Gravity alone cannot be decisive ground to deny bail; competing factors are required to be balanced by the court

High Court of Himachal Pradesh: A Single Judge Bench comprising of Sandeep Sharma, J. granted anticipatory bail to the petitioners in an application filed under Section 438 CrPC, holding that object of the bail is to secure attendance of the accused in the trial and the proper test to be applied while deciding bail application is whether it is probable that the party will appear to take his trial.

The petitioners were co-accused in a criminal case under Sections 342, 323, 377, 149, etc. of IPC. It was alleged that the petitioners were present in the room while the main accused committed unnatural intercourse with the complainant, and they were also alleged to have given thrashings to the complainant. Learned counsel for the petitioners contended that no overt act was alleged against the petitioners and prayed for grant of bail.

The High Court perused the record and found that there were no specific allegations against the bail petitioners, indicative of the fact that injuries allegedly caused on the body of the complainant were caused by the bail petitioners, who allegedly were present in the room. The Court was of the opinion that though the involvement of bail petitioners in the offence alleged against them was to be considered and decided by the learned Trial Court, but the High Court after having taken note of the material available on record, saw no reason to keep the bail petitioners in custody for indefinite period, especially when guilt of the petitioners was still to be proved.

The High Court referred to Apex Court decisions to hold 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. Gravity alone cannot be decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion.

The Court was of the view that in the facts and circumstances of the case, the petitioners could not be allowed to be incarcerated in jail for an indefinite period. Accordingly, the petitioners were granted anticipatory bail, subject to the conditions imposed. [Mahinder Pal Singh alias Raja v. State of H.P.,  2017 SCC OnLine HP 1666, dated 28.11.2017]

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