Himachal Pradesh High Court

Date Of Decision: 06.11.2024 vs State Of Himachal Pradesh on 6 November, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

                                                                                2024:HHC:10975




    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                                    Cr. MP(M) No.2308 of 2024
                                  Date of Decision: 06.11.2024
________________________________________________________________
Suresh Kumar                                     ...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. Parmod Singh Thakur and Mr.
                          Mohit Jaitak, Advocates.
For the Respondent:                     Mr. Vishal Panwar, Mr. Rajan Kahol
                                        and Mr. B.C. Verma, Additional
                                        Advocates General, with Mr. Ravi
                                        Chauhan, Deputy Advocate General.
________________________________________________________________
Sandeep Sharma, J. (Oral)

Bail petitioner, namely Suresh Kumar, who is behind

the bars for approximately five months, has approached this

Court in the instant proceedings filed under Section 483 of the

BNSS, 2023, for grant of regular bail in case FIR No.108 of 2024,

dated 06.04.2024, under Sections 354, 354(A), 504, 506, 323 &

34 of IPC, registered at Police Station Sadar Una, District Una,

Himachal Pradesh.

2. Respondent/State has filed status report, perusal

whereof reveals that on 06.04.2024, victim-prosecutrix (name

withheld) lodged a complaint at Police Station, detailed

hereinabove, alleging therein that she works as a salesgirl at R.K.

Industries, Basal, District Una, Himachal Pradesh and on

06.04.2024 at 01:00 p.m., two boys came in the show-room of

the industry and asked her to show mattresses. She alleged that

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

2024:HHC:10975

when she went inside the godown to show mattresses, bail

petitioner along with other person attacked her and started

threatening her that he will kill her because she had deposed

falsely in a case lodged against him at the behest of her sister.

She alleged that though she tried to run away from the godown,

but the petitioner over-powered her and behaved indecently by

touching her breast. She further alleged that though bail

petitioner along with other person attempted to kidnap her, but

before they could execute the plan, her mother reached on the

spot and thereafter they both fled away from the spot. In the

aforesaid background, FIR, as detailed hereinabove, came to be

lodged against the petitioner on 06.04.2024. Bail petitioner was

arrested on 08.04.2024 and since then, he is behind bars.

3. Since Challan stands filed in the competent Court of

law and nothing remains to be recovered from the bail petitioner,

he has approached this Court in the instant proceedings for

grant of regular bail.

4. It is pertinent to take note of the fact that prior to

filing the petition at hand, petitioner had earlier approached this

Court by way of Cr.MP(M) No.1870 of 2024, however, same was

dismissed as withdrawn vide order dated 26.09.2024, reserving

liberty to approach this Court again, in case prosecution fails to

cause presence of victim-prosecutrix as well as her mother before

the trial Court for getting their statements recorded. Since

despite there being five opportunities, victim-prosecutrix as well 2024:HHC:10975

as her mother is not coming forward to depose, petitioner has

again approached this Court for grant of regular bail.

5. Mr. Vishal Panwar, learned Additional Advocate

General, while fairly admitting the factum with regard to filing of

the Challan in the competent Court of law, contends that though

nothing remains to be recovered from the bail petitioner but

keeping in view the gravity of the offence alleged to have been

committed by him, he does not deserve any leniency. Mr. Panwar

states that there is overwhelming evidence adduced on record,

suggestive of the fact that bail petitioner is habitual offender and

in past, as many as ten criminal cases stand registered against

him under different provisions of IPC. While fairly admitting that

despite there being direction issued by this Court, victim-

prosecutrix as well as her mother have failed to come present

before the learned trial Court to depose, Mr. Panwar submits that

now the trial Court has fixed the matter for 11.11.2024 for

recording the statements of victim-prosecutrix as well as her

mother, as such, prayer made on behalf of the petitioner for

enlargement on bail on the afore ground deserves to be rejected

outrightly. Lastly, Mr. Panwar states that since petitioner has

already jumped the bail in a previous case registered against him

at the behest of sister of victim-prosecutrix and thereafter he

attempted to cause harm to the victim-prosecutrix in the instant

case, it may not be in the interest of justice to enlarge bail

petitioner on bail, who in the event of being enlarged on bail, may 2024:HHC:10975

not only flee from justice, but may again cause harm to the

victim/prosecutrix, whose statement is yet to be recorded in the

trial Court.

6. Having heard learned counsel for the parties and

perused the material available on record, this Court finds that

prior to lodging of the FIR, which is subject matter of the present

petition, one FIR was lodged against the bail petitioner at the

behest of sister of victim-prosecutrix. In the FIR lodged at the

behest of sister of victim-prosecutrix, victim-prosecutrix

subsequently came to be cited as a prosecution witness.

