dragged by the bail petitioner to a nearby room where he committed

rape upon her. The ornaments worn by the prosecutrix were also forcibly

taken away from her. On these allegations, on 1.12.2019, at around 7

P.M., instant FIR was lodged by the prosecutrix.

3(ii) It is seen from the record as well as status report that the

alleged jewellery articles forcibly taken from the prosecutrix by the

petitioner on 30.11.2019 were eventually traced from the home of

prosecutrix itself during investigation. In view of this recovery, Section

382 of IPC was deleted from the FIR in question.

3(iii) Statement of prosecutrix under Section 164 Cr.P.C was

also recorded on 3.12.2019 before learned Judicial Magistrate Ist Class,

Mandi, wherein, she did not make any complaint about her alleged rape

by the petitioner.

3(iv) According to the averments made in the petition, bail

petitioner is innocent, but has been falsely implicated at the behest of

husband of the prosecutrix, who has enmity with the petitioner. Status

report does not reflect any criminal history of the bail petitioner. Bail

petitioner is in custody w.e.f. 1.12.2019. He is local resident of Village

Darvias, P.O. Thinagalu, Tehsil Balh, District Mandi, therefore, his

presence can be secured during trial.

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4. It is apt to refer to the guidelines for grant/or refusal of

bail, reiterated by the Hon’ble Apex Court in Cr. Appeal No. 1603 of

.

2019, titled Shri P. Chidambaram vs. Central Bureau of

Investigation, decided on 22.10.2019, relevant segments whereof are

reproduced hereinafter:-

“17. Expression of prima facie reasons for granting or
refusing to grant bail is a requirement of law
especially where such bail orders are appealable so as

to indicate application of mind to the matter under
consideration and the reasons for conclusion.
Recording of reasons is necessary since the
accused/prosecution/victim has every right to know the

reasons for grant or refusal to grant bail. This will

also help the appellate court to appreciate and
consider the reasonings for grant or refusal to grant
bail. But giving reasons for exercise of discretion in
granting or refusing to grant bail is different from
discussing the merits or demerits of the case. At the

stage of granting bail, an elaborate examination of
evidence and detailed reasons touching upon the merit
of the case, which may prejudice the accused, should

be avoided. Observing that “at the stage of granting
bail, detailed examination of evidence and elaborate

documentation of the merits of the case should be
avoided”, in Niranjan Singh, it was held as under:-

“3. ……Detailed examination of the

evidence and elaborate documentation of the merits
should be avoided while passing orders on bail
applications. No party should have the impression
that his case has been prejudiced. To be satisfied
about a prima facie case is needed but it is not the
same as an exhaustive exploration of the merits in
the order itself.”

22. The jurisdiction to grant bail has to be exercised
on the basis of the well-settled principles having
regard to the facts and circumstances of each case.
The following factors are to be taken into

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consideration while considering an application for
bail:- (i) the nature of accusation and the severity of
the punishment in the case of conviction and the nature

.

of the materials relied upon by the prosecution; (ii)

reasonable apprehension of tampering with the
witnesses or apprehension of threat to the complainant
or the witnesses; (iii) reasonable possibility of

securing the presence of the accused at the time of
trial or the likelihood of his abscondence; (iv)
character behaviour and standing of the accused and
the circumstances which are peculiar to the accused;

(v) larger interest of the public or the State and similar
other considerations (vide Prahlad Singh Bhati v.
NCT, Delhi and another (2001) 4 SCC 280). There is
no hard and fast rule regarding grant or refusal to

grant bail. Each case has to be considered on the facts

and circumstances of each case and on its own merits.
The discretion of the court has to be exercised
judiciously and not in an arbitrary manner. At this
stage itself, it is necessary for us to indicate that we

are unable to accept the contention of the learned
Solicitor General that “flight risk” of economic
offenders should be looked at as a national
phenomenon and be dealt with in that manner merely

because certain other offenders have flown out of the

country. The same cannot, in our view, be put in a
straight-jacket formula so as to deny bail to the one
who is before the Court, due to the conduct of other

offenders, if the person under consideration is
otherwise entitled to bail on the merits of his own case.
Hence, in our view, such consideration including as to
“flight risk” is to be made on individual basis being
uninfluenced by the unconnected cases, more so, when
the personal liberty is involved.

23. In Kalyan Chandra Sarkar v. Rajesh Ranjan and
another (2004) 7 SCC 528, it was held as under:-

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“11. The law in regard to grant or refusal of
bail is very well settled.The court granting
bail should exercise its discretion in a

.

judicious manner and not as a matter of

course. Though at the stage of granting bail a
detailed examination of evidence and
elaborate documentation of the merit of the

case need not be undertaken, there is a need to
indicate in such orders reasons for prima facie
concluding why bail was being granted
particularly where the accused is charged of

having committed a serious offence. Any order
devoid of such reasons would suffer from non-

application of mind. It is also necessary for
the court granting bail to consider among
r other circumstances, the following factors also

before granting bail; they are:

(a) The nature of accusation and the severity
of punishment in case of conviction and the
nature of supporting evidence.

