IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No. 12 of 2017

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Date of decision: 13.04.2017

State of Himachal Pradesh … Petitioner

Versus

Jai Inder Singh … Respondent

Coram :

The Hon’ble Mr. Justice Ajay Mohan Goel, Judge.

Whether approved for reporting?1 No.

For the petitioner: Mr. V.S. Chauhan, Additional
Advocate General, Advocate.

For the respondent: Mr. G.D. Verma, Senior Advocate
with Mr. B.C. Verma, Advocate, for
the respondent.

Ajay Mohan Goel, J. (Oral):

By way of this petition filed under Section 397

read with Section 401 of the Code of Criminal Procedure, the

State has challenged order dated 23.8.2016 passed by the

Court of learned Additional Sessions Judge, Kullu, in Bail

Application No. 97 of 2016 dated 23.08.2016, vide which

1
Whether reporters of Local Papers may be allowed to see the judgment?

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learned Additional Sessions Judge has ordered the release of

present respondent in case FIR No. 156 of 2016 dated

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11.08.2016 registered under Sections 376 and 506 of Indian

Penal Code at Police Station, Kullu.

2. Facts necessary for adjudication of the present

case are that an anticipatory bail application was filed by the

present respondent in case FIR No. 156 of 2016 dated

11.08.2016 under Sections 376 and 506 of Indian penal Code,

registered in Police Station Kullu, on the ground that
r the

complainant was working in the shop of the present

respondent, hereinafter referred to as the bail petitioner, for

the last 5-6 years and she was having live-in-relation with

the bail petitioner for the last more than one year. It was

further the case of the bail petitioner that the complainant

gave beatings to the bail petitioner as well as his son and in

this regard, the bail petitioner had lodged a report in Ladies

Police station, Kullu on 03.08.2016. As per the bail petitioner,

the complainant in retaliation lodged a false report in Police

Station, Kullu, against the bail petitioner and that the bail

petitioner was innocent and he had not committed any

such crime.

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3. Learned Court below vide order dated

23.08.2016 allowed the application so filed by the bail

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petitioner for the grant of anticipatory bail by holding that the

report filed by the State demonstrated that the complainant

was living with the bail petitioner in live-in-relationship for the

last more than one year. Learned Court below took note of

the fact that the bail application was opposed by the State

mainly on the ground that in case the bail was granted, bail

petitioner was likely to tamper with prosecution evidence. It

was observed by learned Court below that the said

apprehension of the prosecution can be suitably meted out

while releasing the bail petitioner and in case the bail

petitioner indulged in tampering with prosecution evidence,

the prosecution was at liberty to seek cancellation of bail so

granted to the bail petitioner. On these basis, learned Court

below granted anticipatory bail to the petitioner.

4. Feeing aggrieved, State has filed the present

revision petition.

5. As per learned Additional Advocate General, the

grant of anticipatory bail in favour of the present respondent

is not sustainable in the eyes of law as learned Court below

while releasing the respondent on anticipatory bail has erred

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in not appreciating that as the offence alleged against the

respondent was under Section 376 of Indian Peal Code, grant

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of anticipatory bail in such like matter amounts to incorrect

exercise of jurisdiction vested in the said Court. It was further

submitted by learned Additional Advocate General that

learned Court below while granting anticipatory bail has erred

in not appreciating the case of the prosecution that the

accused in fact was a married man and despite this, he

solemnized marriage with the complainant/victim
r on the

pretext that he had divorced his first wife and the said

conduct of the accused also did not entitle him to be released

on anticipatory bail. No other point was urged.

6. On the other hand Mr. G.D. Verma, learned

Senior Counsel appearing for respondent argued that there

was no merit in the present petition, as no illegality or

irregularity had been committed by the learned Court below

while granting bail in favour of respondent. According to Mr.

Verma, respondent was not guilty of having committed an

offence punishable under Section 376 IPC. Mr. Verma further

argued that respondent was totally innocent and no error had

been committed by the learned Court below while releasing

respondent on bail. It was further argued by Mr. Verma that

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“Bail before Jail” was well settled principle of criminal

jurisprudence. Mr. Verma further argued that there was no

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complaint on behalf of the prosecution that after release of

respondent on bail, he in any manner had tried to influence

the investigation. On these basis it was argued by Mr. Verma

that there was no merit in the revision petition and the same

be dismissed.

