CRMPM/2479/2021 of VIJAY KUMAR AND ANOTHER Vs STATE OF HP on 31 December 2021

ORDER

Sequel to order dated 28.12.2021, whereby, petitionerswere ordered to be enlarged on bail in case FIR No. 62 of 2021, dated24.12.2021, under Sections 420, 405 and 120 of IPC, registered withPolice Station Moorang, District Kinnaur, H.P., respondent-State hasfiled status report. ASI Pushp Dev, Police Station Moorang, DistrictKinnarur, H.P., has also come present with record, which is perusedand returned.

2. Learned Additional Advocate General, fairly stated thatthe petitioners have joined the investigation and there is nothingrequired to be recovered from the bail petitioners. However, learnedAdditional Advocate General, while expressing his apprehension that inthe event of bail petitioners being enlarged on bail, they may flee fromjustice or tamper with the prosecution evidence, stated that, in case,this Court intends to enlarge the petitioners on bail, they may beimposed strict conditions.

3. Having heard learned counsel for the parties and perusedthe material available on record, this Court sees no reason for thecustodial interrogation of the bail petitioners at this stage.Apprehension expressed by the learned Additional Advocate Generalthat in the event of being enlarged on bail, bail petitioners may fleefrom justice or tamper with prosecution evidence, can be best met byputting the bail petitioner to stringent conditions. Otherwise also, Hon'ble Apex Court and this Court have repeatedly held that till thetime, guilt of an individual is proved in accordance with, he/she isdeemed to be innocent. In the case at hand guilt, if any, of the bailpetitioner, is yet to be determined in the totality of the evidencecollected on record by the prosecution.

4. Recently, the Hon'ble Apex Court in Criminal Appeal No.227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on6.2.2018 has held that freedom of an individual can not be curtailed forindefinite period, especially when his/her guilt is yet to be proved. It hasfurther held by the Hon'ble Apex Court in the aforesaid judgment that aperson is believed to be innocent until found guilty. The Hon'ble ApexCourt has held as under:

“2. A fundamental postulate of criminal jurisprudenceis the presumption of innocence, meaning therebythat a person is believed to be innocent until foundguilty. However, there are instances in our criminal lawwhere a reverse onus has been placed on an accusedwith regard to some specific offences but that isanother matter and does not detract from thefundamental postulate in respect of other offences.Yet another important facet of our criminaljurisprudence is that the grant of bail is the generalrule and putting a person in jail or in a prison or in acorrection home (whichever expression one may wishto use) is an exception. Unfortunately, some of thesebasic principles appear to have been lost sight of withthe result that more and more persons are beingincarcerated and for longer periods. This does not doany good to our criminal jurisprudence or to oursociety.

3. There is no doubt that the grant or denial of bailis entirely the discretion of the judge considering acase but even so, the exercise of judicial discretion has been circumscribed by a large number ofdecisions rendered by this Court and by every HighCourt in the country. Yet, occasionally there is anecessity to introspect whether denying bail to anaccused person is the right thing to do on the factsand in the circumstances of a case.

4. While so introspecting, among the factors thatneed to be considered is whether the accused wasarrested during investigations when that personperhaps has the best opportunity to tamper with theevidence or influence witnesses. If the investigatingofficer does not find it necessary to arrest an accusedperson during investigations, a strong case should bemade out for placing that person in judicial custodyafter a charge sheet is filed. Similarly, it is important toascertain whether the accused was participating in theinvestigations to the satisfaction of the investigatingofficer and was not absconding or not appearingwhen required by the investigating officer. Surely, ifan accused is not hiding from the investigating officeror is hiding due to some genuine and expressed fearof being victimised, it would be a factor that a judgewould need to consider in an appropriate case. It isalso necessary for the judge to consider whether theaccused is a first-time offender or has been accusedof other offences and if so, the nature of suchoffences and his or her general conduct. The povertyor the deemed indigent status of an accused is alsoan extremely important factor and even Parliamenthas taken notice of it by incorporating an Explanationto Section 436 of the Code of Criminal Procedure,1973. An equally soft approach to incarceration hasbeen taken by Parliament by inserting Section436A in the Code of Criminal Procedure, 1973.

5. To put it shortly, a humane attitude is requiredto be adopted by a judge, while dealing with anapplication for remanding a suspect or an accusedperson to police custody or judicial custody. There areseveral reasons for this including maintaining thedignity of an accused person, howsoever poor thatperson might be, the requirements of Article 21 of the Constitution and the fact that there is enormousovercrowding in prisons, leading to social and otherproblems as noticed by this Court in In Re-InhumanConditions in 1382 Prisons.”

