IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
Cr. MP (M) No. 1058 of 2018
Decided on September 4, 2018

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Kamaljeet Singh …petitioner
Versus
State of Himachal Pradesh …respondent

Coram:The Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting

For the petitioner : Mr. Aditya Thakur, Advocate.

For the respondent : Mr. S.C. Sharma and Dinesh Thakur, Additional
Advocate Generals.
ASI Veena Paul, Women Police Station, Baddi,
District Solan, H.P. present with record.

Sandeep Sharma, J. (Oral)

Bail petitioner namely Kamaljeet Singh, who is behind the bars

since 18.02.2017, has approached this Court in the instant proceedings, filed

under Section 439 Cr. P.C., praying therein for grant of regular bail in

connection with FIR No. 2/17, dated 18.02.2017, under Sections 376 (D), 341

and 34 of IPC, registered at Women Police Station Baddi, District Solan,

Himachal Pradesh.

2. Sequel to order dated 20th August, 2018, ASI Veena Paul has

come present with 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.

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3. Perusal of record/status report reveals that complainant-

prosecutrix lodged a complaint at Women Police Station, Baddi, alleging

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therein that on 17th February, 2017, while she was returning to her home after

performing her duties at ESI Hospital Katha, at about 7.20 P.M., present

petitioner along with co-accused Purshotam, obstructed her way and took her

behind the bushes and sexually assaulted her against her wishes. On the basis

of the aforesaid statement of her made under Section 154 of Cr.P.C, an FIR

was lodged against the present bail petitioner and co-accused Purshotam, who

is a juvenile and at present is on bail. The present bail petitioner had earlier

approached this Court by way of Cr. MPM No. 1574 of 2017, praying therein

for grant of bail, however, same was dismissed as withdrawn.

4. Mr. Aditya Thakur, learned counsel for the bail petitioner,

states that more than two years have been passed, but till date, trial has not

commenced. While referring to the status report, Mr. Aditya Thakur, learned

counsel, argued that the learned Court below has fixed next date for examining

the prosecution witnesses on 9th January, 2019. Mr. Thakur, further argued

that bare perusal of the record/status report clearly suggests that no case, if

any, is made out under Section 376 (D) of IPC against the bail petitioner and

as such, bail petitioner deserves to be enlarged on bail. While referring to the

medical evidence adduced on record by the prosecution, Mr. Thakur, argued

that no definite conclusion has been drawn by the Medical Officer after having

examined the prosecutrix that she was subjected to forcible intercourse by

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accused rather, it is an admitted case of the parties that prosecutrix is 46 years

old lady having nine children, and as such, no much reliance, if any, can be

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placed on the medical evidence. Lastly, Mr. Thakur, contended that since co-

accused is already enlarged on bail, there is no force in the arguments of the

prosecution that in the event of petitioner’s being enlarged on bail, he may

influence and tamper with the evidence adduced on record by the prosecution,

especially when challan stands filed in the competent court of law.

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

opposing aforesaid prayer having been made by the learned counsel for the

bail petitioner, fairly admitted that challan stands filed in the competent court

of law but argued that keeping in view the gravity of offence allegedly

committed by the present bail petitioner, he does not deserve any leniency and

is not entitled to be enlarged on bail. While refuting the arguments advanced

by Mr. Aditya Thakur, learned Additional Advocate General, contented that

bare perusal of the report of the FSL as well as opinion rendered on record by

the Medical Officer, clearly suggests that on the date of alleged occurrence,

complainant-prosecutrix, was sexually assaulted by the bail petitioner as well

as co-accused against her wishes. Lastly, Mr. Thakur, contended that

otherwise also, no changed circumstance, if any, has been specifically

indicated in the present application having been filed by the bail petitioner so

as to entitle him to file instant application and as such, the present application

deserves to be dismissed being not maintainable.

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6. I have heard the learned counsel for the parties and gone

through the record carefully.

