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Judgments of Supreme Court of India and High Courts

Shushil Kumar vs State Of Himachal Pradesh on 25 June, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CrMP(M) No. 573 of 2018
Decided on June 25, 2018
__

.
Shushil 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. Tara Singh Chauhan, Advocate.
For the respondent : Mr. S.C. Sharma and Mr. Dinesh

Thakur, Addl. AG’s with Mr. Amit
Kumar, DAG.

Yogesh Dutt Joshi, Dy.SP, Jawalaji,
District Kangra, HP (IO)

__

Sandeep Sharma, Judge (oral):

By way of present bail petition filed under Section 438

CrPC, prayer has been made for grant of anticipatory bail in

respect of FIR No. 26/18 dated 10.5.2018 under Sections 354

BD, 341, 506 and 34 IPC and Sections 8 and 11 of Protection of

Children from Sexual Offences Act and Section 67 of IT Act,

registered at Police Station, Khundion, District Kangra, Himachal

Pradesh.

2. Sequel to order dated 28.5.2018, Yogesh Dutt Joshi,

Dy.SP./ Investigating Officer 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

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

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investigation carried out by the investigating agency. Record

perused and returned.

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

.

10.5.2018, complainant-prosecutrix lodged a complaint, alleging

therein that on 26.2.2018, bail petitioner as well as co-accused

namely Shami Kumar threatened to demolish cow-shed allegedly

constructed on government land. Subsequently, on 28.2.2018, bail

petitioner allegedly provided one new telephone to the

complainant-prosecutrix and threatened her that in case she fails

to talk to him, he will demolish the cowshed made by her father on

the government land. Complainant also alleged that bail petitioner

and co-accused Shami Kumar with a view to pressurize her for

marriage, forcibly opened her Salwar and videographed her in a

naked condition. Complainant also reported to the police that save

and except video of her made against her wishes, bail petitioner as

well as co-accused have not committed any offence. Allegedly video

of complainant was later on put on Facebook by co-accused Shami

Kumar and as such, FIR detailed herein above, came to be lodged

against bail petitioner as well as co-accused Shami Kumar.

4. Mr. Dinesh Thakur, learned Additional Advocate General,

while inviting attention of this Court to the status report and on

the instructions of the Investigating Officer, who is present in

court, fairly stated that bail petitioner has joined the investigation

pursuant to order dated 14.5.2018 and is fully cooperating. Mr.

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Thakur further stated that bail petitioner during investigation

revealed that on the alleged date of incident, i.e. 7.5.2018, he was

at Medical College, Tanda, in connection with illness of his

.

mother. In this regard, he also placed on record prescription

/discharge slip issued by Medical College, Tanda. During

investigation, police found discharge slip dated 7.5.2018, to have

been issued by Medical College Tanda. Mr. Thakur, on the

instructions of the Investigating Officer fairly stated that at this

stage, there is no evidence available to connect bail petitioner with

the offence alleged to have been committed by him, as such, he

can be ordered to be enlarged on bail, subject to the condition that

he shall make himself available for investigation as and when

required by the investigating agency.

5. Consequently, in view of above, this Court sees no reason to

keep the bail petitioner behind the bars for indefinite period,

especially when he has joined investigation. Moreover, as has been

noticed herein above, explanation rendered on record by bail

petitioner to prove his innocence has been found to be genuine

and correct, as such, prayer made in the instant application

deserves to be accepted. Further, bail petitioner is a government

employee and as such, there is no likelihood of his absconding

during investigation /trial.

6. Recently, the Hon’ble Apex Court in Criminal Appeal No.

227/2018, Dataram Singh vs. State of Uttar Pradesh Anr

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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:

“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

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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
enormous overcrowding in prisons, leading to social

and other problems as noticed by this Court in In
Re-Inhuman Conditions in 1382 Prisons.”

7. 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

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Apex Court in Sanjay Chandra versus Central Bureau of

Investigation (2012)1 Supreme Court Cases 49; has been 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 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.”

8. Needless to say object of the bail is to secure the

attendance of the accused in the trial and the proper test to be

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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

.

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.

9. 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.

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

grant of bail and as such, order dated 14.5.2018 is made absolute

subject to petitioner furnishing fresh bail bonds in the sum of

Rs.50,000/- (Rs. Fifty Thousand) with one local surety in the like

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amount, to the satisfaction of the trial court/Chief Judicial

Magistrate concerned, besides the 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;

(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.

11. 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.

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 petition alone.

The petition stands accordingly disposed of.

Copy dasti.

(Sandeep Sharma)
Judge
June 25, 2018
(vikrant)

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