Himachal Pradesh High Court
State Of Himachal Pradesh vs Jai Inder Singh on 13 April, 2017
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 12 of 2017
.
Date of decision: 13.04.2017
State of Himachal Pradesh ... Petitioner
Versus
Jai Inder Singh ... Respondent
Coram :
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 No.
For the petitioner: Mr. V.S. Chauhan, Additional
Advocate General, Advocate.
For the respondent: Mr. G.D. Verma, Senior Advocate
with Mr. B.C. Verma, Advocate, for
the respondent.
Ajay Mohan Goel, J. (Oral):
By way of this petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, the State has challenged order dated 23.8.2016 passed by the Court of learned Additional Sessions Judge, Kullu, in Bail Application No. 97 of 2016 dated 23.08.2016, vide which 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 18/04/2017 00:10:06 :::HCHP 2learned Additional Sessions Judge has ordered the release of present respondent in case FIR No. 156 of 2016 dated .
11.08.2016 registered under Sections 376 and 506 of Indian Penal Code at Police Station, Kullu.
2. Facts necessary for adjudication of the present case are that an anticipatory bail application was filed by the present respondent in case FIR No. 156 of 2016 dated 11.08.2016 under Sections 376 and 506 of Indian penal Code, registered in Police Station Kullu, on the ground that r the complainant was working in the shop of the present respondent, hereinafter referred to as the bail petitioner, for the last 5-6 years and she was having live-in-relation with the bail petitioner for the last more than one year. It was further the case of the bail petitioner that the complainant gave beatings to the bail petitioner as well as his son and in this regard, the bail petitioner had lodged a report in Ladies Police station, Kullu on 03.08.2016. As per the bail petitioner, the complainant in retaliation lodged a false report in Police Station, Kullu, against the bail petitioner and that the bail petitioner was innocent and he had not committed any such crime.
::: Downloaded on - 18/04/2017 00:10:06 :::HCHP 33. Learned Court below vide order dated 23.08.2016 allowed the application so filed by the bail .
petitioner for the grant of anticipatory bail by holding that the report filed by the State demonstrated that the complainant was living with the bail petitioner in live-in-relationship for the last more than one year. Learned Court below took note of the fact that the bail application was opposed by the State mainly on the ground that in case the bail was granted, bail petitioner was likely to tamper with prosecution evidence. It was observed by learned Court below that the said apprehension of the prosecution can be suitably meted out while releasing the bail petitioner and in case the bail petitioner indulged in tampering with prosecution evidence, the prosecution was at liberty to seek cancellation of bail so granted to the bail petitioner. On these basis, learned Court below granted anticipatory bail to the petitioner.
4. Feeing aggrieved, State has filed the present revision petition.
5. As per learned Additional Advocate General, the grant of anticipatory bail in favour of the present respondent is not sustainable in the eyes of law as learned Court below while releasing the respondent on anticipatory bail has erred ::: Downloaded on - 18/04/2017 00:10:06 :::HCHP 4 in not appreciating that as the offence alleged against the respondent was under Section 376 of Indian Peal Code, grant .
of anticipatory bail in such like matter amounts to incorrect exercise of jurisdiction vested in the said Court. It was further submitted by learned Additional Advocate General that learned Court below while granting anticipatory bail has erred in not appreciating the case of the prosecution that the accused in fact was a married man and despite this, he solemnized marriage with the complainant/victim r on the pretext that he had divorced his first wife and the said conduct of the accused also did not entitle him to be released on anticipatory bail. No other point was urged.
6. On the other hand Mr. G.D. Verma, learned Senior Counsel appearing for respondent argued that there was no merit in the present petition, as no illegality or irregularity had been committed by the learned Court below while granting bail in favour of respondent. According to Mr. Verma, respondent was not guilty of having committed an offence punishable under Section 376 IPC. Mr. Verma further argued that respondent was totally innocent and no error had been committed by the learned Court below while releasing respondent on bail. It was further argued by Mr. Verma that ::: Downloaded on - 18/04/2017 00:10:06 :::HCHP 5 "Bail before Jail" was well settled principle of criminal jurisprudence. Mr. Verma further argued that there was no .
complaint on behalf of the prosecution that after release of respondent on bail, he in any manner had tried to influence the investigation. On these basis it was argued by Mr. Verma that there was no merit in the revision petition and the same be dismissed.
7. I have heard learned counsel for the parties and also gone through the order passed by learned Court below dated 23.08.2016.
8. Learned Court below vide order dated 23.08.2016 released respondent on bail in an application filed under Section 438 of the Code of Criminal Procedure. After the grant of bail in favour of respondent there is no complaint with regard to conduct of respondent subsequent to his release on bail to the effect that the said respondent was hampering the investigation in the case.
9. It is not the case of the petitioner that the learned Court below which has allowed the bail application of the bail petitioner was not competent to have had adjudicated on the said application or was not competent to release respondent on bail. Thus it is not a case where any ::: Downloaded on - 18/04/2017 00:10:06 :::HCHP 6 jurisdictional error has been committed by the learned Court below by granting bail in favour of respondent. Therefore, this .
Court has to see as to whether learned Court below while granting bail to respondent has acted on irrelevant material or whether there was non application of mind or failure to take note of any statutory bar to grant bail or there was any manifest impropriety committed by the learned Court below while granting bail.
