The Object of Bail is Neither Punitive nor Preventative but to Secure the Appearance of the Accused Person at his Trial: High Court of Shimla

 Hig h C o urt of H.P on 22 03 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr.MP(M) Nos. 462 and 463 of 2021 Decided on: 22.3.2021 __________________________________________________________________ 1. Cr.MP(M) No.4620 Pankaj …..Petitioner Versus State of Himachal Pradesh ….Respondent __________________________________________________________________ 2. Cr.MP(M) No.4620 Ranjeet …..Petitioner Versus State of Himachal Pradesh ….Respondent Hon’ble Mr. Justice Sandeep Sharma Judge. Whether approved for reporting 1 Yes. For the Petitioner(s) : Mr. Vivek Chandel Advocate. For the Respondent(s). : Mr. Sudhir Bhatnagar and Mr. Arvind Sharma Additional Advocates General with Mr. Kunal Thakur and Ms. Svaneel Jaswal Deputy Advocates 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 Hig h C o urt of H.P on 22 03 HCHP 7the 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 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. 7. 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. 8. The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of InvestigationSCC 218 The Hon’ble Apex Court has held as under: “ This Court in Sanjay Chandra v. CBI 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 Hig h C o urt of H.P on 22 03 HCHP 9was 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 Article 21 of the Constitution was highlighted.” 10. The Hon’ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another14 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 reasonable apprehension of the witnesses being influenced and danger of course of justice being thwarted by grant of bail. 11. In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court petitioners have carved out a case for grant of bail accordingly the petitions are allowed and the petitioners are ordered to be enlarged on bail in aforesaid FIR subject to their furnishing personal bond in the sum of Rs. 1 00 000 each with one local surety in the like amount to the satisfaction of learned trial Court with following conditions: a. They shall make themselves available for the purpose of interrogation if so required and regularly attend the trial Court on each and every Hig h C o urt of H.P on 22 03 HCHP 10date of hearing and if prevented by any reason to do so seek exemption from appearance by filing appropriate application b. They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever c. They 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. They shall not leave the territory of India without the prior permission of the Court. 12. It is clarified that if the petitioners misuse their liberty or violate any of the conditions imposed upon them the investigating agency shall be free to move this Court for cancellation of the bail. 13. Any observations made hereinabove shall not be construed to be a reflection on the merits of the cases and shall remain confined to the disposal of these applications alone. The bail petitions stand disposed of accordingly. Copy Dasti. 22nd March 2021 manjit Judge 

Summary: 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, bail is not to be withheld as a punishment. This honorable judgement was passed by High Court of Shimla in the case of Pankaj and Ranjeet v. State of Himachal Pradesh [Cr.MP(M) Nos. 462 and 463 of 2021] by The Hon’ble Mr. Justice Sandeep Sharma. The petition was filed by petitioner under Section 439 of Cr.PC, for grant of regular bail in case FIR No. 10 of 2021 dated 10.2.2021, under Sections 452, 342, 436, 307, 506, 201 read with Section 34 of IPC, registered at P.S. Kotkhai, District Shimla, H.P. . The Record/status filed by the respondent-State, reveals that on 10.2.2021, got her statement recorded under Section 154 Cr.PC, at PS Kothkai, H.P., stating therein that she had been working as part time sweeper at PNB, Kotkhai since 2013 and had been residing in room taken on rent in the building along with her son and daughter. She alleged that her husband, and they after having their meals had gone to sleep, but at 3:30am, she noticed fire on the door of her room and heard the noise of footsteps of some persons and as such, she cried and made all other family members wake up. Complainant disclosed to the police that her husband made them to evacuate from house from the ventilator of toilet. In the aforesaid incident, complainant and other family members suffered burn injuries. She claimed before the police that she has suspicion that persons made an attempt to kill her by setting her room on fire, and since then, they are behind the bars. Though investigation was almost that both the petitioners in connivance with each other, made an attempt to set the house of the petitioner on fire. The council referred the case of Dataram Singh vs. State of Uttar Pradesh &amp; Anr., thereby that a person is believed to be innocent until found guilty. Further it was 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 in the case of Sanjay Chandra versus Central Bureau of Investigation (2012) and Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010). The Hon’ble Apex Court opinioned that, ‘one is deemed to be innocent till the time, guilt of his/her is not proved in accordance with law. In the case at hand, guilt if any of the bail petitioners is yet to be established on record by the Investigating Agency by leading cogent and convincing evidence and as such, their freedom cannot be curtailed for an indefinite period during trial.’