Rajiv vs State Of Himachal Pradesh
2022 Latest Caselaw 9899 HP

          IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                                                   Cr. MP (M) No.2029 of 2022 a/w
                                                          Cr.MP(M) No.2031 of 2022




                                                                             .
                                                        Date of Decision: 25.11.2022





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     1. Cr. MP (M) No. 2029 of 2022





     Rajiv                                                                           ...Petitioner
                                                 Versus
     State of Himachal Pradesh                                             ...Respondent
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     2. Cr. MP (M) No. 2031 of 2022





     Ritik                                                                           ...Petitioner
                                                 Versus
     State of Himachal Pradesh                                                  ...Respondent

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     Coram:
     The Hon'ble Mr. Justice Sandeep Sharma, Judge.
     Whether approved for reporting?1 .
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     For the Petitioner (s)                    Mr. Ajay Kochhar, Mr. Vivek
                                               Sharma and Ms. Avni Kochhar and
                                               Mr. Ashwani Dhiman, Advocates




     For the Respondent                            Mr. Sudhir Bhatnagar and Mr.
                                                   Narender   Guleria,    Additional





                                                   Advocate Generals with Mr. Sunny
                                                   Dhatwalia, Assistant    Advocate
                                                   General.





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     Sandeep Sharma, J. (Oral)

Sequel to order(s) dated 8.9.2022, whereby bail

petitioner were ordered to be enlarged on interim bail in the event

of their arrest in case FIR No.5 of 2022, dated 7.5.2022, under

sections 420 and 120-B IPC, registered at police Station CID

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

Bharari, Shimla, District Shimla, Himachal Pradesh, respondent-

State has filed status report and ASI, Ranjna SI Anil Kumar have

.

come present alongwith the record. Record perused and returned.

2. Mr. Sudhir Bhatnagar, learned Additional Advocate

General fairly states that in terms of order dated 8.09.2022, bail

petitioners had been regularly joining the investigation and as of

today, nothing remains to be recovered from them. He further

admits that 28 accused, out of 30 already stand released on bail.

He further admits that main accused Bharat Yadav, who was

absconding, has surrendered in the Court of learned District and

Sessions Judge, Kangra, District Kangra, H.P., and now he is

behind the bars. Mr. Bhatnagar, further submits that keeping in

view the gravity of offence alleged to have been committed by the

bail petitioners, they do not deserve any leniency, but in case this

Court intends to enlarge them on bail, they may be put to stringent

conditions.

3. Having heard learned counsel representing the parties

and perused the material available on record, this Court finds that

precise allegation against the petitioners is that they played an

active role in leaking the papers with regard to recruitment process

to the post of Constables. It has been alleged against the bail

petitioners that they had collected money from one candidate each,

who participated in examination and thereafter handed over the

same to main accused Bharat Yadav. However main accused

Bharat Yadav is now behind the bars.

.

4. Mr. Ajay Kochhar, learned counsel representing the

petitioner vehemently argued that petitioners have been falsely

implicated because there is no evidence, worth credence, adduced

on record suggestive of the fact that bail petitioners leaked the

papers and collected money from one candidate each. He

submitted that otherwise also, now investigation in the case is

complete and challan stands filed in the competent court of law

and no fruitful purpose would be served by sending the bail

petitioners behind the bars, especially when they have already

made themselves available for investigation and have fully co-

operated.

5. In view of the above, this Court sees no reason for

custodial interrogation of the bail petitioners and as such, they

deserve to be enlarged on bail.

6. By now it is well settled that freedom of an individual is of

utmost importance and cannot be curtailed for indefinite period. Till the

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

deemed to be innocent. In the case at hand, the guilt, if any, of the bail

petitioner is yet to be proved, in accordance with law.

7. 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

.

merely on the basis of suspicion. 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 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 r 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 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 person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an r 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 Re-Inhuman Conditions in 1382 Prisons

8. 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.

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 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. 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.

11. r Consequently, in view of the above, order(s) dated

8.09.2022 passed by this is made absolute, subject to the

petitioners furnishing personal bond in the sum of Rs. 1,00,000/-

each with one local surety in the like amount to the satisfaction of

the Investigation Officer, with following conditions:-

a. they shall make themselves 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. they shall not tamper with the prosecution evidence

nor hamper the investigation of the case in any manner whatsoever;

c. they shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or the Police Officer; and

d. they shall not leave the territory of India without the prior permission of the Court.

12. It is clarified that if the petitioners misuses their liberty

or violates any of the conditions imposed upon them, 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 these applications alone.

The bail petitions stand disposed of accordingly.

                r                                     (Sandeep Sharma)
                                                           Judge

     25th November, 2022
           (shankar)