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Mohammad Ali and Ors. Vs. State of Himachal Pradesh - (High Court of Himachal Pradesh) (21 Oct 2019)

Bail is not to be withheld as a punishment; Court has to keep in mind nature of accusations and evidence in support thereof and severity of the punishment



In present matter, FIR came to be lodged against both the bail Petitioners. Issue in present case is relating to grant of bail. Learned Senior Counsel representing the bail Petitioners while praying for bail on behalf of the bail petitioners, submitted that, bare statements of victim-prosecutrix nowhere reveal case, if any, under Sections 376D of Indian Penal Code, 1860 (IPC) against the bail Petitioners and as such, they both deserves to be enlarged on bail.

It has been held by the Hon'ble Apex Court as well as present Court that till the time, guilt of individual is not proved in accordance with law, he/she is deemed to be innocent and in the case at hand also, guilt, if any, of the bail petitioners is yet to be proved in accordance with law by the prosecution by leading cogent and convincing evidence. No material has been placed on record suggestive of the fact that, in the event of bail Petitioners being enlarged on bail, they may temper with evidence or flee from justice. Moreover, bail Petitioners being local residents of the area shall always be available for investigation/trial as and when called as has been fairly stated by the learned counsel or the petitioners.

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.

Recently, the Hon'ble Apex Court in Criminal Appeal, Dataram Singh vs. State of Uttar Pradesh & Anr., has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon'ble Apex Court further held that, while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing, when required by the investigating officer. Hon'ble Apex Court further held that, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case.

Consequently, in view of the above, orders passed by this Court, is made absolute, subject to conditions that, they shall make themselves 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. If the Petitioners misuse their liberty or violate any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail. The bail petitions stand disposed of accordingly.


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