Bhim Singh vs State of Himachal Pradesh

Sandeep Sharma, J.

1.By way of instant bail petition filed under Section 439 of Cr.PC, a prayer has been on behalf of the bail petitioner for grant of regular bail in FIR No.

25/18 dated 27.1.2018, under Sections 457, 380 411, 201 and 34 of IPC, registered at PS Sadar, Mandi, District Mandi, HP.

Sequel to order dated 14.5.2018 passed by this Court, ASI Lachhmi Singh, P.S. Sadar, Mandi, District Mandi, H.P., has come present in Court

alongwith record of the case. Record perused and returned. Mr. Amit Dhumal, learned Deputy Advocate General, has also placed on record status

report prepared on the basis of the investigation carried out by the investigating agency

Close scrutiny of record/status report reveals that aforesaid FIR came to be lodged at the behest of the complainant namely Roshan Lal, who

alleged that on 27.1.2018, some unknown persons after having broken lock of his house, committed theft of jewelry and cash lying in his house. On the

basis of the complainant lodged by the Roshan Lal, police carried out investigation, however, person namely Ghanshyam on the persuasion of his

friend namely Rahul surrendered before the police on 14.3.2018 and confessed that he alongwith present bail petitioner Bhim Singh had committed

theft in the house of the complainant. On the basis of information provided by Ghanshayam, present bail petitioner came to be arrested on 14.3.2018.

As per investigation, all the articles alleged to be stolen from the house of the complainant stand recovered. Co-accused namely Ghanshayam and

Ajay Kumar have been already enlarged on bail.

Learned Deputy Advocate General, on the instructions of Investigating Officer, who is present in Court, while fairly admitting that investigation in

the case is almost complete and nothing is required to be recovered from the bail petitioner, contended that keeping in view the past record of the

present bail petitioner, he does not deserve to be enlarged on bail, rather needs to be dealt with severely. Mr. Dhumal, learned Deputy Advocate

General, while referring to the record/status report contended that as many as four cases stand registered against the bail petitioner and as such,

prayer having been made by him for grant of bail deserves to be rejected. Lastly, learned Deputy Advocate General, contended that in the event of

petitioner’s being enlarged on bail, there is every possibility of his fleeing from justice and it would be very difficult to secure his presence.

Mr. G.R.Palsra, Advocate, representing the petitioner, contended that since investigation is complete and nothing is required to be recovered from

the bail petitioner, petitioner deserves to be enlarged on bail. He further contended that co-accused namely Ajay Kumar and Ghanshayam, have been

also enlarged on bail. While responding to submissions having been made by the learnedDeputy Advocate General with regard to previous cases

lodged against the petitioner, Mr. Palsra, contended that bail cannot be denied on account of pendency of cases against the bail petitioner because

guilt, if any, of him in those cases is yet to be proved in accordance with law by the investigating agency. Lastly, Mr. Palsra, contended that

apprehension expressed by the respondent-State can be met by putting the petitioner to stringent conditions while granting bail.

I have heard the learned counsel for the parties and gone through the record of the case.

Record of investigation clearly suggests that investigation is complete and nothing is required to be recovered from the bail petitioner. It also

emerges from the record that other co-accused namely Ghanshyam and Ajay Kumar stand already enlarged on bail. It has been clearly admitted by

the learned Deputy Advocate General, under instructions, that entire stolen property stands recovered and at present nothing is required to be

recovered from the bail petitioner Record further reveals that challan stands filed in the competent Court of law. True, it is that as per record, there

are 4- 5 cases registered against the bail petitioner in the past, but same are still pending adjudication before the competent court of law, meaning

thereby, guilt, if any, of the petitioner in those cases is yet to be proved by the investigating agency by way of leading cogent and convincing evidence

and as such, mere pendency of cases cannot be a ground for not granting bail. Since challan stands filed in the competent court of law, this Court sees

no reason to keep the bail petitioner behind the bars for an indefinite period, especially when his guilt is yet to be proved in accordance with law.

It is well settled that till the time a person is not found guilty, one is deemed to be innocent. Recently, the Hon’ble Apex Court in Criminal

Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., 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. 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.

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.

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 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.

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.

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.

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.â€​

In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC218, 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 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 Article 21 of the

Constitution was highlighted.â€​

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:

(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.

In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, petitioner has carved out a case for grant of bail,

accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the

sum of Rs. 1,00,000/- with one local surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, 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/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.

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.

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.