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Bail is not to be withheld as a punishment: High Court of Himachal Pradesh

The objective of bail is to secure the attendance of the accused in the trial and the rationale behind the test to issue bail is to see if the accused will appear before the court for a smooth trial.  An accused is supposed to be treated as innocent until proven guilty and this applies to the concept of bail as well. This was decreed by the Hon’ble Mr. Justice Sandeep Sharma in the case of Sher Singh vs. State of Himachal Pradesh [Cr.MP(M) No.1237 of 2021] which was decided on the 09th of July 2021 in the Hon’ble High Court of Himachal Pradesh at Shimla.

The brief facts of the case are, an FIR was registered under section 498-A, Section 506 and Section 323 of the Indian Penal Code on the 30th of June 2021 with the police station, Kasumpati, district Shimla, Himachal Pradesh. An interim bail was granted to the petitioner through an order dates 6.07.2021 in the event of arrest in the above-mentioned case. Mr. Sudhir Bhatnagar, learned Additional Advocate General fairly states that pursuant to order dated 6.7.2021, bail petitioner has already joined the investigation and he is fully co- operating with the investigating agency. It was also submitted that nothing is required to be recovered from the bail petitioner and as such, his custodial interrogation is not required and he can be ordered to be enlarged on bail subject to the condition that he shall make himself available for investigation and trial as and when called by the investigating agency.

The learned court after listening to the submissions of both parties decreed that the norm around bail is ‘bail not jail’. The freedom of the individual is of utmost importance and the court relied on the judgment in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr wherein, it was held that “To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons”.

The court analyzed the objective behind bail with the help of the judgement decreed by the Supreme court in Sanjay Chandra Vs. CBI (2012) 1 SCC 49 wherein, “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.

The court also analysed the principlesto e kept in mind while deciding petition for bail which was laid down in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496, which are, “(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.” Applying the rationale from the above mentioned cases to the present case, the judge decreed that the present petition may be allowed and granted bail to the bail applicant while imposing certain conditions to secure his presence.

Click here to read the judgement.

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