Allegedly, being annoyed with the victim-prosecutrix, on account

of her having deposed against him, bail petitioner attacked her

on 06.04.2024 while she was present in R.K. Industries. Though

at first instance, victim-prosecutrix while lodging FIR alleged that

bail petitioner while extending threats, also touched her breast,

but subsequently while making statement recorded under

Section 164 Cr.P.C., she though stated that on the date of alleged

incident, bail petitioner along with other person attacked her, but

she nowhere stated that bail petitioner herein had touched her

breast.

7. Leaving everything aside, this Court finds that earlier

bail petition having been filed by petitioner was permitted to be

withdraw by learned counsel representing the petitioner with the

liberty that in case prosecution fails to cause presence of victim-

prosecutrix as well as her mother on the date fixed by the trial 2024:HHC:10975

Court, petitioner would be at liberty to again approach this Court

by way of fresh petition. Admittedly in the case at hand, despite

there being five opportunities, neither victim-prosecutrix nor her

mother is coming forward to depose in the trial Court initiated at

the behest of victim-prosecutrix, as a result thereof, petitioner is

incarcerating in jail for indefinite period during trial without his

being held guilty. No doubt, petitioner is accused of heinous

crime, but as has been observed hereinabove, there is major

contradiction with regard to touching of breast by the petitioner,

because at first instance, specific allegation was levelled by the

victim-prosecutrix that on the date of alleged incident, bail

petitioner touched her breast, but while getting her statement

recorded under Section 164 Cr.P.C., she failed to get the

aforesaid fact, if any, recorded before the Magistrate, as such,

this Court is persuaded to agree with Mr. Parmod Singh Thakur,

learned counsel representing the petitioner that at present, there

is nothing to suggest that offence, if any, punishable under

Section 354(A) of IPC has been committed by the petitioner.

Moreover, this Court cannot lose sight of the fact that bail

petitioner is behind bars for more than five months and trial is

being delayed on account of casual approach of victim-

prosecutrix as well as her mother. Very absence of victim-

prosecutrix as well as her mother from trial on the last five dates

itself creates doubt with regard to correctness of story put forth

by the prosecution, as such, prayer made on behalf of the 2024:HHC:10975

petitioner for grant of bail deserves to be considered. No doubt,

in past, as many as ten cases stand registered against petitioner,

but since petitioner already stands acquitted in seven cases,

such fact may not dissuade this Court from considering prayer

made on behalf of the petitioner for grant of bail.

8. Hon'ble Apex Court as well as this Court in catena of

cases have repeatedly held that one is deemed to be innocent till

the time guilt, if any, of his/her is not proved in accordance with

law. In the case at hand also, guilt, if any, of the accused is yet

to be proved in accordance with law, by leading cogent and

convincing material on record, as such, his incarceration for an

indefinite period would be in violation of fundamental rights

guaranteed under Article 21 of the Constitution of India.

9. Bail petitioner is already behind bars for more than

five months. There appears to be no justification to curtail

freedom of the bail petitioner during trial for indefinite period,

which if permitted, would amount to pretrial conviction.

Apprehension expressed by the learned Additional Advocate

General that in the event of petitioner's being enlarged on bail, he

may flee from justice, can be best met by putting the bail

petitioner to stringent conditions as has been fairly stated by the

learned counsel for the petitioner.

10. 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 2024:HHC:10975

cannot be curtailed for indefinite period, especially when his/her

guilt is yet to be proved. It has been further held by the Hon'ble

Apex Court in the aforesaid judgment that a person is believed to

be innocent until found guilty.

11. Hon'ble Apex Court in Sanjay Chandra versus

Central Bureau of Investigation (2012)1 Supreme Court

Cases 49 has held 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.

12. In Manoranjana Sinh alias Gupta versus CBI,

(2017) 5 SCC 218, Hon'ble Apex Court has held that the 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.

2024:HHC:10975

13. The Apex Court in Prasanta Kumar Sarkar versus

Ashis Chatterjee and another (2010) 14 SCC 496, has laid

down various principles to be kept in mind, while deciding

petition for bail viz. prima facie case, nature and gravity of

accusation, punishment involved, apprehension of repetition of

offence and witnesses being influenced.

14. 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, present petition is allowed and the

petitioner is ordered to be enlarged on bail in aforesaid FIR,

subject to his furnishing personal bond in the sum of

Rs.2,00,000/- with two local sureties in the like amount to the

satisfaction of concerned Chief Judicial Magistrate/trial Court,

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/her from disclosing such facts to the Court or the Police Officer; and