Himachal Pradesh High Court
Vidya Devi vs State Of Himachal Pradesh on 12 December, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No1466 of 2017.
Decided on: 12.12.2017.
____________________________________________________________
.
Vidya Devi ........ Petitioner.
Versus
State of Himachal Pradesh. .....Respondent.
_________________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the petitioner: Mr. C.N. Singh, Advocate.
For the respondent: Mr. P.M. Negi, Additional Advocate
r General.
ASI Dula Ram, Police Station Shillai,
District Sirmour, H.P., present along with
record.
Sandeep Sharma, Judge (oral):
By way of instant bail petition filed under Section 438 of the Code of Criminal Procedure, a prayer has been made for grant of anticipatory bail in case FIR No. 70/2017, dated 01.12.2017, under Sections 342, 366,363, 376, 506 IPC and under Section 3 of POCSO Act, registered at Police Station, Shillai, District Sirmour, Himachal Pradesh.
2. Sequel to order dated 5.12.2017, whereby, the present bail petitioner was ordered to be enlarged on interim bail in the event of her arrest, ASI Dula Ram, Police Station Shillai, District Sirmour H.P., has come present in Court alongwith the record of the 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 13/12/2017 23:05:08 :::HCHP 2case. Mr. P.M. Negi, learned Additional Advocate General, has also placed on record status report prepared on the basis of the .
investigation carried out by the Investigating Agency. Record perused and returned.
3. Careful perusal of the record/status report, reveals that FIR, as detailed hereinabove, came to be registered against the bail petitioner and her son namely Pushpender, at the behest of complainant-prosecutrix, who is a 17-1/2 years aged girl. On 1st December, 2017, complainant, reported to the police that in the month of August, 2017, accused namely Pushpender, came to place Sataun with the proposal to marry her and thereafter, his mother i.e. bail petitioner also came to Sataun and said that her son will marry her on her attaining the age of majority in the month of January, 2018. Record reveals that subsequently, complainant was allured by accused Pushpender that she should join ITI, Nahan, to do computer course and accordingly, she took admission in ITI, Nahan in computer course. Since, September, 2017, complainant started living at Nahan in a room near ITI, Nahan. Accused namely Pushpender, son of present bail petitioner, started coming to the room of the complainant and repeatedly sexually assaulted her on the pretext that he will marry her whenever she completes her age of majority. On 31st October 2017, accused namely Pushpender, met complainant at Renuka Fair at Renuka Ji and from there, took ::: Downloaded on - 13/12/2017 23:05:08 :::HCHP 3 her to his village Jarwa Juneli, where, he again committed rape on her for 2-3 days. As per complainant, present bail petitioner, who .
was also present in the house at Jarwa Juneli, was in the know of the things and she actually helped other co-accused Pushpender in committing the aforesaid illegal act upon her against her wishes.
4. Mr. C.N. Singh, learned counsel, representing the bail petitioner, while referring to the records/status report, vehemently argued that no case is made out against the present bail petitioner, who is mother of accused namely Pushpender, who allegedly committed rape on complainant. Mr. Singh, further contended that as per investigation carried by the investigating agency, present bail petitioner had approached complainant as well as her parents with a proposal of marriage of his son and as such, no case can be lodged against her merely on the pretext that she helped her son namely Pushpender to do the illegal act.
Mr. Singh, also contended that investigation in this case is complete and nothing is required to be recovered from the bail petitioner, who after having obtained interim bail from this Court, has been rendering full cooperation to the investigating agency. Lastly, Mr. Singh, contended that bail petitioner being a local resident of the area, shall always remain available for investigation and trial and there is no likelihood of her fleeing from justice and as such, she deserves to be enlarged on bail.
::: Downloaded on - 13/12/2017 23:05:08 :::HCHP 45. Mr. P.M. Negi, learned Additional Advocate General, while fairly conceding that bail petitioner had joined investigation .
in terms of order dated 5.12.2017, contended that investigation conducted so far, reveals that bail petitioner also helped co-
accused Pushpender to allure the complainant, who is a minor girl and as such, the case has been rightly registered against her also.
Mr. Negi, further admitted that nothing is required to be recovered from the present bail petitioner and in case, this Court deems it proper to enlarge her on bail, she may be directed to join investigation as and when called by the Investigating Agency.
6. I have heard the learned counsel for the parties and gone through the record.
7. After having gone through the record carefully, this Court finds from the record that present bail petitioner being mother of co-accused namely Pushpender, had approached the complainant as well has her family, with a proposal of marriage and there is nothing on record from where it can be inferred that present bail petitioner instigated or helped co-accused namely Pushpender to commit offence, if any, under Section 376 IPC against complainant. Otherwise also, perusal of the record/status report, especially, statement of complainant, clearly suggests that she of her own will visited the house of present bail petitioner along with another co-accused Pushpender at village Jarwa Juneli, ::: Downloaded on - 13/12/2017 23:05:08 :::HCHP 5 where she allegedly stayed for 2 to 3 days. Allegedly, co-accused Pushpender, took the complainant to his village on 31st October, .
2017, where he allegedly, committed rape upon her, but there is nothing on record from where it can be inferred that after aforesaid alleged incident, complaint, if any, was ever lodged by the complainant either to present bail petitioner or to her parents, rather, matter came to be reported to the police for the first time on 1st December, 2017 i.e. after 30 days of alleged incident at village Jarwa Juneli. Though, the aforesaid aspect of the matter is to be considered and decided by the learned trial court on the basis of the evidence, if any, adduced on record by the prosecution, but this Court after having carefully gone through the record, sees no reason for custodial interrogation of present bail petitioner, especially when she has already joined investigation and has been rendering full cooperation, as has been fairly admitted by the learned Additional Advocate General.
8. 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 ::: Downloaded on - 13/12/2017 23:05:08 :::HCHP 6 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 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."::: Downloaded on - 13/12/2017 23:05:08 :::HCHP 7
9. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218, held as under:-
.
" This Court in Sanjay Chandra v. CBI, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that 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 ad found guilty. It was underlined that the object of bail is neither punitive or preventive. This Court sounded a caveat 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 a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and the grant or denial of such ::: Downloaded on - 13/12/2017 23:05:08 :::HCHP 8 privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under trial prisoners for an .
indefinite period would amount to violation of Article 21 of the Constitution was highlighted."
10. 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. Petitioner is a local resident of the place mentioned in the application and he shall remain available to face the trial and to undergo imprisonment, if any, imposed upon him.
11. The Apex Court in Prasanta Kumar Sarkar versus 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;
(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;::: Downloaded on - 13/12/2017 23:05:08 :::HCHP 9
(viii) reasonable apprehension of the witnesses being influenced; and
(ix) danger, of course, of justice being thwarted by grant of bail.
.
12. In view of the aforesaid discussion, 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 furnishing personal bonds in the sum of Rs.50,000/- with one local surety in the like amount to the satisfaction of learned Chief Judicial Magistrate concerned, with following conditions:
(a) She shall make herself 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) She shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(c) She 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) She shall not leave the territory of India without the prior permission of the Court.
13. It is clarified that if the petitioner misuses the liberty or violate any of the conditions imposed upon her, the investigating agency shall be free to move this Court for cancellation of the bail.
::: Downloaded on - 13/12/2017 23:05:08 :::HCHP 1014. 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.
Copy dasti.
(Sandeep Sharma) Judge 12th December, 2017 (reena) ::: Downloaded on - 13/12/2017 23:05:08 :::HCHP