Shushil Kumar vs State of Himachal Pradesh

Sandeep Sharma, J.

By way of present bail petition filed under Section 438 CrPC, prayer has been made for grant of anticipatory bail in respect of FIR No. 26/18 dated

10.5.2018 under Sections 354 B&D, 341, 506 and 34 IPC and Sections 8 and 11 of Protection of Children from Sexual Offences Act and Section 67

of IT Act, registered at Police Station, Khundion, District Kangra, Himachal Pradesh.

Sequel to order dated 28.5.2018, Yogesh Dutt Joshi, Dy.SP./ Investigating Officer has come present with the record. 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.

Record perused and returned.

Close scrutiny of record/status report reveals that on 10.5.2018, complainant-prosecutrix lodged a complaint, alleging therein that on 26.2.2018, bail

petitioner as well as co-accused namely Shami Kumar threatened to demolish cow- shed allegedly constructed on government land. Subsequently, on

28.2.2018, bail petitioner allegedly provided one new telephone to the complainant-prosecutrix and threatened her that in case she fails to talk to him,

he will demolish the cowshed made by her father on the government land. Complainant also alleged that bail petitioner and co-accused Shami Kumar

with a view to pressurize her for marriage, forcibly opened her Salwar and videographed her in a naked condition. Complainant also reported to the

police that save and except video of her made against her wishes, bail petitioner as well as co -accused have not committed any offence. Allegedly

video of complainant was later on put on Facebook by co-accused Shami Kumar and as such, FIR detailed herein above, came to be lodged against

bail petitioner as well as co-accused Shami Kumar.

Mr. Dinesh Thakur, learned Additional Advocate General, while inviting attention of this Court to the status report and on the instructions of the

Investigating Officer, who is present in court, fairly stated that bail petitioner has joined the investigation pursuant to order dated 14.5.2018 and is fully

cooperating. Mr. Thakur further stated that bail petitioner during investigation revealed that on the alleged date of incident, i.e. 7.5.2018, he was at

Medical College, Tanda, in connection with illness of his mother. In this regard, he also placed on record prescription /discharge slip issued by Medical

College, Tanda. During investigation, police found discharge slip dated 7.5.2018, to have been issued by Medical College Tanda. Mr. Thakur, on the

instructions of the Investigating Officer fairly stated that at this stage, there is no evidence available to connect bail petitioner with the offence alleged

to have been committed by him, as such, he can be ordered to be enlarged on bail, subject to the condition that he shall make himself available for

investigation as and when required by the investigating agency.

Consequently, in view of above, this Court sees no reason to keep the bail petitioner behind the bars for indefinite period, especially when he has

joined investigation. Moreover, as has been noticed herein above, explanation rendered on record by bail petitioner to prove his innocence has been

found to be genuine and correct, as such, prayer made in the instant application deserves to be accepted. Further, bail petitioner is a government

employee and as such, there is no likelihood of his absconding during investigation /trial.

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 held

that freedom of an individual can not be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has further held by the

Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held 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.â€​

By now it is well settled that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the

court while exercising its discretion. It has been repeatedly held by the Hon’ble Apex Court that 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. The Hon’ble Apex Court in Sanjay

Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; has been 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€​

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 also, normal rule is of

bail and not jail. Apart from above, 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 Apex Court in Prasanta Kumar Sarkar versus 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 above, bail petitioner has carved out a case for grant of bail and as such, order dated 14.5.2018 is made absolute subject to petitioner

furnishing fresh bail bonds in the sum of Rs.50,000/- (Rs. Fifty Thousand) with one local surety in the like amount, to the satisfaction of the trial

court/Chief Judicial Magistrate concerned, besides 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/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.

(e) He shall surrender passport, if any, held by her.

It is clarified that if the petitioner misuses the 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 petition alone. The petition stands accordingly disposed of.