10. r The Hon'ble Supreme Court in Gurcharan Singh and others Vs. State (Delhi Administration) (1978) 1 Supreme Court Cases 118 has held as under:-
"27. Ordinarily the High Court will not exercise its discretion to interfere with an order of bail granted by the Sessions Judge. in favour of an accused.
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29. We may repeat the two paramount considerations, viz. likelihood of the accused fleeing from justice and his tampering with prosecution evidence relate to ensuring a fair trial of the case in a court of justice. It is essential that due and proper weight should be bestowed on these two factors apart from others. There cannot ban inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail."::: Downloaded on - 18/04/2017 00:10:06 :::HCHP 7
11. The Hon'ble Supreme Court in Neeru Yadav Vs. State of Uttar Pradesh and another, (2014) 16 Supreme .
Court Cases, 508 has held as under:-
"9. In this context, a fruitful reference be made to the pronouncement in Ram Govind Upadhyay v.
Sudarshan Singh, wherein this Court has observed that grant of bail though discretionary in nature, yet such exercise cannot be arbitrary, capricious and injudicious, for the heinous nature of the crime warrants more caution and there is greater change of rejection of bail, though, however dependant on the factual matrix of the matter. In the said decision, reference was made to Prahlad Singh Bhati v. NCT, Delhi and the Court opined thus: (Sudarshan Singh case, SCC p. 602, para4) "(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.
(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.
(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.
(d) 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 ::: Downloaded on - 18/04/2017 00:10:06 :::HCHP 8 the prosecution, in the normal course of events, the accused is entitled to an order of bail."
10. In Chaman Lal V. State of U.P., the Court has .
laid down certain factors, namely, the nature of accusation, severity of punishment in case of conviction and the character of supporting evidence, reasonable apprehension of tampering with the witness or apprehension of threat to the complainant, and prima facie satisfaction of the Court in support of the charge which are to be kept in mind.
11. In this context, we may profitably refer to the dictum in Prasanta Kumar Sarkar v. Ashis Chatterjee, wherein it has been held that normally this Court does not interfere with the order passed by the High Court when a bail application is allowed or declined, but the High Court has a duty to exercise its discretion cautiously and strictly. Regard being had to the basic principles laid down by this Court from time to time, the Court enumerated number of considerations and some of the considerations which are relevant for the present purpose are; whether there is likelihood of the offence being repeated and whether there is danger of justice being thwarted by grant of bail.
12. We have referred to certain principles to be kept in mind while granting bail, as has been laid down by this Court from time to time. It is well settled in law that cancellation of bail after it is granted because the accused has misconducted himself or of some supervening circumstances warranting such cancellation have occurred is in a different compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail and have not been taken note of bail or it is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail. Such a case belongs to a different category and is in a separate realm. While dealing with a case of second nature, the Court does ::: Downloaded on - 18/04/2017 00:10:06 :::HCHP 9 not dwell upon the violation of conditions by the accused or the supervening circumstances that have happened subsequently. It, on the contrary, delves into the justifiability and the soundness of the order .
passed by the Court.
16. The issue that is presented before us is whether this Court can annul the order passed by the High Court and curtail the liberty of the second respondent? We are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bedrock of constitutional right and accentuated further on human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilized society. It is a cardinal value on which the civilization rests. It cannot be allowed to be paralyzed and immobilized. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. The society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability from the member, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, when an individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound to follow. At that stage, the Court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or ::: Downloaded on - 18/04/2017 00:10:06 :::HCHP 10 caprice. It has to be guided by the established parameters of law."
12. It is evident from the law laid down by the .
Hon'ble Supreme Court that certain factors which have to be taken into consideration while dealing with the bail applications are, nature of accusations, severity of punishment in case of conviction, character of supporting evidence, reasonable apprehension of tampering with the witness or apprehension of threat to the complainant and prima facie satisfaction of the Court in support of the charge. Besides this, 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 is entitled to an order of bail. It has been clearly laid down by the Hon'ble Supreme Court that if in a case relevant factor which should have been taken into consideration while dealing with the application of bail have not been taken note of or bail is founded on irrelevant consideration then the superior Court can set aside the order of grant of bail. As per Hon'ble Supreme Court in these kind of cases Court does not dwell ::: Downloaded on - 18/04/2017 00:10:06 :::HCHP 11 upon the violation of the condition by the accused or supervening circumstances that has happened subsequently .
on the contrary it delves upon the justifiability and the soundness of the order passed by the Court.
13. Coming to the facts of the present case, a perusal of the orders passed by learned Court below demonstrates that after taking overall perspective of the matter, learned Court below granted anticipatory bail in favour of the accused on the conditions contemplated in the said order. Learned Additional Advocate General has not been able to point out that the learned Court below while granting bail has either acted on irrelevant material or there has been non application of mind or failure to take note of statutory bar in grant of bail.
No manifest impropriety has also been pointed out because it is no one's case that the State was not heard at the time when bail was granted in favour of respondent by the learned Court below. The basis on which learned Court below has allowed the application of the accused cannot be termed to be based on irrelevant material nor can it be said that there was total non application of mind by the learned Court below while granting the bail.
::: Downloaded on - 18/04/2017 00:10:06 :::HCHP 1214. Therefore, in my considered view, there is no manifest illegality or irregularity in the order so passed by the .
learned Court below which has been assailed by way of present revision and the same is accordingly dismissed.
(Ajay Mohan Goel),
April 13, 2017 Judge
(BSS)
r to
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