IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CrMP(M) No. 604 of 2018
Decided on May 28, 2018
__

.
Harish Kumar … Petitioner

Versus

State of Himachal Pradesh Respondent

__
Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 yes.

For the petitioner : Mr. Jyotirmay Bhatt, Advocate vice
Mr. Pratap Singh Goverdhan,
Advocate.

For the respondent : Mr. S.C. Sharma and Mr. Dinesh
r Thakur, Addl. AG’s with Mr. Amit
Kumar, DAG.

L/ASI Krishna Kumari, IO, Police
Station Sadar, Solan, District Solan,
Himachal Pradesh.

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Sandeep Sharma, Judge (oral):

Bail petitioner, namely Harish Kumar, apprehending

arrest in FIR No. 132/18 dated 8.5.2018 under Sections 376 and

506 IPC, registered at Police Station Sadar, District Solan,

Himachal Pradesh, has approached this Court in the instant

proceedings filed under Section 438 CrPC, praying therein for

grant of pre-arrest bail.

2. Sequel to order dated 21.5.2018, whereby bail petitioner was

ordered to be enlarged on bail, in the event of his arrest, L/ASI

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

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Krishna Kumari has come present with the record. 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. Record perused and returned.

3. Close scrutiny of record/status report clearly reveals that

the bail petitioner as well as complainant-prosecutrix were known

to each other for the last more than five years and during this

period, they had developed physical relations. As per complainant-

prosecutrix, bail petitioner repeatedly sexually assaulted her

under the pretext of marriage and in the month of October, 2016,

she had become pregnant, but bail petitioner by administering her

medicines, got the pregnancy terminated against her wishes.

Allegedly, on 9.4.2017, bail petitioner took complainant-

prosecutrix to Kapoor Hospital, Chambaghat but even at that time,

no complaint, whatsoever, was lodged by the complainant-

prosecutrix against the illegal acts of bail petitioner, rather record

suggests that complainant-prosecutrix kept on meeting the bail

petitioner thereafter also.

4. Mr. Jyotirmay Bhatt, learned vice counsel representing the

bail petitioner, while referring to the status report strenuously

argued that no case is made out against the bail petitioner. He

further stated that the complainant-prosecutrix is a 32 year old

lady and it can not be said that the bail petitioner exploited her

taking advantage of her ignorance/innocence. Lastly, Mr. Bhatt,

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contended that the investigation in the case is complete and

nothing is required to be recovered from the bail petitioner and as

such, bail petitioner deserves to be enlarged on bail.

.

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

the instructions of the Investigating Officer, who is present in the

court, fairly admitted that the bail petitioner has joined

investigation in terms of order dated 21.5.2018 and is fully

cooperating. Mr. Thakur, while fairly admitting that nothing is

required to be recovered from the bail petitioner at this stage,

forcefully opposed the prayer having been made on behalf of bail

petitioner, for grant of bail and contended that keeping in view the

gravity of the offence allegedly committed by the bail petitioner, he

does not deserves to be enlarged on bail, rather needs to be dealt

with severely. Mr. Thakur further contended that though it

appears from the record that complainant-prosecutrix and bail

petitioner were known to each other for quite considerable time

but that may not be a ground for grant of bail, especially when it

has come in the investigation that bail petitioner repeatedly

sexually assaulted the complainant-prosecutrix against her

wishes.

6. Having heard the learned counsel representing the parties

and gone through the record, it is quite apparent that the

complainant-prosecutrix and bail petitioner were known to each

other for the last more than five years and during this period, they

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had developed intimate relations with each other. It has

specifically come in the investigation that the complainant-

prosecutrix had become pregnant in the month of October, 2016,

.

whereafter allegedly, bail petitioner got her pregnancy terminated

against her wishes, but there is nothing on record to suggest that

during this period, especially immediately after alleged termination

of pregnancy, complaint, if any, was ever lodged by the

complainant-prosecutrix against aforesaid illegal act of the bail

petitioner. Admittedly, complainant-prosecutrix is a 32 year old

lady and it can not be said that she was not aware of consequence

of such relationship.

7. Though aforesaid aspects of the matter are to be considered

and decided by the court below, on the basis of evidence, if any,

led on record by the investigating agency but this court sees no

reason to keep the bail petitioner behind the bars for indefinite

period, especially when he has joined the investigation and is fully

cooperating.

8. 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 held that freedom of an individual can

not be curtailed for indefinite period, especially when his/her guilt

is yet to be proved. It has further held by the Hon’ble Apex Court

in the aforesaid judgment that a person is believed to be innocent

until found guilty. The Hon’ble Apex Court has held as under:

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“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 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

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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.”

9. By now it is well settled that gravity alone cannot be a

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; has been held

as under:-

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“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.”

10. 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

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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.

11. 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;

(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.

12. In view of above, bail petitioner has carved out a case for

grant of bail and as such, order dated 21.5.2018 is made absolute

subject to petitioner furnishing fresh bail bonds in the sum of

Rs.1,00,000/- (Rs. One Lakh) with one local surety in the like

amount, to the satisfaction of the investigating officer, besides the

following conditions:

(a) He shall make himself available for the purpose of
interrogation, if so required and regularly attend the

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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

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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.

(e) He shall surrender passport, if any, held by her.

13. It is clarified that if the petitioner misuses the 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.

14. 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 petition alone.

The petition stands accordingly disposed of.

Copy dasti.

(Sandeep Sharma)
Judge

May 28, 2018
(vikrant)

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