Satish Kumar @ Lala And Others vs State Of Himachal Pradesh

Sandeep Sharma, J

This Court after having taken the petitioners into custody on 15.07.2021, in case FIR No. 115/2021, dated 7.7.2021, under Section 3 of the

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act,1989 and Ss. 451,147,148,149,323,427 and 506 IPC registered at police

Station, Bhuntar, Distt. Kullu, Himachal Pradesh, released them on bail subject to their furnishing personal bonds in the sum of Rs. 25,000/- to the

satisfaction of the Additional Registrar (Judicial).

Status report stands filed by the respondent-State in terms of order dated 15.07.2021.

Mr. Sudhir Bhatnagar, learned Additional Advocate General, on the instructions of Investigating Officer, fairly states that pursuant to order dated

15.07.2021, bail petitioners have joined the investigation and they are fully cooperating. He further states that as per instructions imparted to them,

nothing remains to be recovered from the bail petitioners.

Having heard learned counsel representing the parties and perused the record, this Court finds that investigation in the case is complete and at this

stage, nothing is required to be recovered from the bail petitioners as such, sees no reason for custodial interrogation of the bail petitioners, especially

when guilt, if any, of them is yet to be determined, in accordance with law, by the learned Court below on the basis of totality of evidence to be

collected on record by the Investigating Agency.

It has been repeatedly held by Hon’ble Apex Court as well as this Court that freedom of an individual cannot be curtailed for indefinite period,

especially when their guilt is yet to be proved, in accordance with law.

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 freedom of an individual is of utmost importance and same cannot be curtailed merely on the basis of suspicion. Hon’ble

Apex Court has further held that till the time guilt of accused is not proved, in accordance with law, he is deemed to be innocent. The relevant paras

No.2 to 5 of the judgment are reproduced as under:-

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 their 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€​

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:

• 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.

Consequently, in view of the above, order dated 15.07.2021, is made absolute , subject to bail petitioner’s furnishing personal bonds in the sum

of Rs. 25000/- each with one surety in the like amount to the satisfaction of the learned trial Court with following conditions:

• They shall make themselves 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;

• They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

• 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

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

It is clarified that if the petitioners misuse their liberty or violates any of the conditions imposed upon them, 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 petition.

The bail petitions stand disposed of accordingly.

Copy dasti.