28.03.2025 vs State Of H.P on 3 April, 2025

Himachal Pradesh High Court

Reserved On: 28.03.2025 vs State Of H.P on 3 April, 2025

Author: Jyotsna Rewal Dua

Bench: Jyotsna Rewal Dua

2025:HHC:8907

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr.MP(M) No.18 of 2025
Reserved on: 28.03.2025
Decided on: 03.04. 2025
_________________________________________________________________
Sanju Tamang ….Petitioner

Versus
State of H.P. …Respondent
_________________________________________________________________
Coram
Ms. Justice Jyotsna Rewal Dua

1 Whether approved for reporting?

_________________________________________________________________
For the petitioner: Mr. Yashveer Singh Rathore,
Advocate.

For the respondent: Mr. L.N.Sharma, Additional Advocate
General.

SI Nand Lal, Police Station Manali,
District Kullu, H.P. present with
record.

Jyotsna Rewal Dua, Judge

Petitioner is co-accused in FIR No.270/2018,

dated 26.10.2018, registered under Sections 341, 382, 323,

504 and 376D of Indian Penal Code at Police Station Manali,

District Kullu, H.P. He was arrested on 05.12.2018 and by

means of the present petition, seeks enlargement on regular

1
Whether reporters of Local Papers may be allowed to see the judgment?

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bail, primarily on account of delay in trial.

2. The prosecution case in nut shell is that a lady of

Russian nationality (hereinafter referred to as the

complainant) was admitted for treatment at Mission Hospital

Manali. She lodged a complaint on 26.10.2018 that while

coming alongwith her friend, Sh. Dinesh Baloon, from old

Manali towards new Manali via Hadimba Temple road, at

around 12 O’clock in the midnight, two unknown persons

(present petitioner and one Sh. Sanjay) gave them beatings,

abused in filthy language, snatched their belongings,

compelled the complainant’s friend to go to ATM for giving

them cash. The complainant further alleged that both the

accused persons, including the present petitioner, brought

her to a nearby forest and raped her. Whereafter, they left

her in the forest. The complainant was taken to Mission

Hospital Manali. On her statement, the FIR was registered.

During investigation, with the help of CCT Camera

Footage, both the accused persons were traced out. Their

complicity was found in the incident and they were arrested

on 05.12.2018. Medical examination of the complainant was

got conducted. During investigation, it transpired that

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accused persons had committed sexual intercourse with the

complainant using condoms. Spot was got identified from the

accused persons as well. From the spot, used condoms were

also recovered. Accused persons were also got identified from

Sh. Dinesh Baloon by conducting test identification parade

before the learned Magistrate. On completion of the

investigation, charge sheet in the case was presented on

28.01.2019. Supplementary challan was presented on

16.02.2021.

3. Learned counsel for the petitioner contended

that the petitioner had no role in the commission of crime

lodged against him. He is not connected in any manner with

the case. There is no link evidence to show involvement of the

petitioner in the case. Petitioner was apprehended after lapse

of more than a month and only on the basis of suspicion.

Medical evidence available on record of the case belies the

prosecution version. Material witnesses examined by the

prosecution have not supported the prosecution case.

Learned counsel for the petitioner also pleaded that despite

grant of several opportunities to prosecution, till date the

complainant and her friend Sh.Dinesh Baloon have not

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turned up to depose before the Court. Due to delay owing to

the prosecution, there is no possibility of conclusion of the

trial in the near future. The petitioner, therefore, deserves to

be enlarged on bail at this stage.

Learned Additional Advocate General while

opposing the bail plea, submitted that petitioner is charged

with the commission of heinous offence. His involvement in

the crime has been sufficiently proved during investigation.

The petitioner does not deserve leniency at this stage when

trial is underway and some of the material prosecution

witnesses, including the complainant and her friend, are yet

to be examined. It is also apprehended that the petitioner, if

released on bail, may influence the remaining prosecution

witnesses.

