Devinder Kumar v. State of Himachal Pradesh

him. In the afore background, FIR, as detailed hereinabove, came to be lodged against the bail-petitioner as well as co-accused Gagan @ Yashu and he is behind bars since 29.01.2026. Since investigation in the case at hand is complete and nothing remains to be recovered from the bail-petitioner, he has approached this Court in the instant proceedings for grant of regular bail.

4. While fairly acknowledging factum with regard to completion of investigation, Mr. Rajan Kahol, learned Additional Advocate General, states that though nothing remains to be recovered from the bail-petitioner, but keeping in view the gravity 4 of offence alleged to have been committed by him, he does not deserve any leniency, rather needs to be dealt with severely. Mr. Kahol, states that there is overwhelming evidence adduced on record suggestive of the fact that firstly, bail-petitioner made complainant to shell out sum of Rs.1,00,000/- for sending him to Thailand and thereafter, he further sold him to some unknown for sum of Rs.5,00,000/-. Mr. Kahol, states that unknown persons in Thailand and Myanmar compelled the complainant to do illegal work, as a result thereof, he had to undergo mental trauma and physical torture. He states that petitioner was unauthorizedly sent to Myanmar through “donkey route” and lateron, he was rescued by Government of India. He states that since overwhelming evidence that bail-petitioner in connivance with co- accused Gagan Kumar unauthorizedly sold complainant persons in Thailand, he does not deserve any leniency, rather needs to be dealt with severely. He states in the event of the bail- petitioner being enlarged on bail, he may not only flee from justice, but also indulge in these activities again.

5. Having heard learned counsel for the parties and perused the material available on record, this Court is not 5 persuaded to agree with Mr. Ankit Dhiman, learned counsel for the petitioner that bail-petitioner has been falsely implicated. There is ample material adduced on record suggestive of the fact that firstly bail-petitioner in connivance with the co-accused Gagan Kumar made complainant deposit some amount in their account and thereafter, unauthorizedly sent him to Thailand, from where he was allegedly sent to Myanmar. It has also come in the evidence that bail-petitioner received Rs.5,00,000/- for sending complainant to Thailand and thereafter to Myanmar. It is apparent from the pleadings as well as other material adduced on record that bail- petitioner had made available air tickets to the complainant for going to Thailand and thereafter, complainant, after having reached Thailand, repeatedly contacted the bail-petitioner, but at no point of time, complainant raised issue with regard to his being unauthorizedly sent to Myanmar, coupled with the fact that guilt, if any, of the bail-petitioner is yet to be established by the prosecution by leading cogent and convincing evidence, this Court sees no reason to let the bail-petitioner incarcerate in jail for indefinite period during trial. Careful perusal of transcripts of the WhatsApp Chats inter se complainant and the bail-petitioner 6 clearly reveals that complainant, after his having reached Thailand, repeatedly contacted the bail-petitioner, who at no point of time, raised issue with regard to his being ill-treated or maltreated, rather he repeatedly conveyed to the bail-petitioner that he was enjoying at Thailand. “Whether complainant, after his having reached Thailand, was further deported to Myanmar and subjected to beatings is a question to be decided by the learned trial Court in totality of evidence led on record by the prosecution, but taking note of the fact that bail-petitioner, besides providing air tickets, also made arrangements of boarding and lodging in Thailand, this Court sees no reason to curtail the freedom of the bail-petitioner for indefinite period during trial.

6. Hon’ble Apex Court as well as this Court have held in catena of cases that one is deemed to be innocent till the time his/her guilt is not proved, in accordance with law. Since guilt, if any, of the bail petitioner is yet to be established on record by the prosecution by leading cogent and convincing evidence, this court sees no reason to curtail the freedom of the bail petitioner for an indefinite period during trial. Apprehension expressed by learned Additional Advocate General, that in the event of being enlarged 7 on bail, bail petitioner may flee from justice can be best met by putting the bail petitioner to stringent conditions.

7. 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 a fundamental postulate of criminal jurisprudence the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon’ble Apex Court further held that while considering prayer for grant of bail, 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. Hon’ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid 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 8 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, 9 taken by Parliament by

1973. An equally soft approach to incarceration has 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

8. Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 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.

9. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the 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 10 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.

10. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced.

11. In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, petitioner has carved out a case for grant of bail. Accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs.5,00,000/- with two sureties in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions: 11 to do so, seek exemption (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 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, before the investigating agency.

12. 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.

13. 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. The petition stands accordingly disposed of.

14. The bail petitioner is permitted to produce the copy of the order downloaded from the High Court Website and the learned trial Court shall not insist for certified copy of the order, 12 however, it may verify the order from the High Court website or otherwise. April 09, 2026 (shankar) (Sandeep Sharma) Judge