Decided On: 29.07.2024 vs State Of Himachal Pradesh
2024 Latest Caselaw 10489 HP

Himachal Pradesh High Court

Decided On: 29.07.2024 vs State Of Himachal Pradesh on 29 July, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

                                                      1
                                                                                   2024:HHC:6015
        IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.




                                                                                .
                                     Cr.MP(M) No.1421 of 2024





                                        Decided on: 29.07.2024
    ____________________________________________________________
    Vijay Kumar                                ...........Petitioner





                                                  Versus
    State of Himachal Pradesh                 ..........Respondent
    ____________________________________________________________





    Coram:
    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting? 1

    For the Petitioner                      :     Mr. Narender Guleria, Advocate.

    For the Respondent                      :     Mr. Rajan Kahol, Vishal Panwar
                                                  & Mr. B.C. Verma, Additional
                                                  Advocates General with Mr. Ravi



                                                  Chauhan,    Deputy     Advocate
                                                  General, for the respondent-
                                                  State.




                                SHO/SI Rajat Rawa, Police





                                Station Aut, District Mandi, HP
                                present in person.
    ____________________________________________________________





    Sandeep Sharma, Judge (oral):

Sequel to orders dated 02/15.07.2024, whereby

petitioner was ordered to be enlarged on interim bail in FIR

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

2024:HHC:6015 No. 100 of 2024 dated 29.05.2024 under Sections 420 and

.

120-B Indian Penal Code, registered at PS Aut, District

Mandi, HP, respondent/State has filed status report and

SHO/SI Rajat Rawa has come present with record. Record

perused and returned.

2. Mr. B.C.Verma, learned Additional Advocate

General, while fairly acknowledging factum with regard to

joining of investigation by the petitioner, states that though

material recovery has already been effected from the

petitioner, but amount alleged to have been mis-appropriated

by the petitioner is yet to be recovered. He further states that

five contractors from whom allegedly petitioner extracted

money are required to be investigated. He states that in case

this court intends to enlarge petitioner on bail, he may be

specifically called upon to join investigation as and when

required by the Investigating Agency.

3. In view of the aforesaid fair submissions having

been made by Mr. B.C.Verma, learned Additional Advocate

2024:HHC:6015 General, this Court sees no reason for custodial interrogation

.

of the bail petitioner and as such, he deserves to be enlarged

on bail.

4. 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.

5. 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:-

2024:HHC:6015

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

2024:HHC:6015 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 rto 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 Re-Inhuman

Conditions in 1382 Prisons

6. Needless to say, object of the bail is to secure the

attendance of the accused in the trial and the proper test to

2024:HHC:6015 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.

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 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

2024:HHC:6015 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."

8. 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;

2024:HHC:6015

(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. Consequently, in view of the above, orders dated

02/15.07.2024 passed by this Court, is made absolute, with

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 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.

2024:HHC:6015

10. It is clarified that if the petitioner misuses his

.

liberty or violates any of the conditions imposed upon him,

the Investigating Agency shall be free to move to this Court

for cancellation of the bail.

11. 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.

12. The bail petition stands disposed of accordingly.

The petitioner is permitted to produce copy of order

downloaded from the High Court website and the trial Court

shall not insist for certified copy of the order, however, it may

verify the order from the High Court website or otherwise.

    July 29, 2024                            (Sandeep Sharma),
          (sunil)                                 Judge