7. I have heard learned counsel for the parties and

also gone through the order passed by learned Court below

dated 23.08.2016.

8. Learned Court below vide order dated 23.08.2016

released respondent on bail in an application filed under

Section 438 of the Code of Criminal Procedure. After the grant

of bail in favour of respondent there is no complaint with

regard to conduct of respondent subsequent to his release on

bail to the effect that the said respondent was hampering the

investigation in the case.

9. It is not the case of the petitioner that the

learned Court below which has allowed the bail application of

the bail petitioner was not competent to have had adjudicated

on the said application or was not competent to release

respondent on bail. Thus it is not a case where any

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jurisdictional error has been committed by the learned Court

below by granting bail in favour of respondent. Therefore, this

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Court has to see as to whether learned Court below while

granting bail to respondent has acted on irrelevant material

or whether there was non application of mind or failure to

take note of any statutory bar to grant bail or there was any

manifest impropriety committed by the learned Court below

while granting bail.

10.
r The Hon’ble Supreme Court in Gurcharan Singh

and others Vs. State (Delhi Administration) (1978) 1

Supreme Court Cases 118 has held as under:-

“27. Ordinarily the High Court will not exercise its
discretion to interfere with an order of bail granted by

the Sessions Judge. in favour of an accused.

—–

29. We may repeat the two paramount
considerations, viz. likelihood of the accused fleeing
from justice and his tampering with prosecution

evidence relate to ensuring a fair trial of the case in a
court of justice. It is essential that due and proper
weight should be bestowed on these two factors
apart from others. There cannot ban inexorable
formula in the matter of granting bail. The facts and
circumstances of each case will govern the exercise of
judicial discretion in granting or cancelling bail.”

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11. The Hon’ble Supreme Court in Neeru Yadav Vs.

State of Uttar Pradesh and another, (2014) 16 Supreme

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Court Cases, 508 has held as under:-

“9. In this context, a fruitful reference be made to
the pronouncement in Ram Govind Upadhyay v.

Sudarshan Singh, wherein this Court has observed
that grant of bail though discretionary in nature, yet
such exercise cannot be arbitrary, capricious and
injudicious, for the heinous nature of the crime
warrants more caution and there is greater change of

rejection of bail, though, however dependant on the
factual matrix of the matter. In the said decision,
reference was made to Prahlad Singh Bhati v. NCT,
Delhi and the Court opined thus: (Sudarshan Singh

case, SCC p. 602, para4)

“(a) While granting bail the court has to keep in
mind not only the nature of the accusations, but
the severity of the punishment, if the accusation
entails a conviction and the nature of evidence in

support of the accusations.

(b) Reasonable apprehensions of the witnesses

being tampered with or the apprehension of there
being a threat for the complainant should also
weigh with the court in the matter of grant of bail.

(c) While it is not expected to have the entire
evidence establishing the guilt of the accused

beyond reasonable doubt but there ought always
to be a prima facie satisfaction of the court in
support of the charge.

(d) 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

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the prosecution, in the normal course of events,
the accused is entitled to an order of bail.”

10. In Chaman Lal V. State of U.P., the Court has

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laid down certain factors, namely, the nature of

accusation, severity of punishment in case of
conviction and the character of supporting evidence,
reasonable apprehension of tampering with the
witness or apprehension of threat to the complainant,

and prima facie satisfaction of the Court in support of
the charge which are to be kept in mind.

11. In this context, we may profitably refer to the
dictum in Prasanta Kumar Sarkar v. Ashis Chatterjee,

wherein it has been held that normally this Court does
not interfere with the order passed by the High Court
when a bail application is allowed or declined, but the
High Court has a duty to exercise its discretion

cautiously and strictly. Regard being had to the basic

principles laid down by this Court from time to time,
the Court enumerated number of considerations and
some of the considerations which are relevant for the
present purpose are; whether there is likelihood of
the offence being repeated and whether there is

danger of justice being thwarted by grant of bail.