4. Consideration

4(i). Petitioner, seeks bail on ground of delay in trial. In

Union of India Versus K.A. Najeeb2, Hon’ble Apex Court

considered various judicial precedents where Article 21 of the

Constitution of India was invoked in case of gross delay in

disposal of cases of under trials and consequential necessity

to release them on bail. The earlier decisions were reiterated

2
(2021) 3 SCC 713

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that liberty granted by Part-III of the Constitution, would

cover within its protective ambit not only due procedure and

fairness, but also access to justice and speedy trial. It was

held that once it is obvious that a timely trial would not be

possible and the accused have suffered incarceration for a

significant period of time, the Courts would ordinarily be

obligated to enlarge them on bail. Some relevant paras from

the judgments are extracted hereinafter:-

“10. It is a fact that the High Court in the instant case
has not determined the likelihood of the respondent being
guilty or not, or whether rigours of Section 43D(5) of UAPA
are alien to him. The High Court instead appears to have
exercised its power to grant bail owing to the long period
of incarceration and the unlikelihood of the trial being
completed anytime in the near future. The reasons
assigned by the High Court are apparently traceable back
to Article 21 of our Constitution, of course without
addressing the statutory embargo created by Section
43D(5) of UAPA.

11. The High Court’s view draws support from a batch
of decisions of this Court, including in Shaheen Welfare
Assn, laying down that gross delay in disposal of such
cases would justify the invocation of Article 21 of the
Constitution and consequential necessity to release the
undertrial on bail. It would be useful to quote the following
observations from the cited case:

“10. Bearing in mind the nature of the crime and
the need to protect the society and the nation,
TADA has prescribed in Section 20(8) stringent
provisions for granting bail. Such stringent

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provisions can be justified looking to the nature of
the crime, as was held in Kartar Singh case, on the
presumption that the trial of the accused will take
place without undue delay. No one can justify gross
delay in disposal of cases when undertrials
perforce remain in jail, giving rise to possible
situations that may justify invocation of Article 21.”

…(emphasis supplied)

12. Even in the case of special legislations like the
Terrorist and Disruptive Activities (Prevention) Act, 1987 or
the Narcotic Drugs and Psychotropic Substances Act, 1985
(“the NDPS Act“) which too have somewhat rigorous
conditions for grant of bail, this Court in Paramjit Singh v.
State (NCT of Delhi), Babba v. State of Maharashtra and
Umarmia alias Mamumia v. State of Gujarat enlarged the
accused on bail when they had been in jail for an
extended period of time with little possibility of early
completion of trial. The constitutionality of harsh
conditions for bail in such special enactments, has thus
been primarily justified on the touchstone of speedy trials
to ensure the protection of innocent civilians.

13. We may also refer to the orders enlarging similarly
situated accused under the UAPA passed by this Court in
Angela Harish Sontakke v. State of Maharashtra. That
was also a case under Sections 10, 13, 17, 18, 18A, 18B,
20, 21, 38, 39 and 40(2) of the UAPA. This Court in its
earnest effort to draw balance between the seriousness of
the charges with the period of custody suffered and the
likely period within which the trial could be expected to be
completed took note of the five years’ incarceration and
over 200 witnesses left to be examined, and thus granted
bail to the accused notwithstanding Section 43D(5) of
UAPA. Similarly, in Sagar Tatyaram Gorkhe v. State of
Maharashtra, an accused under the UAPA was enlarged
for he had been in jail for four years and there were over
147 witnesses still unexamined.

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15. This Court has clarified in numerous judgments
that the liberty guaranteed by Part III of the Constitution
would cover within its protective ambit not only due
procedure and fairness but also access to justice and a
speedy trial. In Supreme Court Legal Aid Committee
(Representing Undertrial Prisoners) v. Union of India, it
was held that undertrials cannot indefinitely be detained
pending trial. Ideally, no person ought to suffer adverse
consequences of his acts unless the same is established
before a neutral arbiter. However, owing to the
practicalities of real life where to secure an effective trial
and to ameliorate the risk to society in case a potential
criminal is left at large pending trial, Courts are tasked
with deciding whether an individual ought to be released
pending trial or not. Once it is obvious that a timely trial
would not be possible and the accused has suffered
incarceration for a significant period of time, Courts would
ordinarily be obligated to enlarge them on bail.

