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2017 DIGILAW 313 (HP)

Raj Kumar v. State Of Himachal Pradesh

2017-04-06

TARLOK SINGH CHAUHAN

body2017
JUDGMENT Tarlok Singh Chauhan, J. (Oral) - The petitioner has sought regular bail in case FIR No.270/2013, registered at Police Station, Sadar, District Solan on 12.12.2013, under Sections 363, 366 and 376 of the Indian Penal Code and under section 4 of the Protection of Children From Sexual Offences Act, 2012. 2. The respondent has produced the records of investigation and has also filed the status report. 3. Undoubtedly, the petitioner is charged with a serious offence; however, it would appear that despite the FIR having been lodged way back on 12.12.2013, the trial has made no headway progress mainly because of the non-presence of the prosecutrix. 4. That apart, the records of the Sub-Jail, Solan, which were directed to be produced on the last date of hearing also reveals that the prosecutrix had been meeting the accused off and on and at time shown the relations with the accused of ''fiance''. 5. As observed earlier, the petitioner is only an accused and not convict and, therefore, cannot be made to languish indefinitely, that too, only on the account of the prosecutrix not appearing in the trial. 6. The Hon''ble Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, JT 2012 (13) SC 530 has clearly observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that 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 found guilty. It was underlined that the object of bail is neither punitive nor preventive. The Hon''ble Supreme Court sounded a caveat 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 a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and that grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. The detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 12 of the Constitution. 7. In the above factual premise and on an in-depth balancing of all relevant aspects and chiefly the competitive imperatives of investigation and the right to liberty, I find it to be a fit case where discretion of bail ought to be granted, subject to the conditions. 8. Accordingly, the petition is allowed and the petitioner is ordered to be released on bail in case FIR No.270/2013, registered at Police Station, Sadar, District Solan on 12.12.2013, under Sections 363, 366 and 376 of the Indian Penal Code and under section 4 of the Protection of Children From Sexual Offences Act, 2012 on his furnishing personal bond in the sum of Rs.50,000/- with one local surety of the like amount to the satisfaction of the learned Chief Judicial Magistrate, Solan with the following conditions:- (i) that the petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (ii) that the petitioner shall not tamper with the prosecution evidence or threaten the witnesses; (iii) that the petitioner shall make himself available for interrogation by the police officer as and when required. (iv) that the petitioner shall not misuse his liberty in any manner. 9. 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. Petition stands disposed of.