Himachal Pradesh High Court
Arjun vs State Of Himachal Pradesh on 13 January, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No. 2842 of 2022
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Date of Decision: 13.01.2023
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Arjun ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
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Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1
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For the Petitioner Mr. Sanjeev K. Suri, Advocate.
For the Respondent Mr. Rajan Kahol and Mr.
r B.C.Verma, Additional Advocate
Generals.
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Sandeep Sharma, J. (Oral)
Bail petitioner, namely Arjun alias Rahul, who is behind the bars since 11.10.2022, has approached this Court in the instant proceedings filed under Section 439 Cr.P.C, for grant of regular bail in case FIR No. 229 of 2021, dated 28.8.2021 under Sections 376 DA, 328 of IPC and Section 6 of POCSO Act, registered at police Station, Nurpur, District Kangra, Himachal Pradesh.
2. Pursuant to notice issued in terms of orders dated 29.12.2022 and 10.01.2023, respondent-State has filed status 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 13/01/2023 20:39:36 :::CIS 2report and HC Kiran Kumar, has come present alongwith the record. Record perused and returned.
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3. Close scrutiny of the status report/record reveals that victim/prosecutrix (name withheld to protect her identity), in her statement recorded under Section 154 Cr.P.C. alleged that she was student of 9th class and on 26.8.2021, at 7.45 PM, while she was moving on foot towards Raja-ka-Bag, a white coloured car came on the road and in the same, two boys were sitting. She alleged that since boys were known to her, they made her sit with them. Complainant alleged that present bail petitioner made her to drink some water, whereafter she felt giddiness and unconsciousness. She alleged that occupants of the car injected some intoxicants and as such, she became unconscious and both occupants of the car sexually assaulted her against her wishes.
She alleged that thereafter both the accused went towards Jassur in their car and she came back to her house. She alleged that since on 28.08.2021, she was feeling some pain in her arm, her mother took her to hospital. In the aforesaid background, victim/prosecutrix prayed that appropriate action, in accordance with law, be taken against the persons, named hereinabove. In the aforesaid background, police registered the case against the present bail petitioner and co-accused Krishan Kumar. Since during investigation nothing was found against present bail ::: Downloaded on - 13/01/2023 20:39:36 :::CIS 3 petitioner, police while filing challan in the competent court of law kept the name of the present bail petitioner in column No.12, .
whereas other person Krishan Kumar was made main accused.
During proceedings of the case, prosecution filed an application under Section 319 Cr.P.C, praying therein to make present bail petitioner accused on the ground he had made victim/prosecutrix consume water containing some intoxicant and thereafter she was sexually assaulted against her wishes by both the accused, named in the FIR. Court below having taken note of aforesaid statement made by the victim/prosecutrix that she was made to consume water containing some intoxicant by the petitioner made him accused and since then present bail petitioner is behind the bars.
Though, main accused Krishan Kumar now stands acquitted in the main case because no evidence, worth credence, was found against him but petitioner has been made accused. Bail petitioner is behind bars since 11.10.2022. Since challan stands already filed in the competent court of law and nothing remains to be recovered from him, he has approached this Court in the instant proceedings for grant of regular bail.
4. While fairly admitting factum with regard to filing of Challan in the competent court of law, Mr. Rajan Kahol, learned Additional Advocate General, submits that though nothing remains to be recovered from the bail petitioner, but keeping in view gravity ::: Downloaded on - 13/01/2023 20:39:36 :::CIS 4 of the offence alleged to have been committed by him, he does not deserve any leniency and as such, prayer made on his behalf .
deserves outright rejection. Mr. Kahol, while making this Court to peruse evidence collected on record, submits that there is overwhelming evidence that present bail petitioner firstly made victim/prosecutrix to consume water containing intoxicant and thereafter sexually assaulted her against her wishes and as such, no legality can be said to have been committed by the Court below while arraying the present bail petitioner as an accused. While fairly admitting factum with regard to acquittal of other co-accused Krishan Kumar in the case, learned Additional Advocate General contends that acquittal of Krishan Kumar may not have any bearing in the case registered against the present bail petitioner because there is ample evidence available on record suggestive of the fact that present bail petitioner had prior acquitenance with the victim/prosecutrix and in past also, he taking undue advantage of innocence and minority of the victim/prosecutrix, sexually assaulted her against her wishes.
