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2018 DIGILAW 106 (HP)

Chho Dassi v. State Of Himachal Pradesh

2018-01-09

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J. (Oral) - Bail petitioner namely, Smt. Chho Dassi apprehending her arrest in case FIR No. 87 of 2017, dated 12.12.2017, under Sections 147, 452 and 306 of the Indian Penal Code, registered at Police Station, Bhabanagar, District Kinnaur, Himachal Pradesh, has approached this Court by way of instant bail petition filed under section 438 of Code of Criminal Procedure, 1973 praying therein for grant of pre-arrest bail. 2. Sequel to order dated 2.01.2018, whereby the bail petitioner was ordered to be enlarged on interim bail, ASI Som Dutt, police Station Bhabanagar, District Kinnaur, Himachal Pradesh, has come present alongwith the record. Mr. P.M. Negi, learned Additional Advocate General, has also placed on record status report prepared on the basis of the investigation carried out by the Investigating Agency. Record perused and returned. 3. Mr. P.M. Negi, learned Additional Advocate General, while referring to the record/status report, fairly stated that the investigation in the case is complete, save and except report of FSL which is yet awaited. Mr. Negi, further contended that nothing is required to be recovered from the bail petitioner and as such, she may be ordered to be enlarged on bail since other five co-accused have been already enlarged on bail by this Court vide order(s) dated 29.12.2017 passed in Cr.MP(M) No. 1510 of 2017, Cr.MP(M) No. 1511 of 2017, Cr.MP(M) No. 1512 of 2017, Cr.MP(M) No. 1513 of 2017 and Cr.MP(M) No. 1514 of 2017. 4. Mr. Vinay Thakur, learned counsel representing the bail petitioner, while referring to the order(s) dated 29.12.2017, passed by this Court in Cr.MP(M) No. 1510 of 2017 alongwith other connected matters, contended that all the main accused in the case have been already enlarged on bail by this Court, taking note of the material collected on record by the prosecution and as such, present bail petitioner deserves to be enlarged on bail. 5. This Court, after having perused the status report as well as order(s) dated 29.12.2017, passed by this Court in the above mentioned bail petitions, sees no reason for custodial interrogation, if any, of the bail petitioner, especially when the investigation in the case is complete and challan is likely to be presented in the Court very soon. 6. 5. This Court, after having perused the status report as well as order(s) dated 29.12.2017, passed by this Court in the above mentioned bail petitions, sees no reason for custodial interrogation, if any, of the bail petitioner, especially when the investigation in the case is complete and challan is likely to be presented in the Court very soon. 6. 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, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. 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. 7. The Hon''ble Apex Court in Sanjay Chandra v. Central Bureau of Investigation (2012)1 Supreme Court Cases 40 ; 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." 8. In Manoranjana Sinh Alias Gupta v. CBI 2017 (5) SCC 218 , The Hon''ble Apex Court has held as under: "This Court in Sanjay Chandra v. CBI , also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had 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. This 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 to 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 ad 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 the grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted." 9. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted." 9. The Hon''ble Apex Court in Prasanta Kumar Sarkar v. 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. 10. Consequently, in view of the above, order dated 2.01.2018, passed by this Court, is made absolute, subject to the following conditions: a. She shall make herself 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. She shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c. She shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to the Court or the Police Officer; and d. She shall not leave the territory of India without the prior permission of the Court. 11. It is clarified that if the petitioner misuse her liberty or violate any of the conditions imposed upon her, the investigating agency shall be free to move this Court for cancellation of the bail. 12. 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 application alone. The bail petition stands disposed of accordingly.