Himachal Pradesh High Court
Lalita Devi vs State Of Himachal Pradesh & Another on 16 September, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.R. No. 200 of 2016.
Reserved on 9.9.2016.
Decided on: 15.9.2016.
.
Lalita Devi ....Petitioner.
Versus
State of Himachal Pradesh & another ... Respondents.
................................................................................................
of
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1
rt Yes.
For the petitioner. : Mr. Bimal Gupta, Sr. Advocate with Mr.
Vineet Vashisht, Advocate.
For respondents. : Mr. V.S. Chauhan, Addl. Advocate General
for respondent No.1.
: Mr. Satyen Vaidya, Sr. Advocate with Mr.
Vivek Sharma, Advocate for respondent
No.2.
Ajay Mohan Goel, J.
By way of this petition filed under Section 397 read with Sections 401 and 482 of the Code of Criminal Procedure, the petitioner has challenged order dated 10.3.2016 passed by the Court of learned Sessions Judge, Shimla in Bail Application No.27- S/22 of 2016 dated 10.3.2016, vide which learned Sessions Judge has ordered the release of respondent No.2 in case FIR No. 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:14:27 :::HCHP 204/2016 dated 3.3.2016 registered under Section 376 of the Indian Penal Code at Women Police Station, B.C.S. Shimla.
2. Facts relevant for adjudication of the present case as .
are borne out from the petition filed by the petitioner are that a complaint was lodged on 3.3.2016 by the petitioner against respondent No.2 at Women Police Station, B.C.S. New Shimla to the effect that both petitioner as well as respondent No.2 were of serving in Civil Supplies Area Office at Shimla and in the month of November, 2012, respondent No.2 proposed marriage to the petitioner, pursuant to which family members of respondent No.2 rt came and met the parents of the petitioner which proposal was duly accepted by the families of petitioner as well as respondent No.2 and in pursuance thereof both families started visiting each other. According to the petitioner after formal acceptance of marriage ties by her parents as well as parents of respondent No.2, she used to move around with respondent No.2 who allured her to establish physical relations on the pretext that they were just like husband and wife. Further as per petitioner, on the basis of such allurement, she was sexually exploited by respondent No.2 on the false pretext and promises of marriage.
However, later on respondent No.2 started ignoring her and in March, 2016 she came to know that respondent No.2 was marrying some other girl. It was on these basis complaint was filed by her against respondent No.2 at Women Police Station, ::: Downloaded on - 15/04/2017 21:14:27 :::HCHP 3 New Shimla, on the basis of which, FIR No. 04/2016 was registered leading to arrest of respondent No.2.
3. An application for grant of interim bail for three days .
to solemnize marriage was moved by respondent No.2 on 4.3.2016 in the Court of learned Sessions Judge, Shimla and later on respondent No.2 filed an application for treating the said application as a regular application for grant of bail which of application was allowed by the learned Court below vide order dated 10.3.2016 which has been challenged by petitioner in the present petition.
rt
4. As per Mr. Bimal Gupta learned Senior Counsel appearing for the petitioner, the order passed by the Court of learned Sessions Judge, Shimla, granting bail to respondent No.2 was not sustainable in the eyes of law, as while allowing the said application of respondent No.2, the learned Court below failed to take into consideration the gravity and nature of the offence committed by respondent No.2. According to Mr. Gupta, the reasoning given by learned Court below to the effect that it would be proved during trial whether accused obtained consent of the prosecutrix on the pretext of marriage or the consent was not a free consent, and that chances of the commencement of the trial against respondent No.2 are not so bright and no useful purpose would be served in keeping the accused in judicial custody were not sustainable in the eyes of law for the reason ::: Downloaded on - 15/04/2017 21:14:27 :::HCHP 4 that it was well settled law that establishment of prima facie case is to be seen while granting or rejecting bail irrespective of the fact as to what would be the ultimate result of such prima .
facie case at the end of the trial. It was further contended by Mr. Gupta that bails are not granted to the accused on the ground of "brightness/darkness" of chances of commencement of trial involved in heinous crimes, rather the discretion in deciding the of bail applications are to be exercised judiciously by taking into consideration the role played by the accused in the commission of crime. It was further urged by Mr. Gupta that despite the fact rt that the investigation was not yet complete, still learned Court below passed the order granting bail in favour of respondent No.2 in a heinous crime without appreciating the fact that the release of respondent No.2 on bail would seriously affect fair investigation in the matter. Accordingly, it was argued by Mr. Gupta that the order of grant of bail passed by the learned Court below was not sustainable in the eyes of law and the same be quashed and set aside.
