2025:HHC:1364 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.2938 of 2024 Date of Decision: 07.01.2025 _____________________________________________________________ Sonu Kumar ……...Petitioner Versus State of Himachal Pradesh …....Respondent Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the Petitioner: Ms. Meera Devi, Advocate. For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C. Verma, Additional Advocates General with Mr. Ravi Chauhan, Deputy Advocates General. HC Amarjit Singh No. 48, PS Baddi, District Solan H.P, present in person. Sandeep Sharma, J. (Oral) Bail petitioner namely Sonu Kumar, who is behind the bars since 03.04.2024, has approached this Court in the instant proceedings, filed under Section 483 of Bharatiya Nagrik Suraksha Sanhita, for grant of regular bail in case FIR No. 70 of 2024 dated 26.03.2024, under Sections 395, 414, 411 120-B and 34 of IPC, registered with Police Station, Baddi District Solan, Himachal Pradesh. 2025:HHC:1364 2. Respondent-State has filed status report and HC Amarjit Singh, PS Baddi, has come present with record. Record perused and returned. 3. Close scrutiny of status report as well as record made available to this Court reveals that on 26.3.2024, complainant Rajesh Kumar, lodged a complaint at Police Station Baddi, alleging therein that in the intervening night of 24/25.3.2024, 15-16 persons entered the factory premises and committed theft of 1500-1800 Kgs of brass articles. Complainant alleged that though two security guards were on duty, but they were overpowered by aforesaid persons, who were armed with deadly weapons. On the basis of aforesaid information, police conducted investigation and lodged complaint under Section 395 of IPC against unknown persons, however subsequently, during investigation and on the basis of CCTV footage, it transpired that person namely Jai Mangal had sold few items in the shop of Shivji Sahni and Pankaj Kabaria. During investigation of co-accused Jai Mangal, it came to be transpired that petitioner herein is also one of the persons, who had committed theft of brass articles from the factory premises on the date of alleged incident. It has come in the evidence that after alleged incident of theft of brass, the stolen property was distributed inter se co-accused and the petitioner herein also got 70 Kg of brass, which he later sold in the market for 2025:HHC:1364 the sum of Rs. 32,000/-. Co-accused namely Shivji Sahani, Munna Kumar and Yogesh Kumar @ Harry have already been enlarged on bail by this Court vide orders dated 24.06.2024, 11.06.2024 and 27.12.2024 passed in Cr.MP(M) Nos. 1213 of 2024, 1087 of 2024 and 2613 of 2024, whereas other co-accused Brijesh has also been enlarged on bail vide order dated 06.11.2024. Petitioner herein, who is behind bars for more than eight months had earlier applied for bail in the Court of learned Additional Sessions Judge, Nalagarh, but same was dismissed and as such, he approached this Court by way of Cr.MP(M) No.1968 of 2024, but same was withdrawn. Since challan stands filed in the competent court of law and nothing remains to be recovered from him, he has approached this Court in the instant proceedings for grant of regular bail. 4. While fairly admitting factum with regard to filing of Challan in the competent court of law, Mr. Rajan Kahol, learned Additional Advocate General, contends that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of the offence alleged to have been committed by the bail petitioner, he does not deserve any leniency and his prayer for grant of bail, deserves outright rejection. Mr. Kahol, states that since petitioner actively participated in alleged theft and five co-accused are 2025:HHC:1364 yet to be arrested, it may not be in the interest of justice to enlarge him on bail because in that event, he may not only flee from the justice, but may again indulge in these activities. 5. Having heard learned counsel representing the parties and perused material available on record, though this Court is not persuaded to agree with the submission of learned counsel for the petitioner that petitioner has been falsely implicated, rather there is overwhelming evidence adduced on record suggestive of the fact that petitioner on the date of alleged incident actively participated in the incident and he also sold some portion of stolen property in the market for a sum of Rs. 32,000/-, however, having taken note of fact that bail-petitioner has already suffered for more than eight months and four of co-accused already stand enlarged on bail, prayer made on behalf of petitioner for grant of regular bail deserves to be considered. There is nothing in the status report suggestive of the fact that any criminal case stands registered against the petitioner. Since it is the admitted case of the petitioner that 15-16 persons had committed theft on the date of alleged incident and no identification parade was got conducted by the police from the Security Guards, who were allegedly given beatings on the date of alleged incident, it may be too premature to conclude the guilt of the 2025:HHC:1364 petitioner at this stage. If it is so, incarceration of bail-petitioner for an indefinite period, if permitted would amount to pre-trial conviction, which is not permissible under law. 6. Hon’ble Apex Court as well as this Court in catena of cases have repeatedly held that one is deemed to be innocent till the time guilt, if any, of his/her is not proved in accordance with law. Since in the case at hand also, guilt, if any, of the petitioner is yet to be established on record by the prosecution by leading cogent and convincing evidence, this Court sees no reason to curtail the petitioner’s freedom for indefinite period during trial. Though, Mr. Rajan Kahol, learned Additional Advocate General, vehemently argued that five co-accused are yet to be arrested, but that cannot be ground to deny the prayer made on behalf of petitioner. There is nothing on record to suggest that petitioner herein has assisted in escape, if any, of the co- accused from the trial or he provided them shelter, rather petitioner is behind the bars for more than eight months. Apprehension expressed by the learned Additional Advocate General that in the event of petitioner’s being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions as has been fairly stated by the learned counsel for the petitioner. 2025:HHC:1364 7. 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. 8. Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon’ble Apex Court that 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. 9. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the 2025:HHC:1364 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 also, normal rule is of bail and not jail. Apart from above, 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. 10. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced. 11. Hon’ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., decided on 6.2.2018, 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 2025:HHC:1364 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. The relevant paras of the aforesaid judgment are reproduced as under: “2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, 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. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in 2025:HHC:1364 an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973. 5. 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. 12. In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the bail petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 1,00,000/- with two local sureties in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions: (a) 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; (b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; 2025:HHC:1364 (c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and (d) He shall not leave the territory of India without the prior permission of the Court. 13. It is clarified that if the bail petitioner misuses the 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. 14. 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 petition stands accordingly disposed of. 15. The bail petitioner is permitted to produce copy of the order downloaded from the High Court Website and the trial court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise. January 07,2025 (Sandeep Sharma), (shankar) Judge