Sandeep Sharma, J
1. Bail petitioner, Rahul Malhotra, who is behind the bars since 15.7.2020, has approached this Court in the instant proceedings filed under Section 439
CrPC for grant of regular bail in FIR No. 6, dated 6.1.2020, registered at Police Station Aut, District Mandi, Himachal Pradesh under Ss. 279, 337,
338, 304 and 304AA IPC and Ss. 192 and 192A of Motor Vehicles Act.
2. Perusal of status report filed by the respondent-State in terms of order dated 4.8.2020, reveals that on 6.1.2020, a vehicle (Innova) bearing
registration No. HP-02-5197, being driven by present bail petitioner met with an accident near Aut Tunnel, as a consequence of which, occupants of
the vehicle, who were tourists and had come from West Bengal to visit Kullu and Manali, sustained injuries and one of the occupants of the vehicle
succumbed to the injuries, as such, FIR, detailed herein above came to be registered against the bail petitioner. Bail petitioner was earlier enlarged on
bail but subsequently, police after having received report of RFSL, Mandi, wherein it was opined that contents of alcohol were found in the blood and
urine samples of the bail petitioner, incorporated S.304AA IPC. Since aforesaid offence is non-bailable having provision of seven years imprisonment,
Police arrested the bail petitioner, after having served him with notice under S.41 CrPC. In the aforesaid background, bail petitioner has approached
this Court in the instant proceedings, for grant of regular bail.
3. Having heard learned counsel for the petitioner and perused the material available on record, this court finds that on the date of alleged incident,
vehicle was being driven by the bail petitioner but whether at that time, vehicle was being driven in a rash and negligent manner by the petitioner under
the influence of liquor, is yet to be proved in accordance with law by way of cogent and convincing evidence. No doubt, report of RFSL suggests that
contents of alcohol were found in blood and urine samples of the bail petitioner but since factum with regard to driving of vehicle in question by the bail
petitioner that too under the influence of liquor is yet to be established on record, therefore, there appears to be no justification for keeping the bail
petitioner behind the bars for an indefinite period during trial, especially when nothing remains to be recovered form the bail petitioner.
4. Recently, 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 held
that freedom of an individual can not be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has further held by the
Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held 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.â€
5. In Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49, Hon'ble Apex Court 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.
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 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.
7. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down the various principles to be kept
in mind, while deciding petition for bail i.e. prima facie case against the accused, nature and gravity of offence, severity of punishment, likelihood of
repeating of the offence by accused etc.
8. In view of above, bail petitioner has carved out a case for himself. Consequently, present petition is allowed. Petitioner is ordered to be enlarged on
bail, subject to furnishing bail bonds in the sum of Rs.1,00,000 with one local surety in the like amount, to the satisfaction of the Investigating
Officer/learned trial Court concerned, besides the 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;
(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.
(e) He shall surrender passport, if any, held by him.
9. It is clarified that if the 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.
10. 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 petition alone.
The petition stands accordingly disposed of.
Copy Dasti.
