26 May 2020


High Court of Himachal Pradesh

Gulshan Mohammad Vs. State of Himachal Pradesh




Freedom of an individual cannot be curtailed merely on the basis of suspicion

Apprehending his arrest, bail Petitioner, has approached present Court by way of instant petition for grant of pre-arrest bail in FIR registered under Section 376 of Indian Penal Code, 1860 (IPC). Bail Petitioner has been ordered to be enlarged on bail, sequel to order dated 6th March, 2018.

The Petitioner while making reference to the record/status report submitted that, no case under Section 376 IPC, is made out against the Pail petitioner. While inviting attention of this court to the complaint lodged by the complainant-prosecutrix, it is submitted that, there is no specific allegation in the complaint that she was compelled by the bail Petitioner to solemnize marriage and thereafter, to develop physical relations with the complainant, rather she of her own volition stayed with the bail Petitioner for more than six years and during this period, she never lodged any complaint either to the police station or gram panchayat. Investigation in the case is almost complete and nothing is required to be recovered from the bail Petitioner at this stage and as such, there is no occasion for the custodial interrogation of the bail Petitioner.

There is no evidence available at this stage suggestive of the fact that, the bail Petitioner taking undue advantage of innocence of the complainant, compelled her to solemnize the marriage with him, rather investigation reveals that, in the year, 2007, after the death of husband of the complainant, bail Petitioner approached her for marriage. Similarly, there is no allegation in the complaint that between year, 2007-2010, bail petitioner sexually assaulted the complainant against her wishes/volition, rather complainant, who at that relevant time was mother of two children herself decided to solemnize marriage with the bail petitioner. Otherwise also there is no explanation, if any, available on record with regard to the complainant's silence for almost six years between year, 2010 to 2016. Apart from above, if aforesaid allegation leveled by the complainant is presumed to be correct that bail petitioner mis-represented himself to be Hindu, there is no explanation that why bail petitioner kept mum for two years, after discovering the aforesaid fact in the year, 2016. Though aforesaid aspects of the matter are required to be considered and decided by the court below on the basis of material adduced on record by the prosecution, but this Court after having seen record sees no reason for custodial interrogation of the bail petitioner, who has otherwise made himself available for investigation.

Regarding another apprehension expressed by learned Additional Advocate General with regard to petitioner's absconding from trial in the event of his being enlarged on bail is concerned, same can be met by putting the bail petitioner to stringent conditions as has been fairly submitted by the learned counsel representing the bail petitioner.

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 case of Dataram Singh v. State of Uttar Pradesh & Anr., has categorically held that, freedom of an individual is of utmost importance and same cannot be curtailed merely on the basis of suspicion. Hon'ble Apex Court has further held that, till the time guilt of the accused is not proved in accordance with law, he is deemed to be innocent.

The Hon'ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another, 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.

Order dated 6th March, 2018 passed by this Court, is made absolute, subject to the conditions that, he shall make himself 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; He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or the Police Officer; and He shall not leave the territory of India without the prior permission of the Court. It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. The bail petition stands disposed of accordingly.


Dataram Singh v. State of Uttar Pradesh & Anr., Prasanta Kumar Sarkar v. Ashis Chatterjee and Another MANU/SC/0916/2010
: (2010) 14 SCC 496

Tags : FIR Pre-arrest bail Grant

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