(b) Reasonable apprehension of tampering
with the witness or apprehension of threat to
the complainant.

(c) Prima facie satisfaction of the court in

support of the charge. (See Ram Govind
Upadhyay v. Sudarshan Singh (2002) 3 SCC
598 and Puran v. Rambilas (2001) 6 SCC

338.)
Referring to the factors to be taken into consideration for
grant of bail, in Jayendra Saraswathi Swamigal v. State
of Tamil Nadu (2005) 2 SCC 13, it was held as under:-

“16. …….The considerations which normally
weigh with the court in granting bail in non-
bailable offences have been explained by this Court
in State v. Capt. Jagjit Singh AIR 1962 SC 253 and
Gurcharan Singh v. State (Delhi Admn.) (1978) 1
SCC 118 and basically they are — the nature and
seriousness of the offence; the character of the

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evidence; circumstances which are peculiar to the
accused; a reasonable possibility of the presence of
the accused not being secured at the trial;
reasonable apprehension of witnesses being

.

tampered with; the larger interest of the public or

the State and other similar factors which may be
relevant in the facts and circumstances of the
case……”

24. After referring para (11) of Kalyan Chandra Sarkar,
in State of U.P. through CBI v. Amarmani Tripathi (2005)
8 SCC 21, it was held as under:-

“18. It is well settled that the matters to be
considered in an application for bail are (i)
whether there is any prima facie or reasonable
ground to believe that the accused had committed
r the offence; (ii) nature and gravity of the charge;

(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 tampered with; and (viii) danger,
of course, of justice being thwarted by grant of bail

[see Prahlad Singh Bhati v. NCT, Delhi (2001) 4
SCC 280 and Gurcharan singh v. State (Delhi

Admn.)(1978) 1 SCC 118]. While a vague
allegation that the accused may tamper with the

evidence or witnesses may not be a ground to
refuse bail, if the accused is of such character that
his mere presence at large would intimidate the
witnesses or if there is material to show that he will
use his liberty to subvert justice or tamper with the
evidence, then bail will be refused……..”.

Hon’ble Apex Court in 2019 (1) Cr.C.C. 163, titled

Sangitaben Shaileshbhai vs. State of Gujarat and anr., held as under:-

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“………while adjudicating a bail application, Section 439 of
the Code of Criminal Procedure, 1973 is the guiding principle
wherein Court takes into consideration, inter alia, the gravity

.

of the crime, the character of the evidence, position and status

of the accused with reference to the victim and witnesses, the
likelihood of the accused fleeing from justice and repeating the

offence, the possibility of his tampering with the witnesses and
obstructing the course of justice and such other grounds. Each
criminal case presents its own peculiar factual matrix, and
therefore, certain grounds peculiar to a particular case may

have to be taken into account by the Court. However, the
Court has to only opine as to whether there is prima facie case
against the accused. The Court must not undertake meticulous

examination of the evidence collected by the police, or rather

order specific tests as done in the present case…….”

5. Considering the facts of instant case as detailed in para-3,

in the light of law laid down by Hon’ble Court, I am inclined to grant bail

to the petitioner. Instant bail petition is accordingly allowed. Petitioner is

ordered to be released on bail in FIR No. 363 of 2019 dated 01.12.2019,

registered at Police Station Balh, District Mandi under Sections 376, 342,

506 and 323 of the Indian Penal Code, on his furnishing personal bail

bond in the sum of Rs. 50,000/- with one local surety in the like amount

to the satisfaction of the learned Trial Court or learned Competent Court

of jurisdiction, where the FIR in question was registered, subject to

following conditions:-

i) The petitioner shall not contact the complainant
and witnesses, to threaten or browbeat them or to use
any pressure tactics in any manner whatsoever.

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ii) The petitioner shall not make any inducement,
threat or promise, directly or indirectly, to the
Investigating Officer or any person acquainted with the

.

facts of the case to dissuade him/her from disclosing

such facts to the Court or any Police Officer or tamper
with the evidence.

iii) The petitioner shall regularly attend the trial on

each and every date of hearing and if prevented by any
reason to do so, shall seek exemption from personal
appearance by filing appropriate application.

iv) The petitioner shall not leave India without

prior permission of this Court.

v) Petitioner shall not tamper with prosecution
evidence nor hamper investigation of the case in any
r manner whatsoever.

It is clarified that the observations made above are only for

the purpose of adjudication of the present bail petition and the learned

Trial Court shall not be influenced by any of these observations while

deciding the case on merits. It shall be open for the prosecution to move

for cancellation of the bail in case the petitioner abuses the liberty

granted and breaches the conditions of bail. The petition stands disposed

of in the above terms.

Copy dasti.

(Jyotsna Rewal Dua)
Judge

January 10, 2020
(reena)

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