12. We have referred to certain principles to be

kept in mind while granting bail, as has been laid
down by this Court from time to time. It is well
settled in law that cancellation of bail after it is

granted because the accused has misconducted
himself or of some supervening circumstances
warranting such cancellation have occurred is in a

different compartment altogether than an order
granting bail which is unjustified, illegal and perverse.
If in a case, the relevant factors which should have
been taken into consideration while dealing with the
application for bail and have not been taken note of
bail or it is founded on irrelevant considerations,
indisputably the superior court can set aside the order
of such a grant of bail. Such a case belongs to a
different category and is in a separate realm. While
dealing with a case of second nature, the Court does

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not dwell upon the violation of conditions by the
accused or the supervening circumstances that have
happened subsequently. It, on the contrary, delves
into the justifiability and the soundness of the order

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passed by the Court.

16. The issue that is presented before us is
whether this Court can annul the order passed by the
High Court and curtail the liberty of the second

respondent? We are not oblivious of the fact that the
liberty is a priceless treasure for a human being. It is
founded on the bedrock of constitutional right and
accentuated further on human rights principle. It is
basically a natural right. In fact, some regard it as the

grammar of life. No one would like to lose his liberty
or barter it for all the wealth of the world. People
from centuries have fought for liberty, for absence of
liberty causes sense of emptiness. The sanctity of

liberty is the fulcrum of any civilized society. It is a

cardinal value on which the civilization rests. It cannot
be allowed to be paralyzed and immobilized.
Deprivation of liberty of a person has enormous
impact on his mind as well as body. A democratic
body polity which is wedded to rule of law, anxiously

guards liberty. But, a pregnant and significant one,
the liberty of an individual is not absolute. The society
by its collective wisdom through process of law can

withdraw the liberty that it has sanctioned to an
individual when an individual becomes a danger to

the collective and to the societal order. Accent on
individual liberty cannot be pyramided to that extent
which would bring chaos and anarchy to a society. A
society expects responsibility and accountability from

the member, and it desires that the citizens should
obey the law, respecting it as a cherished social
norm. No individual can make an attempt to create a
concavity in the stem of social stream. It is
impermissible. Therefore, when an individual behaves
in a disharmonious manner ushering in disorderly
things which the society disapproves, the legal
consequences are bound to follow. At that stage, the
Court has a duty. It cannot abandon its sacrosanct
obligation and pass an order at its own whim or

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caprice. It has to be guided by the established
parameters of law.”

12. It is evident from the law laid down by the

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Hon’ble Supreme Court that certain factors which have to be

taken into consideration while dealing with the bail

applications are, nature of accusations, severity of punishment

in case of conviction, character of supporting evidence,

reasonable apprehension of tampering with the witness or

apprehension of threat to the complainant and prima facie

satisfaction of the Court in support of the charge. Besides

this, 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 of bail. It has been clearly laid down by

the Hon’ble Supreme Court that if in a case relevant factor

which should have been taken into consideration while dealing

with the application of bail have not been taken note of or bail

is founded on irrelevant consideration then the superior Court

can set aside the order of grant of bail. As per Hon’ble

Supreme Court in these kind of cases Court does not dwell

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upon the violation of the condition by the accused or

supervening circumstances that has happened subsequently

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on the contrary it delves upon the justifiability and the

soundness of the order passed by the Court.

13. Coming to the facts of the present case, a perusal

of the orders passed by learned Court below demonstrates

that after taking overall perspective of the matter, learned

Court below granted anticipatory bail in favour of the accused

on the conditions contemplated in the said order. Learned

Additional Advocate General has not been able to point out

that the learned Court below while granting bail has either

acted on irrelevant material or there has been non application

of mind or failure to take note of statutory bar in grant of bail.

No manifest impropriety has also been pointed out because it

is no one’s case that the State was not heard at the time

when bail was granted in favour of respondent by the learned

Court below. The basis on which learned Court below has

allowed the application of the accused cannot be termed to be

based on irrelevant material nor can it be said that there was

total non application of mind by the learned Court below while

granting the bail.

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14. Therefore, in my considered view, there is no

manifest illegality or irregularity in the order so passed by the

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learned Court below which has been assailed by way of

present revision and the same is accordingly dismissed.

(Ajay Mohan Goel),
April 13, 2017 Judge
(BSS)

r to

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