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Suresh Kumar vs State Of Himachal Pradesh on 6 March, 2018


CrMP(M) No. 166 of 2018
Decided on March 6, 2018

Suresh Kumar … Petitioner


State of Himachal Pradesh Respondent

Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.

For the petitioner : Mr. Surinder Saklani, Advocate.

For the respondent : Mr. Dinesh Thakur, Additional
Advocate General with Mr. Vikrant
Chandel, Deputy Advocate General.

ASI Prakash Chand, Police Station

Nerwa, District Shimla, HP.
Sandeep Sharma, Judge (oral):

Bail petitioner namely Suresh Kumar,

apprehending his arrest in case FIR No. 11/18 dated

24.1.2018, registered at Police Station, Nerwa, District Shimla,

Himachal Pradesh under Sections 366, 342 and 376 IPC, has

approached this Court by way of instant bail petition under

Section 438 CrPC, seeking therein pre-arrest bail.

2. Sequel to order dated 27.2.2018, whereby bail petitioner

was ordered to be enlarged on interim bail in the event of his

arrest, Shri Prakash Chand, ASI has come present with the

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

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record. Learned Additional Advocate General has also placed on

record status report prepared on the basis of investigation

carried out by the investigating agency, perusal whereof


suggests that on 24.2.2018, complainant-prosecutrix lodged a

complaint against the bail petitioner at Police Station Nerwa,

alleging therein that on 26.11.2017, bail petitioner came to her

residence and on the pretext of marriage sexually assaulted her

in her room. As per complainant, bail petitioner took her to

Baddi in his

against her wishes.

r to
vehicle, where he again sexually assaulted her

After ten days of alleged incident, bail

petitioner allegedly left the complainant-prosecutrix alone at

Baddi and thereafter he never turned up. On the basis of

aforesaid complaint lodged by the complainant-prosecutrix, FIR

detailed herein above came to be registered against the bail

petitioner. Investigation further reveals that the complainant-

prosecutrix was unable to identify the rooms at Baddi and

Chandigarh, where she was allegedly raped by the bail

petitioner, however, the fact remains that the bail petitioner

after having obtained interim bail from this Court, joined the

investigation and thereafter took the police to the room at

Baddi, where he was allegedly residing with complainant-


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3. Mr. Surinder Saklani, learned counsel representing the

bail petitioner, while referring to the record/status report

strenuously argued before this Court that no case is made out


against the bail petitioner because bare perusal of statement

having been made by the prosecutrix under Section 164 CrPC

itself suggests that she had joined the company of the bail

petitioner of her own volition and at no point of time, she was

forced/ compelled to join the company of bail petitioner. While

referring to the statement of one Shri Amar Chand Thakur, i.e.

owner of the house allegedly taken on rent by bail petitioner at

Baddi, Mr. Surinder Saklani contended that it is quite apparent

from the statement of this witness that the complainant-

prosecutrix and bail petitioner had been residing as husband

and wife for more than two months in the room and at no point

of time, complaint, if any, was ever lodged by the complainant-

prosecutrix with regard to forcible physical relations if any,

developed by the bail petitioner with her. Mr. Surinder Saklani,

learned counsel representing the bail petitioner further

contended that investigation in the case is complete and

nothing is required to be recovered from the bail petitioner and

as such no fruitful purpose shall be served in case custodial

interrogation as prayed for by the investigating agency is

allowed. He further contended that the bail petitioner being

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local resident of the State shall always remain available for

investigation and there is no likelihood of his fleeing from



4. On the other hand, Mr. Dinesh Thakur, learned

Additional Advocate General, while opposing aforesaid prayer

having been made by the learned counsel representing the bail

petitioner, vehemently argued that keeping in view the gravity

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

not deserve to be shown any leniency, rather he needs to be

dealt with severely. Learned Additional Advocate General, while

refuting aforesaid contentions having been made by the learned

counsel for the bail petitioner contended that bare perusal of

medical evidence adduced on record by investigating agency,

itself suggests that complainant-prosecutrix was repeatedly

subjected to sexual assault by the bail petitioner against her

wishes and as such, instant petition deserves to be dismissed.

