Himachal Pradesh High Court
Daleep S Ingh Kalta vs State Of Himachal Pradesh on 24 August, 2018
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.1021 of 2018 Decided on : August 24, 2018 .
Daleep S ingh Kalta ...Petitioner Versus State of Himachal Pradesh ...Respondent Coram:
The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice.Whether approved for reporting? No 1
For the Petitioner : Mr. V.S. Chauhan, Advocate . For the Respondent : Mr. Adarsh Sharma, Addl. A.G. and Ms. Svaneel Jaswal, Dy. A.G. Sanjay Karol, Acting Chief Justice (oral) ASI, Sohan Lal, Incharge, Police Post, Saraswati Nagar, Police Station, Jubbal, D istrict Shimla, Himachal Pradesh, is present alongwith record. Record perused and returned. Status report filed and taken on record.
2. F.I.R. No.64 /2018, under the provisions of Section 379 of the Indian Penal Code and Sections 32 and 33 of the Indian Forest Act, 1927, was registered at Police Station, Jubbal, District Shimla, H.P, on 7.8.2018.
Apprehending arrest, petitioner approached this Court seeking bail under the provisions of Section 438 of the Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 25/08/2018 23:00:34 :::HCHP 2Code of Criminal Procedure. On 9.8.2018, this Court passed an interim order directing that in the event of arrest, petitioner shall be enlarged on bail, subject to his .
complying with the conditions imposed therein. The said interim order is in operation till date.
3. Learned Deputy Advocate General, under instructions from the Investigating Officer, states that investigation is complete and the Challan is likely to be presented in Court in near future.
4. Having heard learned counsel for the parties as also perused the record, more so when the investigation is complete and the Challan is likely to be presented in near future and the fact that the petitioner is not likely to in fluence the witnesses or otherwise interfere/ impede the investigation as also nature of offence and the time gap between the commission of offence and lodging of FIR, I am of the considered view that petitioner has made out a case for confirmation of interim order dated 9.8 .2018. Petitioner is permanent resident of State of H.P. and during investigation has fully cooperated and there is no likelihood of his fleeing away from the jurisdiction of the Court in the event of trial ::: Downloaded on - 25/08/2018 23:00:34 :::HCHP 3 being initiated against him. There is nothing on record to highlight the past criminal conduct of the petitioner. His custodial interrogation is not required at all.
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5. Law with regard to grant of bail is now well settled. The Apex Court in Siddharam Satlingappa Mhetre versus State of Maharashtra and others, (2011) 1 SCC 694, while relying upon its decision rendered by its Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565, laid down the following parameters for grant of bail:- r "111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in th e Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited ::: Downloaded on - 25/08/2018 23:00:34 :::HCHP 4 to do. In any event, this is the legislative mandate which we are bound to respect and honour.
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112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in r respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood to repeat similar or the other offences.
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
(vii) 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 case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court ::: Downloaded on - 25/08/2018 23:00:34 :::HCHP 5 should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
(viii) 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 the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be considered and it is only the element of r 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 is entitled to an order of bail.
113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.
114. These are some of the factors which should be taken into consideration while deciding the ::: Downloaded on - 25/08/2018 23:00:34 :::HCHP 6 anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situations and circumstances .
in which a person may pray for anticipatory bail.
If a wise discretion is exercised by the Judge concerned, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be tak en care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the court of Sessions or the High Court is always available."
(Emphasis supplied)
6. The view stands reiterated by the apex Court in Sanjay Chandra versus Central Bureau of Investigation, (2012) 1 SCC 40.
7. 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:
::: Downloaded on - 25/08/2018 23:00:34 :::HCHP 7(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;
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(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, thwarted by grant of bail.
of justice being
8. Having holistically considered the nature of offence and the relevant attending circumstances in favour of the petitioner-accused, and also in view of the law discussed, herein above, I feel that it is a fit case in which petitioner should be enlarged on bail.
9. For, all the aforesaid reasons, interim order dated 9.8 .2018 is made absolute, subject to the conditions laid down therein. Needless to add, petitioner is not likely to flee from the territorial jurisdiction of the country. The petitioner shall be on bail till such time Challan is presented in the Court for trial whereafter he ::: Downloaded on - 25/08/2018 23:00:34 :::HCHP 8 shall approach the Court for regular bail, in accordance with law. Needless to add, during this period petitioner shall fully comply with all the statutory conditions laid .
down under the provisions of Section 438 of the Cr.P.C.
As a matter of abundant caution, it is clarified that petitioner shall neither tamper with the evidence nor try to influence the witnesses. He shall make himself available for investigation as and when required by the Investigating Officer. He shall not leave the country without prior permission of the Court.
10. Any observation made herein above 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 herein above.
With the aforesaid observations, present petition stands disposed of.
Copy Dasti.
(Sanjay Karol), August 24, 2018 (KS) Acting Chief Justice.
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