Himachal Pradesh High Court

vs State Of Himachal Pradesh on 7 January, 2021

Bench: Sandeep Sharma

        IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                                            Cr. MP (M) No. 1932 of 2020




                                                                             .
                                                   Decided on 07.01.2021





    
    Kuldeep Chand                                                  ...Petitioner
                                      Versus





    State of Himachal Pradesh                                  ...Respondent
    
    Coram:
    The Hon'ble Mr. Justice Sandeep Sharma, Judge.





    Whether approved for reporting?1
    
    For the petitioner                  Mr. Y.P.S Dhaulta, Advocate.
    For the respondent                            Mr. Sudhir Bhatnagar and Mr.
                        r                         Arvind    Sharma,   Additional
                                                  Advocates Genera.

    
    Sandeep Sharma, J. (Oral)

(Through video conferencing)

Sequel to order dated 02.11.2020 whereby petitioner

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

FIR No.10/2020, dated 22.10.2020 under Sections 406, 409,

420 and 120B of Indian Penal Code and Sections 28 and 29 of

Himachal Pradesh of the Prevention of Specific Corrupt Practices

Act, 1983, registered at Police Station State Vigilance and Anti

Corruption Bureau, Una, District Una, Himachal Pradesh,

respondentState has filed the status report, which is taken on

record.

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

2. Learned Additional Advocate General, fairly

stated that the petitioner has joined the investigation and there is

nothing required to be recovered from the bail petitioner.

However, learned Additional Advocate General, while expressing

his apprehension that in the event of bail petitioner being

enlarged on bail, he may flee from justice or tamper with the

prosecution evidence, stated that, in case, this Court intends to

r to enlarge the petitioner on bail, he may be imposed strict

conditions.

Having heard learned counsel for the parties

and perused the material available on record, this Court sees no

reason for the custodial interrogation of the bail petitioner at this

stage. Apprehension expressed by the learned Additional

Advocate General that in the event of being enlarged on bail, bail

petitioner may flee from justice or tamper with prosecution

evidence, can be best met by putting the bail petitioner to

stringent conditions. Otherwise also, Hon'ble Apex Court and this

Court have repeatedly held that till the time, guilt of an

individual is proved in accordance with, he/she is deemed to be

innocent. In the case at hand guilt, if any, of the bail petitioner,

is yet to be determined in the totality of the evidence collected

on record by the prosecution.

4. 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/her guilt is yet to be 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 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 firsttime 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 enormous overcrowding in prisons, leading to social and other

problems as noticed by this Court in In ReInhuman Conditions in 1382 Prisons."

5. By now it is well settled that gravity alone

cannot be a 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 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."

6. 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.

7. In Manoranjana Sinh alias Gupta versus CBI,

(2017) 5 SCC 218, Hon'ble Apex Court has held as under:

"This Court in Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40, 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 and found guilty. It was underlined that the object of bail is neither punitive nor 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 has been convicted for it or not or to refuse bail to an

unconvicted person for the purpose of giving him a 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 and 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 that 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 undertrial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted."

8. 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;

(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 above, bail petitioner has carved out

a case for himself. Consequently, present petition is allowed.

Order dated 2.11.2020 is made absolute, subject to bail

petitioner furnishing fresh bail bonds in the sum of Rs.25,000/

with one surety in the like amount, to the satisfaction of the

Investigating Officer/learned Magistrate available at the station,

besides the 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 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