17. It is thus clear to us that the presence of statutory
restrictions like Section 43D (5) of UAPA per se does not
oust the ability of Constitutional Courts to grant bail on
grounds of violation of Part III of the Constitution. Indeed,
both the restrictions under a Statue as well as the powers
exercisable under Constitutional Jurisdiction can be well
harmonised. Whereas at commencement of proceedings,
Courts are expected to appreciate the legislative policy
against grant of bail but the rigours of such provisions will
melt down where there is no likelihood of trial being
completed within a reasonable time and the period of
incarceration already undergone has exceeded a
substantial part of the prescribed sentence. Such an
approach would safeguard against the possibility of
provisions like Section 43-D (5) of UAPA being used as the
sole metric for denial of bail or for wholesale breach of

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constitutional right to speedy trial.”

X Vs. State of Rajasthan & Anr. 3 was an appeal

preferred against an order granting bail to a person accused

of rape. The Apex Court held that ordinarily in serious

offences like rape, murder, dacoity, etc., once the trial

commences and the prosecution starts examining its

witnesses, the Court be it the Trial Court or the High Court

should be loath in entertaining the bail application of the

accused. Hon’ble Apex Court further held that once the trial

commences, it should be allowed to reach its final conclusion.

The moment the High Court exercises its discretion in favour

of the accused and orders his release on bail by looking into

depositions, it will have its own impact on pending trial.

However, Hon’ble Apex Court further held that in the event of

trial getting unduly delayed and that too for no fault of

accused, the Court may be justified in ordering his release on

bail on the ground of infringement of accused’s right to

speedy trial. Relevant portion of the judgment is as under: –

“14. Ordinarily in serious offences like rape, murder, dacoity,
etc., once the trial commences and the prosecution starts
examining its witnesses, the Court be it the Trial Court or
the High Court should be loath in entertaining the bail
application of the accused.

3

SLP(Cr.) No.13378 of 2024, decided on 27.11.2024

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15. Over a period of time, we have noticed two things, i.e., (i)
either bail is granted after the charge is framed and just
before the victim is to be examined by the prosecution
before the trial court, or (ii) bail is granted once the
recording of the oral evidence of the victim is complete by
looking into some discrepancies here or there in the
deposition and thereby testing the credibility of the victim.

16. We are of the view that the aforesaid is not a correct practice
that the Courts below should adopt. Once the trial
commences, it should be allowed to reach to its final
conclusion which may either result in the conviction of the
accused or acquittal of the accused. The moment the High
Court exercises its discretion in favour of the accused and
orders release of the accused on bail by looking into the
deposition of the victim, it will have its own impact on the
pending trial when it comes to appreciating the oral
evidence of the victim. It is only in the event if the trial gets
unduly delayed and that too for no fault on the part of the
accused, the Court may be justified in ordering his release
on bail on the ground that right of the accused to have a
speedy trial has been infringed.”

4(ii). In the instant case, a status report was filed by

the respondent-State in the case on 11.03.2025. As per the

report, material prosecution witness Sh. Dinesh Baloon had

been summoned twenty one times by the learned Trial Court,

but had remained present only once in the Court. Taking

note of this status report, following order was passed in this

petition on 11.03.2025: –

“Learned Deputy Advocate General has filed

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today a fresh status report in terms of which material
prosecution witness Sh. Dinesh Baloon, had been
summoned 21 times by the learned Trial Court but
remained present only once before the learned Trial
Court. However, his statement could not be recorded at
that time.

Let the respondents file an affidavit as to how
many material witnesses remain to be examined; the
details of their having been summoned; the result
thereof and as to why out of 51 prosecution witnesses
in the FIR that was registered on 05.12.2018,
statement of only 21 witnesses have been recorded till
date.

List on 19.03.2025.”

