IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP (M) No. 1030/2018
.
Date of decision: 20.8.2018
Ronu Kumar …… Petitioner
Vs.
State of H.P. ….. Respondent
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1
For the petitioner: Mr. B.R. Chandel Ajay Chandel,
Advocates.
For the respondent: Mr. Vinod Thakur and Mr. Sudhir
Bhatnagar, Additional Advocate
Generals with Mr. Bhupinder
Thakur, Deputy Advocate General.
ASI Baljeet Singh, Incharge, Police
Post Sandhol, Police Station,
Dharampur, District Mandi.
Tarlok Singh Chauhan (Oral)
The petitioner has sought anticipatory bail in case
FIR No. 72/2018, dated 15.6.2018, registered at Police Station,
Dharampur, District Mandi, under Sections 376 and 506 IPC.
1
Whether the reporters of the local papers may be allowed to see the Judgment?
Yes
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2 The respondentState has produced the record of the
investigation and has filed the status report.
.
3 In brief, the prosecution story as revealed from the
record, is that the prosecutrix, aged about 52 years, got
recorded her statement under Section 154 Cr.P.C. that the
petitioner, who is aged about 27 years and serving in Indian
Army, on 7/8 March, 2018 had ravished her in the open fields
and it is only when her son working in Ludhiana (Punjab) came
over to home on 9.5.2018 that she disclosed the entire incident
to him, upon which the instant FIR came to be registered
against the petitioner.
4 I have heard the learned counsel for the parties and
have also gone through the record of the investigation carefully.
5 Before proceeding further, it would be necessary to
bear in mind the law on the subject.
6 As early as in the year 1978, the Hon’ble Supreme
Court in Gurcharan Singh vs.State (Delhi Administration)
(1978) 1 SCC 118 laid down the following criteria for grant of
bail:
“22. In other nonbailable cases the Court will exercise its
judicial discretion in favour of granting bail subject to21/08/2018 22:59:13 :::HCHP
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subsection (3) of Section 437 Cr.P.C if it deems necessary
to act under it. Unless exceptional circumstances are.
brought to the notice of the Court which may defeat proper
investigation and a fair trial, the Court will not decline to
grant bail to a person w ho is not accused of an offencepunishable with death or imprisonment for life. It is also
clear that when an accused is brought before the Court of
a Magistrate with the allegation against him of an offence
punishable with death or imprisonment for life, he hasordinarily no option in the matter but to refuse bail subject,
however, to the first proviso to Section 437(1) CrPC and in
a case where the Magistrate entertains a reasonable beliefon the materials that the accused has not been guilty of
such an offence. This will, however, be an extraordinary
occasion since there will be some materials at the stage of
initial arrest, for the accusation or for strong suspicion ofcommission by the person of such an offence.
******
24. Section 439(1) CrPC of the new Code, on the other
hand, confers special powers on the High Court or theCourt of Session in respect of bail. Unlike under Section
437(1) there is no ban imposed under Section 439(1), CrPCagainst granting of bail by the High Court or the Court of
Session to persons accused of an offence punishable with
death or imprisonment for life. It is, however, legitimate to
suppose that the High Court or the Court of Session will be
approached by an accused only after he has failed before
the Magistrate and after the investigation has progressed
throwing light on the evidence and circumstances
implicating the accused. Even so, the High Court or the
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in considering the question of granting of bail under
Section 439(1) CrPC of the new Code. The overriding.
considerations in granting bail to which we adverted to
earlier and which are common both in the case of Section
437(1) and Section 439(1) CrPC of the new Code are thenature and gravity of the circumstances in which the
offence is committed; the position and the status of the
accused with reference to the victim and the witnesses; the
likelihood, of the accused fleeing from justice; of repeatingthe offence; of jeopardising his own life being faced with a
grim prospect of possible conviction in the case; of
tampering with witnesses; the history of the case as wellas of its investigation and other relevant grounds which, in
view of so many valuable factors, cannot be exhaustively
set out.”
7 The Hon’ble Apex Court in Prasanta Kumar
Sarkar versus Ashis Chatterjee and another, (2010) 14
SCC 496, 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, behavior, means, posit ion and standing of
the accused;
(vi) likelihood of the offence being repeated;
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(vii) reasonable apprehension of the witnesses being
influenced; and.
(viii) danger, of course, of justice being thwarted by grant of
bail.
8 In a detailed judgment, the Hon’ble Supreme
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 attempt should be made to
provide rigid and inflexible guidelines in this respect
because all circumstances and 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. As aptly observed in the Constitution Bench
decision in Sibbia’s case (supra) that the High Court or
the Court of Sessions to exercise their jurisdiction under
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 any event, this is the
legislative mandate which we are bound to respect and
honour.
