Himachal Pradesh High Court
21 Years vs State Of Uttar Pradesh & Anr on 18 April, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 18TH DAY OF APRIL, 2022
.
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL MISC.PETITION (MAIN) No.757 OF 2022
Between:
ASHISH SAHOTA, SON OF SH.
PARVEEN KUMAR, R/O WARD NO.5,
VILLAGE RAMPUR, TEHSIL UNA,
DISTRICT UNA, H.P. AGED ABOUT
21 YEARS, PRESENTLY LODGED IN
DISTRICT JAIL BANGARH, UNA,
HIMACHAL PRADESH.
....PETITIONER
(BY SH. N.K. THAKUR, SENIOR ADVOCATE
WITH MS. RITU SINGH AND MR. KARAN VEER
SINGH, ADVOCATES).
AND
STATE OF HIMACHAL PRADESH
....RESPONDENT
(BY MR. SUDHIR BHATNAGAR AND
MR. DESH RAJ THAKUR,
ADDITIONAL ADVOCATE GENERALS
WITH MR. NARENDER THAKUR,
DEPUTY ADVOCATE GENERAL).
Whether approved for reporting?
This petition coming on for orders this day, the Court passed the following:
ORDER
Bail petitioner namely, Ashish Sahota, who is behind the bars since 21.12.2021, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No. 31 of 2021, dated 21.12.2021 under Sections 376(2)(f) of IPC and ::: Downloaded on - 19/04/2022 20:08:26 :::CIS 2 Section 6 of POCSO Act, registered at police Station, Una, District Una, H.P. .
2. Pursuant to order(s) dated 6.4.2022/11.4.2022, respondent-State has filed the status report and SI/SHO Suman Sharma has also come present alongwith the record. Record perused and returned.
3. Close scrutiny of the record/status report reveals that on 21.12.2021, police received a telephonic call from the complainant namely, Raj Kumar that somebody has behaved indecently/molested his minor daughter. After having reached the spot, police recorded the statement of the victim/prosecutrix, aged 17 ½ years (name withheld to protect her identity), who alleged that at 9.45 AM, when she was brushing her teeth and her father had gone for walk, the present bail petitioner, who otherwise happens to be his nephew entered the courtyard of her house and started talking to her.
Victim/prosecutrix further alleged that firstly bail petitioner inappropriately touched her and thereafter sexually assaulted her against her wishes. In the aforesaid background, FIR, as detailed hereinabove, came to be lodged against the present bail petitioner and since then he is behind the bars. Since, challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner, he has approached this Court in the instant proceedings for grant of regular bail.
::: Downloaded on - 19/04/2022 20:08:26 :::CIS 34. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly admitting factum with regard to filing of the .
challan in the competent court of law, contends that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of offence alleged to have been committed by him, he does not deserve any leniency and as such, prayer made on his behalf for grant of bail may be rejected outrightly. Mr. Bhatnagar, further submits that there is overwhelming evidence suggestive of the fact that bail petitioner taking undue advantage of innocence of the victim/prosecutrix, sexually assaulted her against her wishes and as such, it cannot be claimed that he has been falsely implicated in the case at hand.
5. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that the victim/prosecutrix and bail petitioner had prior acquaintance and bail petitioner had been visiting the house of the victim/prosecutrix on account of his relationship with the victim/prosecutrix. Statements of the victim/prosecutrix recorded under Sections 154 and 164 Cr.P.C, clearly reveal that victim/prosecutrix of her own not only let the bail petitioner enter the courtyard of her house but also permitted him to carry her to nearby cot. Though, victim/prosecutrix has claimed that at first instance bail petitioner touched her inappropriately, yet she chose not to raise any alarm, rather permitted the bail petitioner to take her in his arms. Since, victim/prosecutrix was aware of the ::: Downloaded on - 19/04/2022 20:08:26 :::CIS 4 fact that her father is walking in adjoining street, it is not understood that what prevented her from raising alarm. She herself disclosed to .
the police that when she tried to raise alarm, she was informed by the bail petitioner that there is none to save her because her father had gone to hospital for inoculation. Interestingly, house of the bail petitioner is otherwise opposite to the house of the victim/prosecutrix, meaning thereby there was opportunity to the victim/prosecutrix to call somebody from the house of the bail petitioner, if she was being subjected to forcible sexual intercourse by the bail petitioner against her wishes. Sequences of events given in the status report, if read in entirety, certainly compels this Court to agree with Mr. N.K.Thakur, learned counsel representing the bail petitioner that bail petitioner and victim/prosecutrix had prior acquaintance and FIR qua the alleged incident only came to be lodged once father of the victim/prosecutrix saw bail petitioner and victim/prosecutrix in compromising situation.
6. Though, Mr. Sudhir Bhatnagar, learned Additional Advocate General, vehemently argued that bail petitioner taking undue advantage of the innocence of the victim/prosecutrix exploited her, but having noticed her conduct, which is apparent from her statements given to the police and thereafter to the judicial Magistrate, this Court finds it difficult to conclude that the victim/prosecutrix was incapable of understanding the consequences of her being in the company of the bail petitioner.
::: Downloaded on - 19/04/2022 20:08:26 :::CIS 57. Though, case at hand is to be decided by the learned trial Court on the basis of totality of evidence collected on record by .
the investigating agency, but having taken note of aforesaid glaring aspects of the mater, this Court sees no reason to let bail petitioner incarcerate in jail for indefinite period during the trial, especially when nothing remains to be recovered from him. Otherwise also, medical/scientific evidence adduced on record by the prosecution does not support the case of the prosecution.
8. 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 and as such, this Court sees no reason to curtail the freedom of the bail petitioner for indefinite period during the trial, especially when nothing remains to be recovered from him. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice or may again indulge in such activities, can be best met by putting bail petitioner to stringent conditions.
9. 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 is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon'ble Apex ::: Downloaded on - 19/04/2022 20:08:26 :::CIS 6 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 rpresumption 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 ::: Downloaded on - 19/04/2022 20:08:26 :::CIS 7 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 rperson, 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
10. 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 ::: Downloaded on - 19/04/2022 20:08:26 :::CIS 8 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."
11. 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.
12. 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;::: Downloaded on - 19/04/2022 20:08:26 :::CIS 9
(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.
13. Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail, subject to his furnishing personal bond in the sum of Rs. 50,000/- with one local surety in the like amount, to the satisfaction of the learned trial Court, with 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 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.
14. It is clarified that if the petitioner misuses his 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.
::: Downloaded on - 19/04/2022 20:08:26 :::CIS 1015. 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 bail petition stands disposed of accordingly.
16. 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 form the High Court website or otherwise.
18th April, 2022
r (Sandeep Sharma),
(shankar) Judge
::: Downloaded on - 19/04/2022 20:08:26 :::CIS