IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.202 of 2018
Date of Decision No.24.03.2018

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Pritam Kumar …….. Petitioner

Versus

State of Himachal Pradesh …..Respondent.
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Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the petitioner: Mr. Sheetal Vyas, Advocate.

For the respondent:
General.

Mr. Dinesh Thakur, Additional Advocate

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Sandeep Sharma, Judge (oral):

Bail petitioner, namely Pritam Kumar, who is in

judicial custody since 2.1.2018, has approached this Court for

grant of regular bail under Section 439 of the Code of Criminal

Procedure in case FIR No.3 of 2018, dated 2.1.2018, under

Sections 363, 366-A of the Indian Penal Code, registered at Police

Station, Bhoranj, District Hamirpur, Himachal Pradesh.

2. Sequel to order dated 6.03.2018, ASI Balbir Singh,

Police Station, Bhoranj, has come present in Court alongwith the

record of the case. Record perused and returned.

3. Mr. Dinesh Thakur, learned Additional Advocate

General, has also placed on record status report prepared on the

basis of the investigation carried out by the investigating agency,

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

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perusal whereof, suggest that FIR, detailed hereinabove, came to

be lodged at the behest of the complainant, namely Amrit Lal, who

alleged that her minor niece namely Ms. Ranjana Devi has been

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kidnapped by the present bail petitioner on 27.12.2017. Since, the

girl, named above, did not return to her house on 27th December,

2017, complainant lodged aforesaid complaint against the bail

petitioner. He alleged that his niece and bail petitioner were in

constant touch with each other, but today bail petitioner taking

undue advantage of innocence of her niece, who is minor, allured

her on the pretext that he would marry her. On 2.1.2018, police

found victim Ranjana Devi at Baldwara Bhambla Patarighat road.

Subsequently, on the same day, bail petitioner was arrested,

however fact remains that victim refused to undergo medical test

and she subsequently in her statement recorded under Section

164 of Code of Criminal Procedure before the learned Judicial

Magistrate 1st Class, Court No. II, Hamirpur, categorically denied

that she was kidnapped by the bail petitioner, rather she claimed

that she had gone with her friend. She further stated before the

learned JMIC that on 27th December, 2017 her aunt had abused

her and as such, she went to the house of her maternal Uncle at

Nawahi, whereafter on 28th December, 2017 she had gone to her

friend’s house at Bhukhar. Perusal of the aforesaid statement

recorded under Section 164 Code of Criminal Procedure, nowhere

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suggests that the victim namely Ranjana Devi was

kidnapped/enticed by the present bail petitioner.

4. Ms. Sheetal Vyas, learned counsel representing the

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bail petitioner, while referring to the record/status report,

strenuously argued that no case is made out against the bail

petitioner under Sections 363, 366-A of IPC and as such, he

deserve to be enlarged on bail.

5. Mr. Dinesh Thakur, learned Additional Advocate

General, fairly admitted that victim Ranjana Devi in her statement

recorded under section 164 Code of Criminal Procedure, has

nowhere stated that she was kidnapped by the bail petitioner,

rather perusal of the same suggest that she of her own volition left

the house of her Uncle and thereafter she went to the house of her

maternal Uncle. Mr. Dinesh Thakur, learned Additional Advocate

General, on the instructions of the investigating Officer, who is

present in Court, contended that nothing is required to be

recovered from the bail petitioner and as such, his custodial

interrogation is not required and he can be ordered to be enlarged

on bail subject to the condition that he shall make himself

available for investigation and trial as and when called by the

investigating agency.

6. I have heard learned counsel representing the parties

and carefully gone through the record made available.

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7. Close scrutiny of the record, especially statement

under Section 164 Code of Criminal Procedure, nowhere suggest

that case, if any, is made out against the bail petitioner under

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Section 363 and 366-A of IPC and as such, this Court sees no

reason to let the bail petitioner incarcerate in jail for indefinite

period, especially when he has already suffered more than two

months, as is evident from the statement of the prosecutrix.

Otherwise also, challan stands filed in the competent Court of law.

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

that freedom of an individual cannot be curtailed for indefinite

period as it is of utmost importance. Similarly, guilt, if any, of bail

petitioner is yet to be proved in accordance with law and as such,

prayer having been made by learned counsel for the petitioner for

grant of bail deserves to be considered.

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 categorically held that freedom of an

individual is of utmost importance and same cannot be curtailed

for indefinite period. Hon’ble Apex Court has further held that till

the time guilt of accused is not proved in accordance with law, he

is deemed to be innocent. The relevant paras No.2 to 5 of the

judgment are reproduced 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

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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

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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
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

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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
enormous overcrowding in prisons, leading to social

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and other problems as noticed by this Court in In Re-

Inhuman Conditions in 1382 Prisons.

10. 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.

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

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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
r justice;

(iv) The possibility of the accused’s likelihood to
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 concern;

(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 of
harassment, humiliation and unjustified
detention of the accused;

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(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

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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. 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 as well as law laid

down by the Hon’ble Apex Court, 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,

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subject to his furnishing personal bonds in the sum of Rs

25,000/- with one local surety in the like amount to the

satisfaction of concerned Judicial Magistrate, with following

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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 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
24th March, 2018
(shankar)

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