5. No other point was urged.
6. On the other hand Mr. Satyen Vaidya, learned Senior Counsel appearing for respondent No.2 argued that there was no merit in the present petition, as no illegality or irregularity had been committed by the learned Court below while granting bail in favour of respondent No.2. According to him, respondent No.2 ::: Downloaded on - 15/04/2017 21:14:27 :::HCHP 5 was not guilty of having committed an offence punishable under Section 376 IPC. Mr. Vaidya further argued that respondent No.2 was totally innocent and no error had been committed by the .
learned Court below while releasing respondent No.2 on bail. It was further argued by Mr. Vaidya that "Bail before Jail" was well settled principle of criminal jurisprudence. As per Mr. Vaidya submission of learned counsel for the petitioner that the order of passed by the learned Court below was bad, as the bail was granted during the course of investigation without appreciating that release of respondent No.2 would hamper investigation was rt an erroneous argument as Challan already stood filed during the pendency of the present petition and further there was no complaint on behalf of the prosecution that after release of respondent No.2 on bail, he in any manner had tried to influence the investigation. On these basis it was argued by Mr. Vaidya that there was no merit in the revision petition and the same be dismissed.
7. Mr. V.S. Chauhan, learned Additional Advocate General stated that challan in the case had been filed on 23.8.2016.
8. I have heard learned counsel for the parties and also gone through the order passed by the learned Court below dated 10.3.2016.
::: Downloaded on - 15/04/2017 21:14:27 :::HCHP 69. Learned Court below vide order dated 10.3.2016 released respondent No.2 on bail in an application filed under Section 439 of the Code of Criminal Procedure. After the grant of .
bail in favour of respondent No.2 there is no complaint with regard to conduct of respondent No.2 subsequent to his release on bail to the effect that the said respondent was hampering the investigation in the case. During the course of arguments, it was of clarified by learned Addl. Advocate General that neither any such conduct was brought into the notice of the State by the present petitioner nor any other supervening circumstance was brought rt into the notice of the State by the petitioner nor the State was called upon by the petitioner to move an appropriate application on account of the above two factors for cancellation of the bail granted by the learned Court below.
10. It is not the case of the petitioner that the learned Court below which has allowed the bail application of the petitioner was not competent to have had adjudicated on the said application or was not competent to release respondent No.2 on bail, thus it is not a case where any jurisdictional error has been committed by the learned Court below by granting bail in favour of respondent No.2. Therefore, this Court has to see as to whether the learned Court below while granting bail to respondent No.2 has acted on irrelevant material or whether there was non application of mind or failure to take note of any ::: Downloaded on - 15/04/2017 21:14:27 :::HCHP 7 statutory bar to grant bail or there was any manifest impropriety committed by the learned Court below while granting bail.
11. The Hon'ble Supreme Court in Gurcharan Singh and .
others Vs. State (Delhi Administration) (1978) 1 Supreme Court Cases 118 has held as under:-
"27. Ordinarily the High Court will not exercise its discretion to interfere with an order of bail granted by the Sessions Judge. in favour of an accused.
