IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.1136 of 2017
Decided on: 8.9.2017
.
Surinder alias Kaku ………..Petitioner
Versus
State of Himachal Pradesh ……….Respondent
Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioner : Mr. Divya Raj Singh, Advocate.
For the Respondent : Mr. P.M. Negi, Additional Advocate
General.
Sandeep Sharma, Judge (oral):
By way of instant petition, a prayer has been made on
behalf of the bail petitioner for grant of bail in case FIR No.35/17 dated
23.5.2017, under Section 376 (1) IPC, registered at Police Station
Chintpurni, District Una, H.P.
2. Sequel to order dated 29.8.2017, ASI Sanjay Kumar, P.S.
Chintpurni, District Una, H.P., has come present along with records.
Record perused and returned. Mr. P.M. Negi, learned Additional
Advocate General, has also placed on record status report, which has
been prepared on the basis of record of investigating agency.
1
Whether the reporters of the local papers may be allowed to see the judgment?
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3. Perusal of report/record suggests that aforesaid FIR came to
be registered against the bail petitioner at the behest of the complainant
.
namely Rajeev Kumar, who happened to be brother in law of the
prosecutrix. Complainant alleged that the bail petitioner sexually
assaulted the prosecutrix on the assurance that he would be marrying her
in near future. Since bail petitioner refused to marry the prosecutrix, she
lodged the aforesaid complaint against the bail petitioner through her
brother in law.
4. While referring to the status report, Mr. Divya Raj Singh,
learned counsel representing the bail petitioner forcefully contended that
the prosecutrix is a widow aged about 44 years and as such, keeping in
view the status report submitted by the Investigating Agency, it can be
safely inferred that physical relations, if any, were made by the bail
petitioner with the consent of the prosecutrix.
5. Though, aforesaid aspect of consent, if any, on behalf of the
prosecutrix is to be determined and examined by the court below on the
basis of evidence adduced on record by the prosecution but this Court
after having carefully perused the record/status report finds substantial
force in the aforesaid argument of learned counsel for the bail petitioner
and sees no reason to keep the said petitioner in custody for indefinite
period, especially when investigation in the case is complete. It is evident
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from the record of investigation/status report that the prosecutrix and bail
petitioner are known to each other and they have been meeting each
.
other for last one year and during this period, no complaint whatsoever
was ever made by the prosecutrix alleging therein sexual assault
committed by the bail petitioner against her wishes.
6. Mr. P.M. Negi, learned Additional Advocate General, on
instructions, fairly stated that the investigation in the case is complete and
challan stands filed in the competent court of law and as such, there is no
requirement of custodial interrogation of the bail petitioner. Mr. further
contended that at this stage investigation agency has no objection, in
case bail petitioner is released on bail subject to the condition that he
shall make himself available for trial as and when required/called.
7. 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.
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Petitioner is local resident of District Kullu, and he shall remain available to
face the trial and to undergo imprisonment, if any, imposed upon him.
.
8. 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:
(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.
9. In view of the aforesaid discussion, petitioner has carved out
a case for grant of bail. Accordingly, the petition is allowed and the
petitioner is ordered to be released on bail in case FIR No.35/17 dated
23.5.2017, under Section 376 (1) IPC, registered at Police Station
Chintpurni, District Una, H.P., on his furnishing personal bonds in the sum of
Rs.50,000/- with one surety in the like amount to the satisfaction of learned
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 date11/09/2017 13:06:55 :::HCHP
5of 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 fromdisclosing 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.
10. It is clarified that if the petitioner misuses his 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.
11. 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 application alone.
The bail petition stands accordingly disposed of.
Copy dasti.
8th September, 2017 (Sandeep Sharma),
manjit Judge
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