Himachal Pradesh High Court
____________________________________________________________ vs State Of Himachal Pradesh on 21 April, 2025
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.832 of 2025
Decided on: 21.04.2025
____________________________________________________________
Isha Sharma ...........Petitioner
Versus
State of Himachal Pradesh ..........Respondent
____________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioner : Ms. Shivani Priya & Ms.
Dhanvanti, proxy counsels, for
Ms. Anubhuti Sharma, Advocate.
For the Respondent : Mr. Anup Rattan, Advocate
General, Mr. Rajan Kahol, Mr.
Vishal Panwar & Mr. B.C. Verma,
Additional Advocates General
with Mr. Ravi Chauhan, Deputy
Advocate General, for the
respondent-State.
ASI Bharat Bhushan, Police
Station Shimla West, District
Shimla, HP present in person.
____________________________________________________________
Sandeep Sharma, Judge (oral):
Sequel to order dated 11.04.2025, whereby
petitioner was ordered to be enlarged on interim bail in FIR
1
Whether the reporters of the local papers may be allowed to see the judgment?
No. 0042 dated 11.03.2025 under Sections 115 (2), 191(2),
191(3), 109 and 190 of BNS, registered at PS Shimla West,
District Shimla, HP, respondent-State has filed status report
prepared on the basis of the investigation carried out by the
Investigating Agency and ASI Bharat Bhushan has come
present with record.
2. Close scrutiny of status report reveals that
pursuant to order dated 11.04.2025, petitioner herein has
joined investigation and at this stage, nothing remains to be
recovered from her. Though, Mr. Rajan Kahol, learned
Additional Advocate General, attempted to argue that
petitioner is accused of heinous crime punishable under
Section 109 of BNS, but he was unable to dispute that co-
accused in similar facts and circumstances already stands
enlarged on bail. Otherwise also, careful perusal of FIR,
detailed hereinabove, reveals that complainant Yograj lodged
a complaint on 11.03.2025 that while he along with his
friends was having tea in eatery, 30-40 students belonging to
Akhil Bharatiya Vidyarthi Parishad came on the spot carrying
weapons. He further alleged that firstly afore persons threw
stones and thereafter, also attacked him as well as his friends
with sharp edged weapons, as a result thereof, person namely
Sanju suffered serious injuries. Though in view of afore
statement made by the complainant, FIR, detailed
hereinabove, came to be lodged against 32 persons including
petitioner, however, bare reading of FIR in its entirety,
nowhere suggests that petitioner herein caused injury to a
person namely Sanju, who allegedly suffered grievous injuries
in the incident. Though contents of FIR show presence of the
petitioner on the spot, but admittedly same is silent with
regard to injury, if any, inflicted by the petitioner on the
person namely Sanju. Role, if any, played by the petitioner in
the alleged incident is yet to be established by the prosecution
by leading cogent and convincing evidence and as such, this
Court sees no reason for custodial interrogation of the
petitioner, especially when, other co-accused already stand
enlarged on bail.
4. By now it is well settled that freedom of an
individual is of utmost importance and cannot be curtailed for
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 petitioner is yet to
be proved, in accordance with law.
5. 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
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
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
6. 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.
7. 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
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.”
8. 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.
9. Consequently, in view of the above, order dated
11.04.2025 passed by this Court, is made absolute, with
following conditions:-
a. she shall make herself 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. she shall not tamper with the prosecution
evidence nor hamper the investigation of the
case in any manner whatsoever;
c. she 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; andd. she shall not leave the territory of India without
the prior permission of the Court.
10. It is clarified that if the petitioner misuses her
liberty or violates any of the conditions imposed upon her, the
Investigating Agency shall be free to move this Court for
cancellation of the bail.
11. 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.
12. The bail petition stands disposed of accordingly.
The petitioner is 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.
April 21, 2025 (Sandeep Sharma),
(sunil) Judge
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