5By now it is well settled that gravity alone cannot be adecisive ground to deny bail, rather competing factors are required tobe balanced by the court while exercising its discretion. It has beenrepeatedly held by the Hon’ble Apex Court that object of bail is tosecure the appearance of the accused person at his trial by reasonableamount of bail. The object of bail is neither punitive nor preventative.The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau ofInvestigation (2012)1 Supreme Court Cases 49; has been held as under:-

“The object of bail is to secure the appearance of theaccused person at his trial by reasonable amount ofbail. The object of bail is neither punitive norpreventative. Deprivation of liberty must beconsidered a punishment, unless it can be required toensure that an accused person will stand his trialwhen called upon. The Courts owe more than verbalrespect to the principle that punishment begins afterconviction, and that every man is deemed to beinnocent until duly tried and duly found guilty.Detention in custody pending completion of trial couldbe a cause of great hardship. From time to time,necessity demands that some unconvicted personsshould be held in custody pending trial to secure theirattendance at the trial but in such cases, “necessity” isthe operative test. In India , it would be quite contraryto the concept of personal liberty enshrined in theConstitution that any person should be punished inrespect of any matter, upon which, he has not beenconvicted or that in any circumstances, he should bedeprived of his liberty upon only the belief that he willtamper with the witnesses if left at liberty, save in themost extraordinary circumstances. Apart from thequestion of prevention being the object of refusal ofbail, one must not lose sight of the fact that any imprisonment before conviction has a substantialpunitive content and it would be improper for anycourt to refuse bail as a mark of disapproval of formerconduct whether the accused has been convicted forit or not or to refuse bail to an unconvicted person forthe propose of giving him a taste of imprisonment as alesson.”

6. Needless to say object of the bail is to secure theattendance of the accused in the trial and the proper test to be appliedin the solution of the question whether bail should be granted orrefused is whether it is probable that the party will appear to take histrial. Otherwise also, normal rule is of bail and not jail. Apart fromabove, Court has to keep in mind nature of accusations, nature ofevidence in support thereof, severity of the punishment, whichconviction will entail, character of the accused, circumstances whichare peculiar to the accused involved in that crime.

7In Manoranjana Sinh alias Gupta versus CBI, (2017) 5

SCC 218, Hon'ble Apex Court has held as under:

“This Court in Sanjay Chandra vs. Central Bureau ofInvestigation (2012) 1 SCC 40, also involving aneconomic offence of formidable magnitude, whiledealing with the issue of grant of bail, had observedthat deprivation of liberty must be considered apunishment unless it is required to ensure that anaccused person would stand his trial when calledupon and that the courts owe more than verbalrespect to the principle that punishment begins afterconviction and that every man is deemed to beinnocent until duly tried and found guilty. It wasunderlined that the object of bail is neither punitive norpreventive. This Court sounded a caveat that anyimprisonment before conviction has a substantialpunitive content and it would be improper for anycourt to refuse bail as a mark of disapproval of aconduct whether an accused has been convicted for itor not or to refuse bail to an unconvicted person for

the purpose of giving him a taste of imprisonment as alesson. It was enunciated that since the jurisdiction togrant bail to an accused pending trial or in appealagainst conviction is discretionary in nature, it has tobe exercised with care and caution by balancing thevaluable right of liberty of an individual and theinterest of the society in general. It was elucidatedthat the seriousness of the charge, is no doubt one ofthe relevant considerations while examining theapplication of bail but it was not only the test or thefactor and that grant or denial of such privilege, isregulated to a large extent by the facts andcircumstances of each particular case. That detentionin custody of under-trial prisoners for an indefiniteperiod would amount to violation of Article 21 of theConstitution was highlighted.”

8

The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down thefollowing principles to be kept in mind, while deciding petition for bail:

(i) whether there is any prima facie or reasonableground to believe that the accused hadcommitted the offence; ground to believe that the accused hadcommitted the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event ofconviction; conviction;

(iv) danger of the accused absconding or fleeing, ifreleased on bail; released on bail;

(v) character, behaviour, means, position andstanding of the accused; standing of the accused;

(vi) likelihood of the offence being repeated;

2. reasonable apprehension of the witnessesbeing influenced; and being influenced; and

3. danger, of course, of justice being thwarted bygrant of bail.grant of bail.

9. In view of above, bail petitioners have carved out a case for themselves. Consequently, present petition is allowed. Order dated28.12.2021, is made absolute, subject to bail petitioners furnishingfresh bail bonds in the sum of Rs.25,000/- with one local surety in the like amount, to the satisfaction of the Investigating Officer, besides the following conditions:

a. They shall make themselves available for thepurpose of interrogation, if so required andregularly attend the trial on each and every date ofhearing and if prevented by any reason to do so,seek exemption from appearance by filingappropriate application;purpose of interrogation, if so required andregularly attend the trial on each and every date ofhearing and if prevented by any reason to do so,seek exemption from appearance by filingappropriate application;

b. They shall not tamper with the prosecution evidencenor hamper the investigation of the case in anymanner whatsoever;nor hamper the investigation of the case in anymanner whatsoever; c. They shall not make any inducement, threat orpromises to any person acquainted with the facts ofthe case so as to dissuade him/her from disclosingsuch facts to the Court or the Police Officer; andpromises to any person acquainted with the facts ofthe case so as to dissuade him/her from disclosingsuch facts to the Court or the Police Officer; and

d. They shall not leave the territory of India without theprior permission of the Court. prior permission of the Court.

10. It is clarified that if the petitioners misuse the liberty or violate any of the conditions imposed upon them, the investigatingagency shall be free to move this Court for cancellation of the bail. 11.Any observations made hereinabove shall not beconstrued to be a reflection on the merits of the case and shall remainconfined to the disposal of this petition alone.

The petition stands accordingly disposed of.

Copy dasti.

(Sandeep Sharma) Judge

31[st] December, 2021 (reena)