of
28. We have set out above the material portions of the order of the Sessions Judge from which it is seen that he did not take into proper account the grave apprehension of the prosecution that there was a likelihood of the appellants tampering with the prosecution rt witnesses. In the peculiar nature of the case revealed from the allegations and the position of the appellants in relation to the eye witnesses it was incumbent upon the Sessions Judge to give proper weight to the serious apprehension of the prosecution with regard to tampering with the eye witnesses, which was urged before him in resisting the- application for bail. The matter would have been different if there was absolutely no basis for the apprehension of the prosecution with regard to tampering of the witnesses and the allegation- rested only on a bald statement. The manner in which the above plea was disposed of by the Sessions Judge was very casual and even the language in the order is not clear enough to indicate what he meant by observing that "the witnesses........ themselves already tampered with their evidence by making contradictory statements............ ". The learned Sessions Judge was not alive to the legal position that there was no substantive evidence yet recorded against the accused until the eye witnesses were examined in the trial which was to proceed unimpeded by any vicious probability. The witnesses stated on oath u/s. 164. Cr. P.C. that they had made the earlier statements due to pressurization by some of the appellants. Where the truth lies will he determined at the trial. The High Court took note of this serious infirmity of approach of the Sessions Judge as also the unwarranted manner bordering on his prematurely commenting on the merits of the case by observing that "such deposition cannot escape a taint of unreliability in some measure or other". The only question which the Sessions Judge was required to consider at that stage was whether there was prima facie case made out, as alleged, on the statements of the witnesses and on other materials. There appeared at least nothing at that stage against the statement of ASI Gopal Das who had made no earlier contradictory statement. "The taint of unreliability" could not be attached to his statement even for the reason given. by the learned Sessions Judge. Whether his evidence will ultimately be held to be trustworthy will be an issue at the stage of trial. In considering the question of bail of an ::: Downloaded on - 15/04/2017 21:14:27 :::HCHP 8 accused in a non-bailable offence punishable with death or imprisonment for life, it is necessary for the court to consider whether the evidence discloses a prima facie case to warrant his detention in jail besides the other relevant factors referred to above. As a link in the chain of criminal conspiracy the prosecution is also relying on the .
conduct of some of the appellants in taking Sunder out of Police lockup for making what is called a false discovery and it is but fair that the Panch witness in that behalf be not allowed to be got at.
29. We may repeat the two paramount considerations, viz. likelihood of the accused fleeing from justice and his tampering with prosecution evidence relate to ensuring a fair trial of the case in a court of justice. It is essential that due and proper weight should be bestowed on these two factors apart from others. There cannot ban inexorable formula in the matter of granting bail. The facts and of circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail."
12. The Hon'ble Supreme Court in Puran Vs. Rambilas rt and another (2001) 6 Supreme Court Cases 338 has held as under:-
" 11. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh v. State (Delhi Admn.) In that case the Court observed as under:
(SCC p. 124, para 16) "If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under S. 439 (2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court."
12. It must be mentioned that in support of the above submission Mr. Lalit had also relied upon the authorities in the cases of Subhendu Mishra vs. Subrat Kumar Mishra, State (Delhi Administration) vs. Sanjay Gandhi and Bhagirathsinh vs. State of Gujarat. These need not be dealt with separately as they are of no assistance in a case of this ::: Downloaded on - 15/04/2017 21:14:27 :::HCHP 9 nature where bail has been cancelled for very cogent and correct reasons.
13. Our view is supported by the principles laid down in the case of Gurcharan vs. State (Delhi Administration) In this case it has been .
held, by this Court, that under Section 439(2), the approach should be whether the order granting bail was vitiated by any serious infirmity for which it was right and proper for the High Court, in the interest of justice, to interfere."
13. The Hon'ble Supreme Court in Neeru Yadav Vs. State of Uttar Pradesh and another, (2014) 16 Supreme Court Cases, 508 has held as under:-
of "9. In this context, a fruitful reference be made to the pronouncement in Ram Govind Upadhyay v. Sudarshan Singh, wherein this Court has observed that grant of bail though rt discretionary in nature, yet such exercise cannot be arbitrary, capricious and injudicious, for the heinous nature of the crime warrants more caution and there is greater change of rejection of bail, though, however dependant on the factual matrix of the matter.
In the said decision, reference was made to Prahlad Singh Bhati v. NCT, Delhi and the Court opined thus: (Sudarshan Singh case, SCC p. 602, para4) "(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.
(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.
(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.
(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
10. In Chaman Lal V. State of U.P., the Court has laid down certain factors, namely, the nature of accusation, severity of punishment in case of conviction and the character of supporting ::: Downloaded on - 15/04/2017 21:14:27 :::HCHP 10 evidence, reasonable apprehension of tampering with the witness or apprehension of threat to the complainant, and prima facie satisfaction of the Court in support of the charge which are to be kept in mind.
.