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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 has previously
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 clearly comprehend 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 and caution
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 struck
between two factors namely, no prejudice should be
caused to the free, fair and full investigation and
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there should be prevention of harassment,
humiliation and unjustified detention of the
.
accused;
(ix) The court to consider reasonable e 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 event of there being some doubt as to the
genuineness of the prosecution, in the normal
course of events, the accused is entitled to an order
r of bail.
113.Arrest should be the last option and it should be
restricted to those exceptional cases where
arresting the accused is imperative in the facts and
circumstances of that case. The court must carefully
examine the entire available record and particularly
the allegations which have been directly attributed
to the accused and these allegations are
corroborated by other material and circumstances
on record.
114.These are some of the factors which should be taken
into consideration while deciding the anticipatory
bail applications. These factors are by no means
exhaustive but they are only illustrative in nature
because it is difficult to clearly visualize all
situations and circumstances in which a person
may pray for anticipatory bail. If a wise discretion is
exercised by the Judge concerned, after
consideration of entire material on record then most
of the grievances in favour of grant of or refusal of
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bail will be taken care of. The legislature in its
wisdom has entrusted the power to exercise this
.
jurisdiction only to the judges of the superior courts.
In consonance with the legislative intent ion we
should accept the fact that the discretion would be
properly exercised. In any event, the option of
approaching the superior court against the court of
Sessions or the High Court is always available.”
(Emphasis supplied)
9
In Sanjay Chandra vs. Central Bureau of
Investigation (2012) 1 SCC 40, the Hon’ble Supreme Court
made the following pertinent observations in paras 21, 22, 23,
and 40 as under:
“21. In bail applications, generally, it has been laid down
from the earliest times t hat 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 is 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.
22. From the earliest times, it was appreciated that 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
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trial but in such cases, `necessity’ is the operative test.
In this country, 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.
23. Apart from the question of prevention being the object of
a 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 un convicted person for the purpose
of giving him a taste of imprisonment as a lesson.
40. The grant or refusal to grant bail lies within the
discretion of the Court. The grant or denial is regulated,
to a large extent, by the facts and circumstances of each
particular case. But at the same time, right to bail is not
to be denied merely because of the sentiments of the
community against the accused. The primary purposes
of bail in a criminal case are to relieve the accused of
imprisonment, to relieve the State of the burden of
keeping him, pending the trial, and at the same time, to
keep the accused constructively in the custody of the
Court, whether before or after conviction, to assure that
he will submit to the jurisdiction of the Court and be in
attendance thereon whenever his presence is required.”
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10. Adverting to the present case, it would be noticed
.
that grave and serious allegations have been levelled against
the petitioner by the prosecutrix, however, these allegations for
the time being cannot be taken on the face value and in fact
have to be taken with pinch of salt as the silence of the
prosecutrix for such a long period of time cannot be attributed
to any threat perception for the simple reason that the petitioner
is serving in Indian Army, where he is posted as Sepoy.
11. That apart, there are many other attending
circumstances, which create serious doubt on the entire story
putforth by the prosecutrix. Not only this, if the statement of
the prosecutrix under Section 164 Cr.P.C. is taken into
consideration, even then the prosecutrix may have a lot to
explain.
12 Be that as it may, the allegations levelled by the
prosecutrix for the present cannot be taken to be such that
may be sufficient to deprive the petitioner as to liberty and
shall have to be proved by the prosecution, more particularly
the prosecutrix, during the course of the trial. Moreover, since
the petitioner is serving in Indian Army, obviously there is no
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question of his absconding or not associating with the trial, if
ordered to be released on bail.
.
13 Having said so, I find this to be a fit case where the
petitioner ought to be released on bail. Accordingly, the bail
petition is allowed and the petitioner is ordered to be released
on bail, in case FIR No. 72/2018, dated 15.6.2018, registered at
Police Station, Dharampur, District Mandi, under Sections 376
and 506 IPC, on his furnishing personal bonds in the sum of
Rs.50,000/ with one surety of the like amount, to the
satisfaction of the Arresting Officer with the following
conditions:
(i) 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;
(ii) He shall not tamper with the prosecution evidence
nor hamper the investigation of the case in any
manner whatsoever;
(iii)He shall not make any inducement, threat or
promise to any person acquainted with the facts of
the case so as to dissuade him/her from
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disclosing such facts to the Court or the Police
Officer;
.
(iv)He shall not leave the territory of India without
prior permission of the Court.
14 Any observation made hereinabove shall not be
taken as an expression of opinion on the merits of the case and
the trial Court shall decide the matter uninfluenced by any
observation made hereinabove. The petition stands disposed
of.
Copy dasti.
20th August, 2018 (Tarlok Singh Chauhan)
(pankaj) Judge
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