IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. [CASE NUMBER] Decided on: 6.12.2019 . [ENTITY] Petitioner Versus [ENTITY] Respondent Coram: Hon'ble Mr. Justice [ENTITY], Judge. Whether approved for reporting? 1 For the Petitioner : Mr. [ENTITY], Advocate. For the Respondent Mr. [ENTITY] and Mr. [ENTITY], learned Additional Advocate Generals, for the State. [ENTITY], Judge (oral):
Sequel to order dated 4.12.2019, whereby this Court after taking the bail petitioner into custody, enlarged him on bail in FIR No. 274/2019 dated 3.12.2019, under [SECTION] of [ACT] and [SECTION] of [ACT], registered with Police Station Boileauganj, Shimla, HP, SI [ENTITY], I/o P.S. West Shimla, has come present along with records. Record perused and returned.
2. Mr. [ENTITY], learned Additional Advocate General, has also placed on record status report prepared on the basis of investigation carried out by the Investigating Agency. Mr. [ENTITY] while opposing the bail application contends that keeping in view the gravity of Whether the reporters of the local papers may be allowed to see the judgment?
offence alleged to have been committed by the bail petitioner, prayer made on behalf of the petitioner may be rejected outrightly. Learned .
Additional Advocate General, on instructions of Investigating Officer, fairly states that pursuant to order dated 4.12.2019, bail petitioner has joined the investigation and is fully co-operating. He further contends that though no recovery remains to be effected from the bail petitioner, but his presence is still required for getting him medically examined.
3. Having heard learned counsel for the parties and perused material available on record, especially statement of victim-prosecutrix recorded under [SECTION] [ACT], this Court finds that victim-prosecutrix (name withheld), who is 29 years, had prior proximity with the bail petitioner. As per own statement of victim-prosecutrix, she knew the present bail petitioner since year, 2011 and since then, they have been meeting each other frequently. If the statements of victim-prosecutrix given to the police as well as Judicial Magistrate under [SECTION] and [SECTION] [ACT], respectively, are read juxtaposing each other, it can be safely concluded that since year, 2011, bail petitioner as well as victim-
prosecutrix were in constant touch and they had developed intimate relationship. Though victim-prosecutrix has alleged that she has been repeatedly sexually assaulted against her wishes by the bail petitioner on the pretext of marriage, but having taken note of the fact that victim-
prosecutrix is major, this Court is in agreement with learned counsel for the petitioner that she was fully capable of understanding the consequences .
of her being in the company of the bail petitioner, to whom, she knew for more than eight years. Otherwise also, it is not understood that why victim-
prosecutrix kept mum for eight years. It is only after the refusal of bail petitioner to marry the prosecutrix, FIR detailed herein above, came to be lodged against the bail petitioner.
4. Though aforesaid aspects of the mater are to be considered and decided by the court below in the totality of evidence collected on record by the Investigating Agency, but having carefully perused material available on record, this Court is convinced and satisfied that victim-
prosecutrix of her own volition, remained in the constant touch with the bail petitioner, who allegedly promised her to marry her. Guilt, if any, of the bail petitioner is yet to be proved in accordance with law by leading cogent and convincing evidence and as such, this Court sees no reason to keep the present bail petitioner behind the bars during trial, especially when he has joined the investigation and nothing remains to be recovered from him. Learned counsel for the petitioners on instructions of bail petitioner, who is present in the court, fairly states that bail petitioner shall remain always available for investigation as and when called by the Investigating Agency.
5. Recently, the Hon'ble Apex Court in [CASE NUMBER], [PRECEDENT]., decided on .
6.2.2018, has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon'ble Apex Court further held that while considering prayer for grant of bail, 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.
r Hon'ble Apex Court has further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid 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 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] of the [ACT]. An equally soft approach to incarceration has been taken by Parliament by inserting [SECTION] in the [ACT].
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 [SECTION] of the [ACT] 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.
7. The Hon'ble Apex Court in [PRECEDENT]; 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 [ACT] 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. In [PRECEDENT], The Hon'ble Apex Court has held as under:-
" This Court in [PRECEDENT], also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that 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 found guilty. It was underlined that the object of bail is neither punitive or preventive.
This Court sounded a caveat 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 a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and the grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of [SECTION] of the [ACT] was highlighted."
9. The Hon'ble Apex Court in [PRECEDENT], 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.
10. Consequently, in view of the above, order dated 4.12.2019 passed by this Court, is made absolute, subject to applicant's furnishing personal bonds in the sum of Rs. 1,00,000/- with one surety in the like amount to the satisfaction of the Arresting officer with the 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
(d) He shall not leave the territory of India without the prior permission of the Court.
(e) The bail petitioner shall also handover the passport to the Investigating Agency.
11. It is clarified that if the petitioner misuses the liberty or violate any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.
12. 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. The petition stands accordingly disposed of.
Copy dasti.
6th December, 2019 ([ENTITY]), manjit Judge