Himachal Pradesh High Court
Sanjeev Kumar vs Of on 29 June, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.(M) No. 659 of 2016 a/w Cr.M.P.(M) No. 736 of 2016 .
Date of decision: 29.6.2016
1. Cr.MP(M) No. 659 of 2016 Sanjeev Kumar ...Petitioner Versus of State of Himachal Pradesh. ...Respondent
2. Cr.MP(M) No.736 of 2016 Soni Kumar rt Versus ...Petitioner State of Himachal Pradesh ...Respondent.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No For the Petitioner(s): Mr. B.M. Chauhan and Mr. Hominder Ghezta, Advocates.
For the Respondent: Ms. Meenakshi Sharma, Additional Advocate General with Mr. J. S. Guleria, Assistant Advocate General.
ASI Duni Chand, I/O, P.S. Bharari, Distt. Bilaspur, present alongwith records.
Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 20:43:06 :::HCHP 2Tarlok Singh Chauhan J. (oral).
The petitioner(s) have sought regular bail in FIR No. 83 .
of 2015 registered at Police Station, Bharari, District Bilaspur, H.P., on 21.8.2015 under Sections 363, 366, 376, 34 IPC and Section 4 of POCSO Act.
2. Respondent has filed the status report and has also of produced the records of the investigation.
3. From the perusal of the record, it appears that the rt parties are not only known to each other, but Suman one of the co-accused in this case was interested to settle the marriage of the complainant with her 'devar' (brother-in-law) Sanjeev Kumar and on account of her over zealousness it was alleged that the petitioner(s) were instrumental in kidnapping the complainant and additional charges under Section 376 IPC and Section 4 of POCSO Act have been leveled against Sanjeev Kumar.
4. Records of the investigation revealed that it was the complainant herself who accompanied the main accused at different places. One of the other co-accused Suman has ::: Downloaded on - 15/04/2017 20:43:06 :::HCHP 3 already been ordered to be released on bail vide order dated 1.10.2015 passed in Cr.M.P.(M) No. 1447 of 2015.
5. The allegations against the petitioner in Cr.MP(M) No. .
736 of 2016 are in no manner more grave or serious to the one leveled against Suman, therefore, on the ground of parity alone, the petitioner is entitled to bail.
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6. It is more than settled that the object of bail is to secure the attendance of the accused at the trial, and the rt 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. The Court has also to consider whether there is any possibility of the accused tampering with evidence or influencing witnesses etc. Once these tests are satisfied, bail should be granted to an undertrial which is also important as viewed from another angle, namely, an accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. Thus, grant or non-grant of bail depends upon a variety of circumstances and the cumulative effect thereof ::: Downloaded on - 15/04/2017 20:43:06 :::HCHP 4 enters into judicial verdict. The Court stresses that any single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.
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7. In this context, it is apt to refer to a recent judgment of Hon'ble Supreme Court in Bhadresh Bipinbhai Sheth Vs. State of Gujarat & another JT 2015 (8) SC 125, paragraphs 19 to 23:-
of "19. Before we proceed further, we would like to discuss the law relating to grant of anticipatory bail as has been developed through judicial interpretative process. A judgment which needs to be pointed out is a Constitution Bench Judgment of this Court in the case of Gurbaksh rt Singh Sibbia and Others v. State of Punjab[1]. The Constitution Bench in this case emphasized that provision of anticipatory bail enshrined in Section 438 of the Code is conceptualised under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. The Code explains that an anticipatory bail is a pre- arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore, effective at the very moment of arrest. A direction under Section 438 is therefore intended to confer conditional immunity from the 'touch' or confinement contemplated by Section 46 of the Code. The essence of this provision is brought out in the following manner:
"26. We find a great deal of substance in Mr Tarkundes submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially ::: Downloaded on - 15/04/2017 20:43:06 :::HCHP 5 when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he .
is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned.
of No doubt can linger after the decision in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. rt Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein".
20. Though the Court observed that the principles which govern the grant of ordinary bail may not furnish an exact parallel to the right to anticipatory bail, still such principles have to be kept in mind, namely, the object of bail which is to secure the attendance of the accused at 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. The Court has also to consider whether there is any possibility of the accused tampering with evidence or influencing witnesses etc. Once these tests are satisfied, bail should be granted to an undertrial which is also important as viewed from another angle, namely, an accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. Thus, grant or non-grant of bail depends upon a variety of circumstances and the cumulative effect thereof enters into judicial ::: Downloaded on - 15/04/2017 20:43:06 :::HCHP 6 verdict. The Court stresses that any single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail. After clarifying this position, the Court discussed the inferences of anticipatory bail in the following manner:
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"31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking of advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be rt granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicants presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and the larger interests of the public or the State are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in The State v. Captain Jagjit Singh, AIR 1962 SC 253 : (1962) 3 SCR 622 : (1962) 1 Cri LJ 216, which, though, was a case under the old Section 498 which corresponds to the present Section 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man ::: Downloaded on - 15/04/2017 20:43:06 :::HCHP 7 entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail."