While fairly admitting the fact that investigation in the case is

complete and nothing is required to be recovered from the bail

petitioner, learned Additional Advocate General contended that

in the event of petitioner’s being enlarged on bail, there is every

likelihood of his influencing the witnesses as such, present

petition may be dismissed.

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

through the record carefully.

6. After having carefully perused the record/ status report,


this Court finds considerable force in the arguments of the

learned counsel representing the petitioner that complainant-

prosecutrix and bail petitioner were known to each other for

quite considerable time and they had been meeting each other

in the past also. It has also come in the investigation that the

complainant-prosecutrix was unable to identify the rooms of

house and hotel taken on rent by the bail petitioner at Baddi

and Chandigarh.

7. Leaving everything aside, if the statement of Shri Amar

Chand Thakur i.e. owner of house at Baddi is perused, it clearly

suggests that complainant-prosecutrix had been residing with

bail petitioner for more than two months in the room at Baddi

and at no point of time, complainant-prosecutrix informed Amar

Chand Thakur with regard to her alleged illegal detention by

bail petitioner. Rather, statement of Amar Chand clearly

suggests that complainant-prosecutrix and bail petitioner had

good relations and they frequently used to go out together

meaning thereby that complainant-prosecutrix had sufficient

opportunity to raise hue and cry and lodge complaint, if any. It

has also come in the statement of Shri Amar Chand that on

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18.2.2018, bail petitioner gave him rent and stated that he is

going to Shimla, since his mother is not well. Thereafter, on

20.2.2018, complainant-prosecutrix also went to Shimla


intimating Shri Amar Chand Thakur that her mother-in-law at

Shimla was not well. Apart from above, as per the complaint

submitted by complainant-prosecutrix, incident took place on

26.11.2017, whereas FIR came to be registered on 24.2.2018

i.e. after two months and there is no explanation, if any,

available on record qua delay caused in lodging FIR. Though

aforesaid aspects of the matter are to be considered and decided

by the learned trial Court on the basis of material collected on

record by prosecution but this Court, after having carefully

gone through the material, sees no reason to let the bail

petitioner incarcerate in jail for indefinite period, especially

when investigation is complete and nothing is required to be

recovered from him, as has been fairly admitted by the learned

Additional Advocate General.

8. It has been repeatedly held by the Hon’ble Apex Court

that an individual is deemed to be innocent until proved guilty.

It has been further held by the Constitutional Courts that

freedom of an individual is of utmost importance and it can not

be curtailed merely on the basis of suspicion. In the case at

hand, guilt of the accused is yet to be proved in accordance with

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law by the prosecution and as such, it may not be in the

interest of justice that freedom of bail petitioner is curtailed for

indefinite period, especially when he has joined the


investigation and has been fully cooperating with the

investigating agency, as has been fairly admitted by the learned

Additional Advocate General.

9. 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 guilt has

not been 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

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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 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

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enormous overcrowding in prisons, leading to social
and other problems as noticed by this Court in In
Re-Inhuman Conditions in 1382 Prisons.

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


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:-

“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

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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.”

11. Law with regard to grant of bail is now well settled. The

Apex 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


(iv) The possibility of the accused’s likelihood
rto 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

(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 there should be prevention

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of harassment, humiliation and unjustified
detention of the accused;

(ix) The court to consider reasonable
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 of bail.” (Emphasis supplied)

12. 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

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.

13. 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


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

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(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


14. In view of above, interim order dated 27.2.2018, is made

absolute, subject to the petitioner’s furnishing fresh bail bonds in

the sum of Rs.1,00,000/- (Rs. One Lakh) with a local surety in the

like amount, to the satisfaction of the Investigating Officer

concerned, besides 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

(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 him.

15. 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.

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16. 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)

March 6, 2018

r to

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