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7. After having heard learned counsel for the parties and perused

the record, though this Court finds that prosecution has collected on record

ample evidence suggestive of the fact that on the date of alleged occurrence,

present bail petitioner and his co-accused not only obstructed the way of the

complainant-prosecutrix ,rather she was sexually assaulted against her wishes,

but taking note of the fact that the present bail petitioner is behind the bar for

approximately two years and no much head way has been made as far as trial

is concerned, deems it fit to consider the prayer for grant of bail at this stage.

True it is that, no changed circumstance has been specifically averred in the

application at hand but bare perusal of the status report filed on behalf of

respondent-State, suggests that next date fixed by the learned Court below for

summoning first prosecution witness is 9th January, 2019 and as such, there

appears to be considerable force in the arguments of Mr. Aditya Thakur,

learned counsel for the bail petitioner that petitioner cannot be allowed to

incarcerate in jail for indefinite period during the pendency of the trial,

especially when challan stands filed in competent court of law. This Court

cannot loose sight of the fact that co-accused Purshotam, who is a juvenile, is

already on bail and as such, there appears to be no force in the arguments

made by learned Additional Advocate General that in the event of petitioner’s

being enlarged on bail, he may influence and tamper with the evidence

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adduced on record by the prosecution. Similarly there is no material placed on

record to substantiate that in the event of petitioner’s being enlarged on bail,

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he may flee from justice. Otherwise also, apprehension expressed by the

learned Additional Advocate General, can be met by putting the bail petitioner

to the stringent condition. By now it is well settled law that individual is

deemed to be innocent till the time, he /she is proved guilty and as such, this

Court is of the view that freedom of individual is of utmost importance and

cannot be curtailed for an indefinite period.

8. Needless to say, guilt, if any, of the bail petitioner is yet to be

proved in accordance with law by the prosecution by leading cogent and

convincing evidence. It is well settled that till the time a person is not found

guilty, one is deemed to be innocent. 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 a fundamental

postulate of criminal jurisprudence is the presumption of innocence, meaning

thereby that a person is believed to be innocent until found guilty. Hon’ble

Apex Court further held that while considering prayer for grant of bail, 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.

Hon’ble Apex Court has further held that if an accused is not hiding from the

investigating officer or is hiding due to some genuine and expressed fear of

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being victimized, it would be a factor that a judge would need to consider in

an appropriate case. The relevant paras of the aforesaid judgment are

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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 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

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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

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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. 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.

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,

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“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

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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 sou12nded 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
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 hi whether there is any prima facie or reasonable ground to
believe that the accused had committed the offence;

(i) nature and gravity of the accusation;
(ii) severity of the punishment in the event of conviction;

(iii) danger of the accused absconding or fleeing, if released on
bail; 12

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(iv) character, behaviour, means, position and standing of the
accused;

(v) likelihood of the offence being repeated;
(vi) reasonable apprehension of the witnesses being influenced;

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and danger, of course, of justice being thwarted by grant of

bail.”

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:

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

(viii) nature and gravity of the accusation;

(ix) severity of the punishment in the event of conviction;

(x) danger of the accused absconding or fleeing, if released on
bail;

(xi) character, behaviour, means, position and standing of the

(xii)
r accused;

likelihood of the offence being repeated;

(xiii) reasonable apprehension of the witnesses being influenced;

and

(xiv) danger, of course, of justice being thwarted by grant of bail.

13. In view of the aforesaid discussion as well as law laid down by

the Hon’ble Apex Court, petitioner has carved out a case for grant of bail,

accordingly, the petition is allowed and the petitioner is ordered to be enlarged

on bail subject to his furnishing personal bonds in the sum of Rs. 1,00,000/-

with one local surety in the like amount to the satisfaction of concerned Chief

Judicial Magistrate/trial Court, with 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;

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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

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d. He shall not leave the territory of India without the prior
permission of the Court.

14. It is clarified that if the petitioner misuses the liberty or violate

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

to move this Court for cancellation of the bail.

15. Any observations made herein above shall not be construed to

be a reflection on the merits of the cases and shall remain confined to the

disposal of this application alone. The bail petition stands disposed of

accordingly.

Copy dasti.

(Sandeep Sharma)

Judge

September 4, 2018

(reena)

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