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21. It is pertinent to note that while interpreting the expression may, if it thinks fit occurring in Section 438(1) of the Code, the Court pointed out that it gives discretion to the Court to exercise the power in a particular case or not, and once such a discretion is there merely because the accused is charged with a serious offence may not by itself be the reason to refuse the grant of anticipatory bail if the circumstances are otherwise of justified. At the same time, it is also the obligation of the applicant to make out a case for grant of anticipatory bail. But that would not mean that he has to make out a special case. The Court also remarked that a wise exercise of judicial power inevitably takes care of the evil rt consequences which are likely to flow out of its intemperate use.
22. Another case to which we would like to refer is the judgment of a Division Bench of this Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Others[2]. This case lays down an exhaustive commentary of Section 438 of the Code covering, in an erudite fashion, almost all the aspects and in the process relies upon the aforesaid Constitution Bench judgment in Gurbaksh Singh's case. In the very first para, the Court highlighted the conflicting interests which are to be balanced while taking a decision as to whether bail is to be granted or not, as is clear from the following observations:
"1. Leave granted. This appeal involves issues of great public importance pertaining to the importance of individual's personal liberty and the society's interest. Society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law of bails dovetails two conflicting interests, namely, on the one hand, the requirements of shielding society from the hazards of those committing crimes and potentiality of repeating the same ::: Downloaded on - 15/04/2017 20:43:06 :::HCHP 8 crime while on bail and on the other hand, absolute adherence to the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty."
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23. The principles which can be culled out, for the purposes of the instant case, can be stated as under:
(i) The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between of the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law.
rt If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law.
(ii) The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.
(iii) It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire ::: Downloaded on - 15/04/2017 20:43:06 :::HCHP 9 community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.
(iv) There is no justification for reading into Section 438 CrPC the limitations mentioned in Section 437 CrPC. The plentitude of .
Section 438 must be given its full play. There is no requirement that the accused must make out a special case for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 CrPC to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and of conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail. rt
(v) The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor the court may either reject the anticipatory bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail granted by the court should ordinarily be continued till the trial of the case.
(vi) It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time.
(vii) In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the ::: Downloaded on - 15/04/2017 20:43:07 :::HCHP 10 trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.
(viii) Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts .
and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations.
(ix) No inflexible guidelines or straitjacket formula can be provided of for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative rt intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case.
(x) We shall also reproduce para 112 of the judgment wherein the Court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail:
(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(c) The possibility of the applicant to flee from justice;
(d) The possibility of the accused's likelihood to repeat similar or other offences;::: Downloaded on - 15/04/2017 20:43:07 :::HCHP 11
(e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
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(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the of case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because over implication in the cases is a matter rt of common knowledge and concern;
(h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused in entitled to an order of bail."::: Downloaded on - 15/04/2017 20:43:07 :::HCHP 12
8. Adverting to the allegations leveled against the bail petitioner in Cr.MP(M) No. 659 of 2016, it would be noticed that though serious allegations have been leveled against the .
petitioner, but then the complainant has refused to undergo her medical examination and in such circumstances, the allegations leveled by her cannot be accepted as a gospel of truth and cannot be taken on their face value, particularly when it is the complainant, who had accompanied the rt petitioner at different places out of her own free will and volition. In such circumstances, even this petitioner cannot be denied bail.
9. Bearing in mind the aforesaid exposition of law, it would be seen that it is not even the allegation of the prosecution that in the event of the petitioner(s) being released on bail, they would, in any manner, impede the course and cause of justice or that the petitioner(s), may in any manner, hamper the free, fair and full investigation.
10. Accordingly, the both the petitions are allowed and the petitioner(s) are ordered to be released on bail in FIR No. 83 of 2015 dated 21.9.2015 registered at Police Station Bharari, ::: Downloaded on - 15/04/2017 20:43:07 :::HCHP 13 District Bilaspur, H.P. under Sections 363, 366, 376, 34 IPC and Section 4 of POCSO Act, on their furnishing personal bonds in the sum of `20,000/- each with one surety each of the like .
amount to the satisfaction of Judicial Magistrate Ist Class, Bilaspur, H.P. with the following conditions:-
(i) they shall make themselves available for the of 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 rt do so, seek exemption from appearance by filing appropriate application;
(ii) they shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(iii) they shall not make any inducement, threat or promise 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
(iv) they shall not leave the territory of India without prior permission of the Court.
Learned Judicial Magistrate Ist Class, Bilaspur, is directed to comply with the directions issued by the High Court, vide ::: Downloaded on - 15/04/2017 20:43:07 :::HCHP 14 communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.
11. Any observation made hereinabove shall not be .
taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made hereinabove.
of Petitions stand disposed of.
Copy Dasti.
rt (Tarlok Singh Chauhan),
Judge.
29th June, 2016
(GR)
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