Himachal Pradesh High Court
Date Of Decision: 31.7.2024 vs State Of Himachal Pradesh on 31 July, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:6147
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Cr.MP(M) No.457 of 2024
Date of Decision: 31.7.2024
_____________________________________________________________________
Atul
.........Petitioner
Versus
State of Himachal Pradesh
.......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the Petitioner: Mr. N.K. Thakur, Senior Advocate with Mr. Divya
Raj Thakur, Advocate.
For the Respondent: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.
Verma, Additional Advocates General with Mr. Ravi
Chauhan, Deputy Advocate General, for the State.
Mr. Sarvedaman Rathore, Advocate, for the
complainant.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Bail petitioner namely Atul, who is behind the bars since 16.8.2023, has approached this court in the instant proceedings filed under Section 439 Cr.PC, for grant of regular bail in case FIR No. 146 of 2023 dated 13.8.2023, registered at Police Station Baijnath, District Kangra, Himachal Pradesh, under Sections 376 (2), 354(c) and 506 of IPC, Sections 4, 6 and 12 of POCSO Act and Sections 67 and 67 A of the IT Act.
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2. Respondent-State has filed the status report and ASI Dharam .
Chand, Police Station Baijnath, District Kangra, Himachal Pradesh, has come present with record. Record perused and returned.
3. Close scrutiny of status report/record reveals that on 13.8.2023, victim-prosecutrix (name withheld), aged 16 years, lodged a complaint alleging therein that she had prior acquaintance with the bail petitioner, with whom she used to meet frequently. She alleged that he also used to talk to her on mobile phone. In the month of February 2022, bail petitioner Atul called her telephonically and thereafter, took her in a room near Baijnath Bazar and sexually assaulted her against her wishes. She alleged that while she was being subjected to forcible sexual intercourse, bail petitioner recorded the video of the incident and thereafter, started blackmailing her on the pretext that in case she discloses the aforesaid fact to anybody, he would circulate the video. She alleged that bail petitioner sexually assaulted her against her wishes 3-4 times and every time, he threatened to make her video viral. On 10/11.8.2023, bail petitioner made her obscene video viral using her mobile phone. She alleged that firstly, bail petitioner sent her obscene video to her sister and thereafter circulated the same on whatsapp group. In the aforesaid background, FIR as detailed herein above, came to be lodged against the bail petitioner and he was ::: Downloaded on - 01/08/2024 20:30:46 :::CIS 3 2024:HHC:6147 arrested on 16.8.2024. Since then, he is behind the bars. Since .
investigation in the case is complete and nothing remains to be recovered from the bail petitioner, he has approached his court in the instant proceedings for grant of regular bail.
4. While fairly admitting factum with respect to filing of challan in the competent court of law, Mr. B.C. Verma, learned Additional Advocate General, states 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 leniency. He further states that there is overwhelming evidence adduced on record suggestive of the fact that bail petitioner not only sexually assaulted the victim-prosecutrix against her wishes on 3-4 occasions, rather also recorded her obscene video, which was subsequently circulated on Whatsapp group using her (victim) mobile phone. Mr. Verma, states that since the petitioner is accused of a heinous crime, enlarging the bail petitioner on bail may not only send a wrong message in the society, rather that may further endanger the life of victim-prosecutrix, who is yet to depose before the learned trial court.
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5. Mr. Sarvedaman Rathore, learned counsel appearing for the .
complainant also adopts the submissions made by the learned Additional Advocate General.
6. Having heard learned counsel for the parties and perused the material available on record, though this court finds that at the time of the alleged incident, victim-prosecutrix was 16 years old and had prior acquaintance with the bail petitioner, however, as per own statement of victim-prosecutrix, she had been frequently meeting and talking to the bail petitioner and in the month of February 2022, she of her own volition after having received telephonic call from the bail petitioner had joined his company. Interestingly victim-prosecutrix in her statement recorded under Section 154 CrPC, alleged that she was subjected to forcible sexual intercourse on 3-4 occasions, but no complaint, if any, ever came to be lodged at her behest either to the police or her parents, rather she kept on meeting the bail petitioner, who had allegedly recorded her obscene video.
Though incident of forcible sexual intercourse had allegedly happened one and half years back, but FIR, as detailed herein above, came to be lodged after circulation of obscene video allegedly recorded by the bail petitioner.
Though prosecution has claimed that video recorded by the bail petitioner was hosted on social media by the bail petitioner, but interestingly there is ::: Downloaded on - 01/08/2024 20:30:46 :::CIS 5 2024:HHC:6147 no explanation that how petitioner, without there being consent of the .
victim-prosecutrix, could upload the video on Whatsapp that too using her mobile phone.
