Himachal Pradesh High Court
Decided On: 30.09.2024 vs State Of Himachal Pradesh on 30 September, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:9356
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.2109 of 2024
.
Decided on: 30.09.2024
__________________________________________________________________
Varinder Singh ...........Petitioner
Versus
State of Himachal Pradesh ..........Respondent
__________________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioner : Mr. N.S. Chandel, Senior Advocate,
with Mr. Rajesh Verma, Advocate.
For the Respondent :
Mr. Rajan Kahol, Mr. Vishal Panwar
r and Mr. B.C. Verma, Additional
Advocates General, with Mr. Ravi
Chauhan, Deputy Advocate General,
for the respondent/State, along with
ASI Maheshwar Prasad, I.O., Police
Station Nalagarh, Police District
Baddi, District Solan, Himachal
Pradesh.
__________________________________________________________________
Sandeep Sharma, Judge (oral):
Sequel to order dated 18.09.2024, whereby petitioner
was ordered to be enlarged on interim bail in connection with FIR
No.249 of 2024, dated 30.08.2024, registered at Police Station
Nalagarh, District Solan, Himachal Pradesh, under Sections
126(2), 351(2), 191(2), 190m, 252m, 115(2) of BNS,
respondent/State has filed status report prepared on the basis of
the investigation carried out by the Investigating Agency.
Whether the reporters of the local papers may be allowed to see the judgment?
2024:HHC:9356
2. Mr. Rajan Kahol, learned Additional Advocate General
fairly states that pursuant to order dated 18.09.2024, bail
.
petitioner has already joined the investigation and he is fully co-
operating with the investigating agency. Mr. Kahol further
contends that at this stage nothing is required to be recovered
from the bail petitioner and as such, his custodial interrogation is
not required and he can be ordered to be enlarged on bail subject
to the condition that he shall make himself available for
investigation and trial, as and when called by the Investigating
Agency.
3. In view of the aforesaid fair submissions having been
made by Mr. Rajan Kahol, learned Additional Advocate 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
2024:HHC:9356
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
r 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
2024:HHC:9356
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
r 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 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.
2024:HHC:9356
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 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:
2024:HHC:9356
(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. Consequently, in view of the above, order dated
18.09.2024 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.
10. It is clarified that if the petitioner misuses his liberty
or violates any of the conditions imposed upon him, the
2024:HHC:9356
Investigating Agency shall be free to move 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.
September 30, 2024 (Sandeep Sharma),
Rajeev Raturi Judge
