1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.MP(M) Nos.764 & 765 of 2026 Decided on: 19.05.2026 ____________________________________________________________ 1. Cr.MP(M) No.764 of 2026 Durgesh Devi ………..Petitioner Versus State of Himachal Pradesh ……….Respondent ____________________________________________________________ 2. Cr.MP(M) No.765 of 2026 Brijesh ………..Petitioner Versus State of Himachal Pradesh ……….Respondent ____________________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioner(s) : Ms. Pooja Thakur, Advocate vice Ms. Kiran Negi, Advocate. For the Respondent(s) : Mr. Rajan Kahol & Mr. Vishal Panwar, Additional Advocates General with Mr. Anish Banshtu, Deputy Advocates General. HC Pankaj No.04, PS Reckong Peo, District Kinnaur, Himachal Pradesh, present in person along with record. ____________________________________________________________ 1 Whether the reporters of the local papers may be allowed to see the judgment? 2 Sandeep Sharma, Judge (oral): Sequel to orders dated 06.05.2026, whereby this Court enlarged the bail-petitioners on interim bail in case FIR No.36/2025, dated 05.06.2025, under Sections 305, 3(5), 61(2) of BNS, registered at Police Station Reckong Peo, District Kinnaur, HP, respondent/State has filed status report and HC Pankaj has come present with record. Record perused and returned. 2. Close scrutiny of status report/ record reveals that on 05.06.2025, Sh. Jagdish Soni, proprietor Jagdama Jewellers, Reckong Peo lodged a complaint at Police Station Reckong Peo, alleging therein that on 04.06.2025, two customers had come to his shop for purchasing jewellery. He alleged that while closing the shop in the evening, they found that golden chain and locket weighing 25 grams were missing. He alleged that after having checked the CCTV footage, it transpired that at about 10.26 a.m., two women, who had come to the shop to buy jewellery, had stolen one 3 chain and locket. In the afore background, FIR detailed hereinabove came to be lodged against the unknown person. However, during investigation, it transpired that two women, namely Durgesh Devi and Sarvesh along with one male, namely Brijesh, had come to the jewellery shop, as detailed hereinabove, with an intent to commit theft. Brijesh had brought aforesaid two women in his car and thereafter, waited outside the shop and as soon as theft was committed by the two women named hereinabove, all of them fled from the spot in the car being driven by Brijesh. One of the accused namely Sarvesh, who had actually stolen the chain and locket, was arrested and thereafter, released on bail by the learned Chief Judicial Magistrate, Reckong Peo. However, the bail-petitioners, who had not themselves committed the theft, but were allegedly parties to the incident, approached this Court in the instant proceedings for grant of interim bail. 3. Vide order dated 06.05.2026, this Court, enlarged the bail-petitioners on interim bail subject to condition that 4 they shall join investigation. Ms. Pooja Thakur, learned vice counsel for the petitioners, states that pursuant to order dated 06.05.2026, both the above named bail-petitioners have already joined investigation and at present, nothing remains to be recovered from them, as such, they deserve to be enlarged on bail. 4. While fairly admitting factum with regard to joining of investigation by the petitioners, Mr. Rajan Kahol, learned Additional Advocate General, contended that though petitioners have joined investigation, but till date, they have not got the recovery of stolen articles effected, as such, prayer made on their behalf to make order dated 06.05.2026 absolute may not be accepted. Mr. Kahol further submitted that bail-petitioners are very clever and habitual offenders and in the event of their being enlarged on bail, they may not only flee from justice but may again indulge in these activities. 5 5. Having heard learned counsel for the parties and perused material available on record, this Court finds that on the date of alleged incident, two women namely, Sarvesh and Durgesh Devi, had entered the Jagdama Jewellery shop, situate at Reckong Peo and thereafter, while owner/salesman of the shop was showing the different articles, co-accused Sarvesh picked up the gold ornaments and kept the same in her fist. Both the above named persons thereafter sat in a car, which was waiting outside and was being driven by the bail-petitioner Brijesh. Co-accused Sarvesh, who had actually picked up the gold ornaments from the jewellery box, already stands enlarged on bail pursuant to order passed by learned Additional Chief Judicial Magistrate, Reckong Peo, whereas bail-petitioners are on interim bail vide order dated 06.05.2026 passed by this Court. 6. Though investigation is almost complete as has been fairly stated by Mr. Rajan Kahol, learned Additional Advocate General, but since recovery of stolen articles is yet 6 to be effected, prayer made on behalf of the bail-petitioners for grant of interim bail is being opposed on the ground that stolen articles are yet to be recovered. However, this Court is of the view that once person, who had actually stolen the property, already stands enlarged on bail, bail-petitioners, who were simply accomplice, cannot be sent to police custody as is being demanded. Since recovery of stolen articles is yet to be effected from accused namely Sarvesh, who already stands enlarged on bail, there appears to be no justification for this Court to reject the prayer made on behalf of the petitioners for grant of bail on the ground of recovery. CCTV footage placed on record clearly reveals that gold ornaments were stolen by accused Sarvesh. Whether bail-petitioners had prior intimation with regard to plan of co-accused Sarvesh or whether after the theft allegedly committed by the Sarvesh, amount, if any, received from the sale of the stolen articles was distributed inter se all the accused, are the questions to be decided by the learned Court below in totality of evidence 7 collected on record by the prosecution. However, taking note of the fact that main accused already stands enlarged on bail, there appears to be no justification to grant custody of the bail-petitioners to the police, especially when it is not in dispute that investigation is already complete and police has definite knowledge that gold ornaments were actually stolen by the co-accused Sarvesh. It is not in dispute that above named Sarvesh remained in police custody for a sufficient time before her being granted regular bail by learned Chief Judicial Magistrate, Kinnaur at Reckong Peo. Though case at hand is to be decided by the learned Court below in totality of evidence led on record by the respective parties, but having regard to aforesaid aspects of the matter, this Court sees no reason to send the bail-petitioners to the police custody, especially when, pursuant to the order passed by this Court, they have already joined the investigation. 7. By now it is well settled that freedom of an individual is of utmost importance and cannot be curtailed for 8 indefinite period. Till the time guilt of accused is not proved, in accordance with law, he is deemed to be innocent. In the case at hand, the guilt, if any, of the bail petitioners is yet to be proved, in accordance with law. 8. The 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 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 accused is not proved, in accordance with law, he is deemed to be innocent. The relevant paras No.2 to 5 of the 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 9 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 an appropriate case. It is also necessary for the judge to consider whether the 10 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 9. 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 11 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 Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; 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 12 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.” 11. 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. 13 12. 13 12. Consequently, in view of the above, orders dated 06.05.2026 passed by this Court, are made absolute, with following conditions:- a. 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; b. they shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c. they 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 d. they shall not leave the territory of India without the prior permission of the Court. 13. It is clarified that if the petitioners misuse their liberty or violate any of the conditions imposed upon them, the Investigating Agency shall be free to move to this Court for cancellation of the bail. 14 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 these applications alone. 15. The bail petitions stand disposed of accordingly. The petitioners are permitted to produce copy of 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. May 19, 2026 (Sandeep Sharma), (sunil) Judge