7. No doubt, at the time of the alleged incident, victim-prosecutrix was minor, but having taken note of her age i.e. 16 years, this Court is not persuaded to agree with learned Additional Advocate General that she was incapable of understanding the consequences of her being in the company of the bail petitioner. Moreover, there is no plausible explanation rendered on record qua the inordinate delay in lodging of FIR. Once victim-
prosecutrix was sexually assaulted against her wishes, she was expected to lodge FIR at the first instance. However, in the case at hand, she waited till the time her obscene video was allegedly made viral by the bail petitioner.
No doubt, allegation contained in the FIR suggests that video was made viral by the bail petitioner, as has been observed herein above, but there is no explanation that how the video was made viral by the bail petitioner from the phone of the victim-prosecutrix without her knowledge and consent. If the story of prosecution is presumed to be correct, this Court is persuaded to agree with Mr. N.K. Thakur, learned Senior Advocate, representing the petitioner that till the date of lodging of FIR, victim-
::: Downloaded on - 01/08/2024 20:30:46 :::CIS6 2024:HHC:6147 prosecutrix was very much in the contact of the bail petitioner and they .
had been meeting each other.
8. Though case at hand is to be decided by the court below in totality of evidence collected on record, but having taken note of the aforesaid glaring aspects of the matter, this Court sees no reason to curtail the freedom of the petitioner for an indefinite period during trial, conclusion whereof is likely to take considerable time. By now, it is well settled that speedy trial is legal right of the accused and one cannot be made to suffer indefinitely for delay in trial and as such, this Court sees no reason to keep the bail petitioner behind the bars for indefinite period during trial. Delay in trial has been held to be in violation of the right guaranteed under Article 21 of Constitution of India. Hon'ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731, has held delay in criminal trial to be in violation of right guaranteed to an accused under Article 21 of the Constitution of India. Relevant para of the afore judgment reads as under:-
"11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616) Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), ::: Downloaded on - 01/08/2024 20:30:46 :::CIS 7 2024:HHC:6147 (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC .
569).
9. Recently, Hon'ble Apex Court in Javed Gulam Nabi Shaikh Vs. State of Maharashtra and Another, Criminal Appeal No.2787 of 2024, decided on 03.07.2024, adversely commented upon the approach of trial Court as well as High Court while considering the prayer for grant of bail. In the aforesaid judgment, Hon'ble Supreme Court having taken note of the fact that appellant in that case was in jail for last four years and Court till that date was not able to frame charges, proceeded to enlarge accused on bail in a case registered under the provisions of Unlawful Activities (Prevention) Act, 1967. In no uncertain terms, Hon'ble Apex Court in aforesaid judgment held that, however serious a crime may be, an accused has right to speedy trial, as enshrined in Article 21 of the Constitution of India. Relevant Paras of aforesaid judgment are reproduced hereinbelow, which reads as under:
"7. Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are inclined to exercise our discretion in favour of the appellant herein keeping in mind the following aspects:
(i) The appellant is in jail as an under-trial prisoner past four years;
(ii) Till this date, the trial court has not been able to even proceed to frame charge; and
(iii) As pointed out by the counsel appearing for the State as well as NIA, the prosecution intends to examine not less than eighty witnesses.::: Downloaded on - 01/08/2024 20:30:46 :::CIS
8 2024:HHC:6147
8. Having regard to the aforesaid, we wonder by what period of time, .
the trial will ultimately conclude. Howsoever serious a crime may be, an accused has a right to speedy trial as enshrined under the Constitution of India.
9. Over a period of time, the trial courts and the High Courts have forgotten a very well settled principle of law that bail is not to be withheld as a punishment.
10. In the aforesaid context, we may remind the trial courts and the High Courts of what came to be observed by this Court in Gudikanti Narasimhulu & Ors. v. Public Prosecutor, High Court reported in (1978) 1 SCC 240. We quote:
"What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal rof an appeal. Lord Russel, C.J., said [R v. Rose, (1898) 18 Cox] :
"I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial."
11. The same principle has been reiterated by this Court in Gurbaksh Singh Sibba v. State of Punjab reported in (1980) 2 SCC 565 that the object of bail is to secure the attendance of the accused at the trial, that 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 and that it is indisputable that bail is not to be withheld as a punishment.
12. Long back, in Hussainara Khatoon v. Home Secy., State of Bihar reported in (1980) 1 SCC 81, this court had declared that the right to speedy trial of offenders facing criminal charges is "implicit in the broad sweep and content of Article 21 as interpreted by this Court". Remarking that a valid procedure under Article 21 is one which contains a procedure that is "reasonable, fair and just" it was held that:
::: Downloaded on - 01/08/2024 20:30:46 :::CIS9 2024:HHC:6147 "Now obviously procedure prescribed by law for depriving a .
person of liberty cannot be "reasonable, fair or just"unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as "reasonable, fair or just" and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of along delayed trial in violation of his fundamental r right under Article 21."
