IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No1463 of 2017.
Decided on: 11.12.2017.

.
Surinder …….. Petitioner.

Versus

State of Himachal Pradesh. …..Respondent.
__
Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1

For the petitioner: Mr. Anoop Chitkara Advocate with Ms.
r Sheetal Vyas, Advocate.

For the respondent: Mr. P.M. Negi, Additional Advocate
General.

ASI Nand Lal, Police Station Kandaghat,
District Solan, H.P., present along with
record.

Sandeep Sharma, Judge (oral):

By way of instant bail petition filed under Section 439

of the Code of Criminal Procedure, a prayer has been made for

grant of regular bail in case FIR No. 102/2017, dated 19.10.2017,

under Section 376 IPC, registered at Police Station, Kandaghat,

District Solan, Himachal Pradesh.

2. Sequel to order dated 4.12.2017, ASI Nand Lal, Police

Station, Kandaghat, District Solan, H.P., has come present in Court

alongwith the record of the case. Mr. P.M. Negi, learned Additional

Advocate General, has also placed on record status report

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

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prepared on the basis of the investigation carried out by the

Investigating Agency. Record perused and returned.

.

3. Careful perusal of the record/status report, suggests

that FIR, as detailed hereinabove, came to be registered against

the bail petitioner at the behest of complainant/prosecutrix, who

alleged that on 17th October, 2017, bail petitioner came to her

house on the pretext that he was sent by her (complainant) son for

delivering the money, but bail petitioner thereafter pushed her and

sexually assaulted her against her wishes.

r Complainant also

alleged that bail petitioner had been indulging in such activities, in

the past also and in this regard, she had lodged protest/complaint

with the parents of bail petitioner as well as Ward Member.

4. Mr. Anoop Chitkara, Advocate, duly assisted by Ms.

Sheetal Vyas, learned counsel, representing the bail petitioner,

while referring to the record/status report, strenuously argued that

no case is made out against the bail petitioner under Section 376

IPC, rather it is quite apparent from the statement of the

complainant recorded under Section 164 Cr.P.C. that she had

been meeting bail petitioner in past also and they had physical

relations. While referring to medical report, placed on record, by

the Investigating Agency, Ms. Vyas, contended that complainant is

56 years old lady and there is no injury on her person. She further

stated that she has nowhere stated that she with a view to rescue

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herself, raised any kind of alarm, which act of her itself suggests that

alleged sexual assault, if any, was with her consent. Lastly, Ms.

.

Sheetal Vyas, learned counsel, contended that bail petitioner

being local resident of the area, shall be always available for

investigation and trial and there is no likelihood of his fleeing from

justice and as such, he deserves to be enlarged on bail.

5. Mr. P.M. Negi, learned Additional Advocate General,

while opposing the aforesaid prayer having been made by the

learned counsel, representing the bail petitioner, contended that

keeping in view the gravity of offence, allegedly committed by the

bail petitioner, he does not deserve any leniency and as such,

present bail petition deserves to be dismissed. Mr. Negi, while

referring to the record, further contended that it is quite apparent

from the statement of prosecutrix that bail petitioner had been

indulging in such activities in past also and as such, his being

enlarged on bail at this stage, may not be in the interest of justice.

6. I have heard the learned counsel for the parties and

gone through the record.

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

especially, statement given by the complainant-prosecutrix, I am

persuaded to agree with the contentions raised by the learned

counsel, representing the bail petitioner that bail petitioner as well

as complainant-prosecutrix were known to each other and they

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have been meeting in past also. Rather, close scrutiny of

statement given by complainant-prosecutrix itself suggests that she

.

was well known bail petitioner, who had been meeting her

frequently. There is nothing on record suggestive of the fact that

complaint if any, was ever, lodged by the complainant with regard

to previous conduct of bail petitioner either to police or to the

Gram Panchayat. Rather, even in the present case alleged

incident occurred on 17th October, 2017, whereas, FIR came to be

lodged on 19.10.2017.

8. Leaving everything aside, medical evidence adduced

on record by the prosecution, nowhere proves the allegations of

the complainant, report of the Biology and Serology Division, State

Forensic Science Laboratory, Junga, is negative qua the presence

of semen on the all exhibits of the victim and as such, DNA Profiling

was not undertaken. Though, aforesaid aspect of the matter is to

be considered and decided by the learned trial court on the basis

of the evidence, if any, adduced on record by the prosecution, but

this Court after having carefully gone through the record, sees no

reason to allow the bail petitioner to incarcerate in jail for indefinite

period, especially when his guilt is yet to be proved by the

investigating agency by leading cogent and convincing evidence.

Apart from this, nothing has been placed on record by the

prosecution, from where, it can be inferred that in the event of

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petitioner’s being enlarged on bail, it may be difficult for the

Prosecution/Investigating Agency to secure his presence and as

.

such, bail petitioner being a local resident, deserves to be enlarged

on bail, on his furnishing appropriate security.

9. The Hon’ble Apex Court in Sanjay Chandra versus

Central Bureau of Investigation (2012)1 Supreme Court Cases 49;

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

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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.”

10. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5)

SCC 218, held as under:-

” This Court in Sanjay Chandra v. CBI, also involving an

economic offence of formidable magnitude, while
dealing with the issue of grant of bail, had observed

that deprivation of liberty must be considered a
punishment unless it is required to ensure that an

accused person would stand his trial when called upon
and that 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 ad found guilty. It was underlined that the
object of bail is neither punitive or preventive. This
Court sounded a caveat 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 a conduct whether an accused

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has been convicted for it or not or to refuse bail to an
unconvicted person for the purpose of giving him to
taste of imprisonment as a lesson. It was enunciated

.

that since the jurisdiction to grant bail to an accused

pending trial or in appeal against conviction is
discretionary in nature, it has to be exercised with care

ad caution by balancing the valuable right of liberty of
an individual and the interest of the society in general.
It was elucidated that the seriousness of the charge, is

no doubt one of the relevant considerations while
examining the application of bail but it was not only
the test or the factor and the grant or denial of such

privilege, is regulated to a large extent by the facts

and circumstances of each particular case. That
detention in custody of under trial prisoners for an
indefinite period would amount to violation of Article

21 of the Constitution was highlighted.”

11. 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. Petitioner is a local resident of the place mentioned in the

application and he shall remain available to face the trial and to

undergo imprisonment, if any, imposed upon him.

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12. 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;

(viii)

reasonable apprehension of the witnesses being

influenced; and

(ix) danger, of course, of justice being thwarted by grant
of bail.

13. 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 enlarged on bail in

aforesaid FIR, subject to furnishing personal bonds in the sum of

Rs.50,000/- with one local surety in the like amount to the

satisfaction of learned Chief Judicial Magistrate concerned, 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 date of hearing and if
prevented by any reason to do so, seek exemption
from appearance by filing appropriate application;

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(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.

14. It is clarified that if the petitioner misuses the liberty or

violate any of the conditions imposed upon him, the investigating

agency shall be free to move this Court for cancellation of the bail.

15. 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 petition stands accordingly disposed of.

Copy dasti.

(Sandeep Sharma)
Judge
11th December, 2017

(reena)

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