IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No1436 of 2017.
Decided on: 01.12.2017.
.
Vijender …….. Petitioner.
Versus
State of Himachal Pradesh. …..Respondent.
__
Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the petitioner: Mr. Manoj Pathak, Advocate.
For the respondent: Mr. P.M. Negi, Additional Advocate
r General and Mr. Rajinder Kumar Sharma,
Deputy Advocate General.
ASI Parkash Chand, Police Station
Sangrah, District Sirmour, H.P., present in
person.
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. 12/2016, dated 21.02.2016,
under Sections 342, 376, 120-B, 506 read with Section 34 IPC,
registered at Police Station, Sangrah, District Sirmaur, Himachal
Pradesh.
2. Sequel to order dated 25.11.2017, ASI Parkash Chand,
Police Station, Sangrah, District Sirmaur, H.P., has come present in
Court alongwith the record of the case. Mr. P.M. Negi, learned
1
Whether the reporters of the local papers may be allowed to see the judgment?
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Additional Advocate General, has also placed on record status
report 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 16.2.2016, she had gone to Haripurdhar for taking
medicine for her ear. She further alleged that co-accused namely
Kamal, who is also resident of her village, telephonically asked her
to stay there. Complainant/prosecutrix was subsequently enticed
and allured by the accused on the pretext that he would marry her
and as such, he accompanied her to Paonta. As per complainant,
accused Kamal made her to stay at the house of one Shri Liaq
Ram, resident of Manjholi, who happened to be the friend of
accused Kamal. On 17th February, 2016, co-accused Kamal
committed sexual assault on the complainant-prosecutrix twice,
where after, on 18th February, 2016, co-accused Kamal along with
his friends including present bail petitioner namely Vijender Singh,
sexually assaulted her at Paonta, District Nahan. Record/ status
report further reveals that on 19th February, 2016, co-accused
Kamal along with his friends including bail petitioner, dropped the
complainant/prosecutrix at Renuka Road. Thereafter, instant case
came to be registered against the bail petitioner as well as other
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co-accused namely Kamal and Liaq Ram. Since, 21st February,
2016, bail petitioner is in custody, Mr. Manoj Pathak, learned
.
counsel, representing the bail petitioner, while referring to the status
report, contended that this Court vide order dated 10th October,
2017, passed in Cr.MP(M) No, 1215 of 2017, also granted bail to
main accused Kamal. Mr. Pathak, further stated that other co-
accused namely Liaq Ram, also stands released on bail by this
court. Aforesaid fact has been not disputed by the learned
Additional Advocate General, rather he fairly admitted that both
the co-accused, as named above, stand released on bail.
4. I have heard the learned counsel for the parties and
gone through the record.
5. At this stage, it may be noticed that learned counsel,
representing the petitioner as well as other co-accused, named
above, had made available the copies of the statements/
depositions, made by material prosecution witnesses during trial in
the Cr.MP(M) 1215/17 to demonstrate that all the material
prosecution witnesses including complainant/prosecutrix, have
turned hostile and none of the prosecution witnesses have
supported the case of the prosecution and as such, bail petitioner
is entitled to be released on bail.
6. Copies of statements placed on record of regular bail
petition in Cr.MP(M) No. 1215/2017, were found to be correct and
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genuine, as fairly admitted/stated by learned Additional Advocate
General, on the instructions of the Investigating Officer. Bare
.
perusal of the statements of PWs, especially, prosecutrix, clearly
suggests that she has resiled from her statement and as such, this
Court sees no reasons to keep the bail petitioner in custody, who is
already in judicial lock-up for the last more than 18 months.
7. 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 norpreventative. Deprivation of liberty must be considered
a punishment, unless it can be required to ensure that
an accused person will stand his trial when calledupon. 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 dulytried 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 person02/12/2017 23:04:49 :::HCHP
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 questionof 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 contentand 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 refusebail to an unconvicted person for the propose of
giving him a taste of imprisonment as a lesson.”
8. 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, whiledealing with the issue of grant of bail, had observed
that deprivation of liberty must be considered apunishment 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 before02/12/2017 23:04:49 :::HCHP
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.
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 enunciatedthat 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 caread 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, isno 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 factsand circumstances of each particular case. That
detention in custody of under trial prisoners for anindefinite period would amount to violation of Article
21 of the Constitution was highlighted.”
9. 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
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application and he shall remain available to face the trial and to
undergo imprisonment, if any, imposed upon him.
.
10. 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.
11. 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:
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(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 disclosingsuch 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.
12. 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.
13. 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
1st December, 2017
(reena)
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