Himmat Singh @APPELLANT@Hash State of Himachal Pradesh @RESPONDEN

Sandeep Sharma, J

1.Sequel to order dated 22.10.2018, whereby petitioner was enlarged on interim bail in connection with FIR No. 22/18 dated 18.10.2018, registered

under Sections 304-A, 336, 337 and 338 of IPC, at PS Pooh, District Kinnaur, H.P., H.C., Karan Singh, P.S. Pooh District Kinnaur, H.P., has come

present along with records. Record perused and returned. Mr. Dinesh Thakur, learned Additional Advocate General, has also placed on record status

report prepared on the basis of investigation carried out by the Investigating Agency.

Mr. Dinesh Thakur, learned Additional Advocate General, on instructions from Investigating Officer, who is present in Court, fairly stated that

petitioner has joined the investigation in terms of order dated 22.10.2018 and his custodial interrogation is not required. He on the instructions of

Investigating Officer also stated that State has no objection in case, petitioner is ordered to be enlarged on bail subject to condition that he shall always

make himself available as and when required by the Investigating Agency.

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) SCC 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 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.

Reliance is placed on judgment passed by the Hon’ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC

731, relevant para whereof has been reproduced herein below:-“11. This Court has consistently recognised the right of the accused for a speedy

trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See:

Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616) Accused,

even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood

of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra,

(2005) 11 SCC 569).

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 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 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.

Consequently, in view of the above, order dated 22.10.2018 passed by this Court, is made absolute, subject to 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 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 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.

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.