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Petitioner
of
H
Versus
State of Himachal Pradesh.
Respondent
Coram
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rt
ig
The
record
of
the
investigation
reveals
that
the
complainant by holding out that he too have divorced. They have been in
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physical relationship since the year 2011 and now accused the petitioner
for subjected her to sexual intercourse on the pretext of marriage.
of
H
early as in the year 1978, the Honble Supreme Court in Gurcharan Singh
vs.State (Delhi Administration) (1978) 1 SCC 118 laid the following
ou
rt
"22. In other non-bailable cases the Court will exercise its judicial
discretion in favour of granting bail subject to subsection (3) of
Section 437 Cr.P.C if it deems necessary to act under it. Unless
exceptional circumstances are brought to the notice of the Court
which may defeat proper investigation and a fair trial, the Court will
not decline to grant bail to a person w ho is not accused of an offence
ig
******
24. Section 439(1) CrPC of the new Code, on the other hand, confers
special powers on the High Court or the Court of Session in respect
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of
H
accused only after he has failed before the Magistrate and after the
investigation has progressed throwing light on the evidence and
circumstances implicating the accused. Even so, the High Court or
the Court of Session will have to exercise its judicial discretion in
considering the question of granting of bail under Section 439(1)
ou
rt
ig
4.
The Honble
versus 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)
to
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of
H
ou
rt
(1980) 2 SCC 565, laid down the following parameters for grant of bail:111. No inflexible guidelines or straitjacket formula can be provided for
grant or refusal of anticipatory bail. We are clearly of the view that
no attempt should be made to provide rigid and inflexible
guidelines in this respect because all circumstances and situations
ig
(ii)
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of
H
(v) Where the accusations have been made only with the object of
injuring or humiliating the applicant by arresting him or her.
(vi) Impact of grant of anticipatory bail particularly in cases of large
magnitude affecting a very large number of people.
(vii) The courts must evaluate the entire available material against
the accused very carefully. The court must also clearly
ou
rt
ig
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.
of
H
ou
rt
bail will be taken care of. The legislature in its wisdom has
entrusted the power to exercise this jurisdiction only to the
judges of the superior courts. In consonance with the
legislative intent ion we should accept the fact that the
discretion would
In
(Emphasis supplied)
5.
ig
(2012) 1 SCC 40, the Honble Supreme Court made the following pertinent
observations in paras 21, 22, 23, and 40 as under:21. In bail applications, generally, it has been laid down from the
earliest times t hat 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 is 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.
22. From the earliest times, it was appreciated that detention in custody
pending completion of trial could be a cause of great hardship.
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of
H
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object of a 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 un -convicted
person for the purpose of giving him a taste of imprisonment as a
lesson.
40. The grant or refusal to grant bail lies within the discretion of the
Court. The grant or denial is regulated, to a large extent, by the
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6.
7.
bail.
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material in support thereof is not only the considerations for declining the
After-all, at the pre-conviction stage, there is presumption of
of
H
ensure his availability to face the trial and receive the sentence that may be
passed.
ou
rt
ig
13. In Kalyan Chandra Sarkar (AIR 2005 SC 921) (supra), it was observed:
"8. It is trite law that personal liberty cannot be taken away except
in accordance with the procedure established by law. Personal
liberty is a constitutional guarantee. However, Article 21 which
guarantees the above right also contemplates deprivation of
personal liberty by procedure established by law. Under the
of
H
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rt
ig
10
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of
H
ig
ou
rt
11
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rt
of
H
ig
"21. In bail applications, generally, it has been laid down from the
earliest times that 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 is 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.
24. In the instant case, we have already noticed that the "pointing
finger of accusation" against the appellants is "the seriousness of
the charge". The offences alleged are economic offences which
have resulted in loss to the State exchequer. Though, they
contend that there is a possibility of the appellants tampering with
the witnesses, they have not placed any material in support of the
allegation. In our view, seriousness of the charge is, no doubt, one
of the relevant considerations while considering bail applications
but that is not the only test or the factor: the other factor that also
requires to be taken note of is the punishment that could be
imposed after trial and conviction, both under the Penal Code and
the Prevention of Corruption Act. Otherwise, if the former is the
only test, we would not be balancing the constitutional rights but
rather "recalibrating the scales of justice.
12
8.
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man, it was for her to restrain herself and not indulge in intimate activities.
No doubt, it is the responsibility, moral and ethical both, on the part of man
of
H
protector of her own body and therefore, her prime responsibility to ensure
that in the relationship, protects her own dignity and modesty. A woman is
not expected to throw herself to a man and indulge him promiscuity thereby
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rt
would in any manner interfere with the trial of the case and it is not even
the allegation of the prosecution that petitioner would flee from justice. In
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13
and regularly
attend the
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(i)
seek
exemption
of
H
(ii)
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rt
(iv)
Learned Judicial Magistrate Ist Class, Una, is directed to comply with the
issued
directions
by
the
High
Court,
vide
communication
11.
ig
expression of opinion on the merits of the case and the trial Court shall