13. The aforesaid observations have resonated, time and again, in several judgments, such as Kadra Pahadiya & Ors. v. State of Bihar reported in (1981) 3 SCC 671 and Abdul Rehman Antulay v. R.S. Nayak reported in (1992) 1 SCC 225. In the latter the court re-emphasized the right to speedy trial, and further held that an accused, facing prolonged trial, has no option:
"The State or complainant prosecutes him. It is, thus, the obligation of the State or the complainant, as the case maybe, to proceed with the case with reasonable promptitude. Particularly, in this country, where the large majority of accused come from poorer and weaker sections of the society, not versed in the ways of law, where they do not often get competent legal advice, the application of the said rule is wholly inadvisable. Of course, in a given case, if an accused demands speedy trial and yet he is not given one,may be a relevant factor in his favour. But we cannot disentitle an accused from complaining of infringement of his right to speedy trial on the ground that he did not ask for or insist upon a speedy trial."
14. In Mohd Muslim @ Hussain v. State (NCT of Delhi) reported in 2023INSC 311, this Court observed as under:
::: Downloaded on - 01/08/2024 20:30:46 :::CIS10 2024:HHC:6147 "21. Before parting, it would be important to reflect that laws which .
impose stringent conditions for grant of bail,may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling.
According to the Union Home Ministry's response to Parliament, the National Crime Records Bureau had recorded that as on 31stDecember 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country. Of these 122,852 were convicts; the rest 4,27,165 were undertrials.
22. The danger of unjust imprisonment, is that inmates are at risk of "prisonisation" a term described by the KeralaHigh Court in A Convict Prisoner v. State reported in 1993Cri LJ 3242, as "a radical transformation" whereby the prisoner:
"loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. Psychological problems result from loss of freedom,status, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self-perception changes."
23. There is a further danger of the prisoner turning to crime, "as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal"(also see Donald Clemmer's 'The Prison Community' published in 1940). Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore,have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials - especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily."
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15. The requirement of law as being envisaged under Section 19 of the .
National Investigation Agency Act, 2008 (hereinafter being referred to as "the 2008 Act") mandates that the trial under the Act of any offence by a Special Court shall be held on day-to-day basis on all working days and have precedence over the trial of any other case and Special Courts are to be designated for such an offence by the Central Government in consultation with the Chief Justice of the High Court as contemplated under Section 11 of the 2008.
16. A three-Judge Bench of this Court in Union of India v. K.A. Najeeb reported in (2021) 3 SCC 713] had an occasion to consider the long incarceration and at the same time the effect of Section 43-D(5) of the UAP Act and observed as under : (SCC p. 722, para 17) "17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed,both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings,the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safe-guard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial."
17. In the recent decision, Satender Kumar Antil v. Central Bureau of Investigation reported in (2022) 10 SCC 51, prolonged incarceration and inordinate delay engaged the attention of the court, which considered the correct approach towards bail, with respect to several enactments, including Section 37 NDPS Act. The court expressed the opinion that Section 436A (which requires inter alia the accused to be enlarged on bail if ::: Downloaded on - 01/08/2024 20:30:46 :::CIS 12 2024:HHC:6147 the trial is not concluded within specified periods) of the Criminal .
Procedure Code, 1973would apply:
"We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code."
18. Criminals are not born out but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption.
This humanist fundamental is often missed when dealing with delinquents,juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, maybe, the result of value erosion or parental neglect;
may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations.
19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime."
::: Downloaded on - 01/08/2024 20:30:46 :::CIS13 2024:HHC:6147 .
10. Repeatedly, it has been held that one is deemed to be innocent till the time guilt, if any, of his/her is not proved in accordance with law. In the case at hand also, guilt, if any, of the accused is yet to be proved in accordance with law, by leading cogent and convincing material on record.
Apprehension expressed by the learned Additional Advocate General that in the event of petitioner's being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions as has been fairly stated by the learned counsel for the petitioner.
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. 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 cannot be curtailed for indefinite period, ::: Downloaded on - 01/08/2024 20:30:46 :::CIS 14 2024:HHC:6147 especially when his/her guilt is yet to be proved. It has been further held by .
the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty.
13. 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.
14. 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 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.
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15. 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.
16. 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 bail petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bonds in the sum of Rs.2,00,000/- with two local sureties in the like amount to the satisfaction of concerned Chief Judicial Magistrate/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 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.::: Downloaded on - 01/08/2024 20:30:46 :::CIS
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17. 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.
18. 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.
19. The bail petitioner is permitted to produce copy of the 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 from the High Court website or otherwise.
July 31, 2024 (Sandeep Sharma),
(manjit) Judge
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