Bail is not to be withheld as a punishment: High Court of Himachal Pradesh

 Hig h C o urt of H.P on 12 07 CIS IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.MP(M) No.12321 Decided on: 9.07.2021 ____________________________________________________________________ Sher 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. Shakti Bhardwaj Proxy Counsel. For the respondent: Mr. Sudhir Bhatnagar and Mr. Arvind Sharma Additional Advocate General. ____________________________________________________________________ Sandeep Sharma Judgeis 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 436 of the Hig h C o urt of H.P on 12 07 CIS 4 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 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 Investigation14 SCC 496 has laid down the following principles to be kept in mind while deciding petition for bail:whether there is any prima facie or reasonable ground to believe that the accused had committed the offence nature and gravity of the accusation severity of the punishment in the event of conviction danger of the accused absconding or fleeing if released on bail character behaviour means position and standing of the accused likelihood of the offence being repeated Hig h C o urt of H.P on 12 07 CIS 6 reasonable apprehension of the witnesses being influenced and danger of course of justice being thwarted by grant of bail. 9. Consequently in view of the above order dated 6.7.2021 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 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. The bail petition stands disposed of accordingly. Copy dasti. Judge 9th July 2021 

Summary: The objective of bail is to secure the attendance of the accused in the trial and the rationale behind the test to issue bail is to see if the accused will appear before the court for a smooth trial.  An accused is supposed to be treated as innocent until proven guilty and this applies to the concept of bail as well. This was decreed by the Hon’ble Mr. Justice Sandeep Sharma in the case of Sher Singh vs. State of Himachal Pradesh [Cr.MP(M) No.1237 of 2021] which was decided on the 09th of July 2021 in the Hon’ble High Court of Himachal Pradesh at Shimla. The brief facts of the case are, an FIR was registered under section 498-A, Section 506 and Section 323 of the Indian Penal Code on the 30th of June 2021 with the police station, Kasumpati, district Shimla, Himachal Pradesh. An interim bail was granted to the petitioner through an order dates 6.07.2021 in the event of arrest in the above-mentioned case. Mr. Sudhir Bhatnagar, learned Additional Advocate General fairly states that pursuant to order dated 6.7.2021, bail petitioner has already joined the investigation and he is fully co- operating with the investigating agency. It was also submitted that 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. The learned court after listening to the submissions of both parties decreed that the norm around bail is ‘bail not jail’. The freedom of the individual is of utmost importance and the court relied on the judgment in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh &amp; Anr wherein, it was held that “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”. The court analyzed the objective behind bail with the help of the judgement decreed by the Supreme court in Sanjay Chandra Vs. CBI (2012) 1 SCC 49 wherein, “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.”