Pursuant to the above order, compliance affidavit

has been filed by the respondent-State. This affidavit states

that twenty-five prosecution witnesses still remain to be

examined in this case, out of which, twelve are material and

remaining are formal witnesses. Out of twelve material

witnesses, listed in Annexure R-4 appended alongwith the

affidavit, four are Russian nationals; two are police officials;

four are doctors and the remaining two material witnesses

are private individuals including Sh. Dinesh Baloon, friend of

the complainant. The status report and the compliance

affidavit clearly state that service of summons has been

attempted upon Sh. Dinesh Baloon, a Nepali national, with

his local address of Manali, twenty-one times for his

– 11 – 2025:HHC:8907

appearance before the learned Trial Court. During hearing of

the bail petition, learned Additional Advocate General

submitted that this material witness, despite having been

summoned twenty-one times, could be served only once, that

too in the year 2019; That it has not been possible to serve

him ever since; He has never appeared before the learned

Trial Court. Compliance affidavit shows that even the second

individual cited as material witness has not deposed despite

issuance of summons to him eight times. The complainant

has also not deposed as yet despite having been summoned

fifteen times.

4(iii) Petitioner, no doubt, is accused of commission of

a heinous offence, but he also has right of speedy trial. He

cannot be permitted to languish behind the bars for an

indefinite period awaiting completion of trial. Looking at the

present pace of the trial, feasibility of early completion of trial

seems very very remote. Respondents have not attributed

slow pace of trial to the petitioner. The petitioner has

already spent more than six years in custody. Petitioner

cannot be left in lurch to remain as an under trial prisoner

for an indefinite period of time especially when early

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conclusion of trial is unlikely. Prosecution’s apprehension of

petitioner’s influencing material witnesses appears to be

misplaced as prosecution has not been able to produce two

private individuals despite summoning them repeatedly.

Remaining material witnesses are either Russian nationals,

doctors or police personnel. This aspect can otherwise be

taken care of by imposing stringent conditions. The

petitioner, at this stage, has made out a case for his

enlargement on regular bail for delay in trial.

5. In view of above, the present petition is allowed.

Petitioner is ordered to be released on bail in the aforesaid

FIR on his furnishing personal bond in the sum of

Rs.1,00,000/- (Rupees One Lakh only) with two local sureties

each in the like amount to the satisfaction of the learned Trial

Court having jurisdiction over the Police Station concerned,

subject to the following conditions: –

(i). The petitioner shall not tamper with the
prosecution evidence or influence/contact
prosecution witnesses in any manner
whatsoever.

(ii). The petitioner will not leave India without prior
permission of the Court.

(iii). The petitioner shall not make any inducement,
threat or promise, directly or indirectly, to the
Investigating Officer or any person acquainted

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with the facts of the case to dissuade him/her
from disclosing such facts to the Court or any
Police Officer.

(iv). Petitioner shall attend the trial on every hearing,
unless exempted in accordance with law.

(v) The petitioner shall not contact, threaten or
intimidate the victim/complainant and their
family members in any manner whatsoever.

(vi). Petitioner shall inform the Station House Officer
of the concerned police station about his place
of residence during bail and trial. Any change in
the same shall also be communicated within two
weeks thereafter. Petitioner shall furnish details
of his Aadhar Card, Telephone Number, E-mail,
PAN Card, Bank Account Number, if any.

It is made clear that observations made above are

only for the purpose of adjudication of instant bail petition

and shall not be construed as an opinion on the merits of the

matter. Learned Trial Court shall decide the matter without

being influenced by any of the observations made

hereinabove.

With the aforesaid observations, the present

petition stands disposed of, so also the pending

miscellaneous application(s), if any.

The pending miscellaneous application(s), if any,

also stand disposed of.

Jyotsna Rewal Dua
Judge
Digitally signed by PRAVEEN KAUSHAL

April 3, 2025
PRAVEEN
DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH
COURT OF HIMACHAL PRADESH SHIMLA, Phone=
974672e58263d1efde6d3e05df3d1021e1b0d2b1765b7af15aba3524b4
R.Atal b9b1df, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=
54cab263e44e8d394ec98ece297f5f8d632420bfe805a7b552a8ef6776c
38912, CN=PRAVEEN KAUSHAL

KAUSHAL
Reason: I agree to the terms defined by the placement of my signature
in this document
Location:

Date: 2025.04.03 15:39:44+05’30’
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