11. In this context, we may profitably refer to the dictum in Prasanta Kumar Sarkar v. Ashis Chatterjee, wherein it has been held that normally this Court does not interfere with the order passed by the High Court when a bail application is allowed or declined, but the High Court has a duty to exercise its discretion cautiously and strictly. Regard being had to the basic principles laid down by this Court from time to time, the Court enumerated number of considerations and some of the considerations which are relevant for the present purpose are; whether there is likelihood of the offence being repeated and whether there is danger of justice being thwarted by grant of bail.
of
12. We have referred to certain principles to be kept in mind while granting bail, as has been laid down by this Court from time to time. It is well settled in law that cancellation of bail after it is granted because the accused has misconducted himself or of some supervening rt circumstances warranting such cancellation have occurred is in a different compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail and have not been taken note of bail or it is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail. Such a case belongs to a different category and is in a separate realm. While dealing with a case of second nature, the Court does not dwell upon the violation of conditions by the accused or the supervening circumstances that have happened subsequently. It, on the contrary, delves into the justifiability and the soundness of the order passed by the Court.
16. The issue that is presented before us is whether this Court can annul the order passed by the High Court and curtail the liberty of the second respondent? We are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bedrock of constitutional right and accentuated further on human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilized society. It is a cardinal value on which the civilization rests. It cannot be allowed to be paralyzed and immobilized. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. The society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility ::: Downloaded on - 15/04/2017 21:14:27 :::HCHP 11 and accountability from the member, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, when an individual behaves in a disharmonious manner ushering in disorderly things .
which the society disapproves, the legal consequences are bound to follow. At that stage, the Court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or caprice. It has to be guided by the established parameters of law."
14. It is evident from the law laid down by the Hon'ble Supreme Court that certain factors which have to be taken into consideration while dealing with the bail applications are, nature of of accusations, severity of punishment in case of conviction, character of supporting evidence, reasonable apprehension of rt tampering with the witness or apprehension of threat to the complainant and prima facie satisfaction of the Court in support of the charge. Besides this, frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. It has been clearly laid down by the Hon'ble Supreme Court that if in a case relevant factor which should have been taken into consideration while dealing with the application of bail have not been taken note of or bail is founded on irrelevant consideration then the superior Court can set aside the order of grant of bail. As per Hon'ble Supreme Court in these kind of cases Court does not dwell upon the violation of the condition by the accused or supervening circumstances that has ::: Downloaded on - 15/04/2017 21:14:27 :::HCHP 12 happened subsequently on the contrary it delves upon the justifiability and the soundness of the order passed by the Court.
15. Coming to the facts of the present case, the learned .
Court below has taken note of the fact that the accused was in judicial custody which fact demonstrated that his custodial interrogation was not necessary. It was further observed by the learned Court below that the age of the prosecutrix was of mentioned as 30 years and that of respondent No.2 was 27 years and it was apparent from the application filed by the prosecutrix that when she came to know about the marriage of respondent rt No.2 with some other lady, then she made attempts to contact respondent No.2, but respondent No.2 denied to have nuptial knots with the prosecutrix which resulted in filing of the complaint. Taking overall perspective of the matter which was before the learned Court below, the said Court came to the conclusion that no useful purpose would be served by keeping the accused in judicial custody and accordingly it released the accused on bail on conditions contemplated in the said order.
Keeping in view the fact that the challan already stands filed and the trial is yet to commence, in my considered view this Court should not make any observation on the factual matrix of the case. As far as the order under challenge is concerned, learned counsel for the petitioner has not been able to point out that the learned Court below while granting bail has either acted on ::: Downloaded on - 15/04/2017 21:14:27 :::HCHP 13 irrelevant material or there has been non application of mind or failure to take note of statutory bar in grant of bail. No manifest impropriety has also been pointed out because it is no one's case .
that the State was not heard at the time when bail was granted in favour of respondent No.2 by the learned Court below. The basis on which learned Court below has allowed the application of the accused cannot be termed to be based on irrelevant of material nor can it be said that there was total non application of mind by the learned Court below while granting the bail.
16. Therefore, in my considered view, there is no rt manifest illegality or irregularity in the order so passed by the learned Court below which has been assailed by way of present revision and the same is accordingly dismissed.
Cr. MP No. 670 of 2016.
The application is disposed of as having been rendered infructuous in view of main petition having been adjudicated upon on merit.
(Ajay Mohan Goel) Judge 15th September, 2016.
(Guleria) ::: Downloaded on - 15/04/2017 21:14:27 :::HCHP