Himachal Pradesh High Court

_________________________________________________ vs State Of Himachal Pradesh on 1 March, 2023

Bench: Sushil Kukreja

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.454 of 2023

Reserved on: 28.02.2023 Date of Decision: 01.03.2023

_________________________________________________ Kapil Sharma ....Petitioner Versus

State of Himachal Pradesh

...Respondent _________________________________________________

Coram Hon'ble Mr. Justice Sushil Kukreja, Judge Whether approved for reporting?1 ________________________________________________

For the petitioner : Mr. H.C. Sharma, Advocate. For the respondent:

Mr. B.C. Verma, Additional Advocate

General with Mr. R.P. Singh, Deputy Advocate General.

________________________________________________ Sushil Kukreja, Judge

The present petition has been filed by the

petitioner under Section 439 of the Code of Criminal

Procedure, seeking bail in case FIR No.08/23, dated

07.02.2023, registered at Police Station Kandaghat, District

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

Solan, H.P., under Sections 363 & 366 of the Indian Penal

Code (IPC).

2. The brief facts of the case, as per the status

report filed by the respondent-State, are that on 07.02.2023,

the complainant, who is father of the victim, lodged a

complaint at Police Station Kandaghat, District Solan, to the

effect that his daughter, i.e. the victim, who was aged about

16½ years and doing a course in Electronics from

Polytechnic Institute, Kandaghat, was missing since

04.02.2023 from her rented room and one Som Dutt

disclosed to the complainant that the victim had been

brought by his nephew Kapil (petitioner herein) to Pulwahal.

He also disclosed that Kapil and the victim intended to get

married. Thereafter, the complainant telephonically informed

the petitioner to leave the victim at their house, but he

refused. However, the victim agreed to come back on

06.02.2023, but on said date, she telephonically informed

that she would not come back.

3. During the course of investigation, the petitioner

and the victim were recovered on 08.02.2023 from village

Sayarala, District Sirmour. Thereafter, the petitioner was

arrested on 08.02.2023 and he was got medically examined.

However, the victim refused to get herself medically

examined. The statement of victim was got recorded under

Section 164 Cr.P.C. and her date of birth certificate was also

obtained, according to which, the date of birth of the victim

was 10.06.2006. r

4. The learned counsel for the petitioner

contended that the petitioner is innocent and he has been

falsely implicated in the present case. He further submitted

that the petitioner is permanent resident of the area and not

in a position to tamper with the prosecution evidence. He

also contended that since the investigation of the case is

complete, no fruitful purpose will be served by keeping him

behind the bars.

5. Conversely, the learned Additional Advocate

General has opposed the bail application on the ground that

the petitioner is involved in a serious offence and keeping in

view the gravity of the offence, he is not entitled to be

released on bail. He further contended that if the petitioner is

enlarged on bail, he will try to influence the witnesses and

may also tamper with the prosecution evidence.

6. I have heard the learned counsel for the

petitioner as well as the learned Additional Advocate

General.

7. In Dataram Singh Versus State of Uttar

Pradesh and another, (2018) 3 Supreme Court Cases 22,

the Hon'ble Supreme Court has held 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. The relevant paras of the judgment are

reproduced as under:-

"1........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.

5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah

v. Union of India going back to the days of the Magna

Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab in which it is observed that it was held way back in Nagendra

v. King-Emperor that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson wherein it was observed that grant of bail

is the rule and refusal is the exception. The provision

for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a

century old, going back to colonial days.

8. In Union of India Versus K.A. Najeeb, (2021) 3

Supreme Court Cases 713, the Hon'ble Supreme Court

observed that once it is obvious that a timely trial would not

be possible and the accused has suffered incarceration for a

significant period of time, the Courts would ordinarily be

obligated to enlarge them on bail. The relevant para of the

judgment is reproduced as under:-

"15. This Court has clarified in numerous

judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme

Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India, it was held that undertrials cannot indefinitely be detained pending

trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing

to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial,

Courts are tasked with deciding whether an individual

ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and

the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge them on bail."

9. Similarly, in Satender Kumar Antil Versus

Central Bureau of Investigation & another, (2022) 10

Supreme Court Cases 51, after taking note of the decision

given in Siddharth vs. State of U.P. & Anr. [(2022) 1 SCC 676],

it has been held by the Hon'ble Supreme Court that personal

liberty is an important aspect of our constitutional mandate.

10. In the instant case, after giving my considered

thought to the rival contentions raised and also after going

through the status report filed by the prosecution, I am of the

firm opinion that the petitioner is entitled to be released on

bail. A perusal of the record reveals that the only allegation

against the petitioner is that he induced the victim, who is

aged about 16½ years and took her away with him. A

perusal of the statement of the victim recorded under Section

164, Cr.P.C. shows that the victim herself had accompanied

the petitioner. Though, the consent of the victim is immaterial

as she is below 18 years of age, however, keeping in view

the facts and circumstances of the present case, the

petitioner deserves to be released on bail as he is behind the

bars since 08.02.2023 and the investigation is almost

complete. Moreover, the charge-sheet in the case is yet to

be filed and the trial may take sufficiently long time to

conclude, therefore, no fruitful purpose will be served if the

petitioner is kept behind the bars for an unlimited period.

There is also no evidence on record to suggest that the

petitioner will tamper with the prosecution evidence or will

flee from justice, if released on bail as he is permanent

resident of District Sirmour.

11. Considering the overall facts and circumstances

of the case, this Court finds that the present is a fit case

where judicial discretion to admit the petitioner on bail is

required to be exercised in his favour. Accordingly, the bail

application is allowed and it is ordered that the petitioner,

who has been arrested by the police, in case FIR No.08/23,

dated 07.02.2023, registered at Police Station Kandaghat,

District Solan, H.P., under Sections 363 & 366, IPC, shall be

forthwith released on bail, subject to his furnishing personal

bond to the tune of Rs.50,000/ (Rupees fifty thousand) with

one surety in the like amount to the satisfaction of learned

trial Court. This bail order is, however, subject to the

following conditions:-

(i) that the petitioner will appear before the Court and the Investigating Officer whenever required ;

(ii) that he will not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to

dissuade him from disclosing any facts to the Court or the police;