5. Learned counsel representing the petitioner while refuting the aforesaid submissions made by learned Additional Advocate General, contends that there is no evidence suggestive of the fact that petitioner sexually assaulted the victim/prosecutrix against her wishes, rather as per the investigation on the date of ::: Downloaded on - 13/01/2023 20:39:36 :::CIS 5 alleged incident, petitioner was not present on the spot. While making this Court to peruse status report filed by the police, .
learned counsel representing the petitioner contends that as per call details report location of the petitioner was found on some other place and as such, he has been falsely implicated. He submits that investigation clearly reveals that accused Krishan Kumar and present bail petitioner had no prior acquitenance and they are not known to each other. He states that investigation further reveals that on the date of alleged incident, Krishan Kumar and present bail petitioner were not together in car as was claimed by the prosecutrix. As per investigation, no car was used by the accused, named in the FIR, and as such, Court below rightly ignoring the claim of the victim/prosecutrix acquitted the petitioner Krishan Kumar.
6. Having heard learned counsel for the parties and perused material available on record, this Court finds that at first instance police after having investigated the matter kept the name of the accused in column No.12 of the challan because no evidence suggestive of the fact that he alongwith co-accused Krishan Kumar sexually assaulted the victim/prosecutrix against her wishes, emerged. It was only during the trial, prosecution filed an application under Section 319 Cr.P.C, praying therein to make the present bail petitioner accused on the ground that he had ::: Downloaded on - 13/01/2023 20:39:36 :::CIS 6 made victim/prosecutrix to consume water containing intoxicant but since prosecution miserably failed to prove that on the date of .
alleged incident car was used by co-accused Krishan Kumar and present bail petitioner, entire story of the prosecution has become doubtful. This Court finds that on account of aforesaid doubt, co-
accused Krishan Kumar, who was made main accused already stands acquitted in the trial. Moreover, this Court finds that mere statement of the victim/prosecutrix that she was made to consume water containing intoxicant by the present bail petitioner may not be sufficient to conclude complicity, if any, of bail petitioner, especially when it has come in the investigation that petitioner was not present on the spot at the time of alleged incident. It has also come in the investigation that on the date of alleged incident both the accused namely Krishan Kumar and present bail petitioner were not together and they were found on different locations. Most importantly, it has emerged in the investigation that neither car was used in the incident nor accused were known to each other. Since main accused Krishan Kumar already stands acquitted, there appears to be no justification to let bail petitioner incarcerate in jail for indefinite period during trial. Since statement of victim/ prosecutrix already stands recorded, no prejudice, if any, would be caused to either of the parties, if petitioner is ordered to be enlarged on bail.
::: Downloaded on - 13/01/2023 20:39:36 :::CIS 77. Though, case at hand is to be decided by learned court below on totality of evidence collected on record by the .
prosecution, but keeping in view the aforesaid aspect of the matter, this Court sees no justification to curtail the freedom of the bail petitioner during trial. 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.
8. Recently, the 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 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 ::: Downloaded on - 13/01/2023 20:39:36 :::CIS 8 would need to consider in an appropriate case. The relevant paras of the aforesaid judgment are reproduced as under:
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2. A fundamental postulate of criminal jurisprudence is the presumption 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 r 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 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 ::: Downloaded on - 13/01/2023 20:39:36 :::CIS 9 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 person, 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
9. r 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 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 ::: Downloaded on - 13/01/2023 20:39:36 :::CIS 10 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."
10. 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.
11. 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;
(iv) danger of the accused absconding or fleeing, if released on bail;::: Downloaded on - 13/01/2023 20:39:36 :::CIS 11
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
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(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
12. 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. 1,00,000/-
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.
13. 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.
14. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall ::: Downloaded on - 13/01/2023 20:39:36 :::CIS 12 remain confined to the disposal of this application alone. The bail petition stands disposed of accordingly.
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15. Learned counsel for the petitioner is permitted to produce copy of order downloaded from the High Court website before the concerned authority, who shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.
16. (Sandeep Sharma) Judge January 13, 2023 (shankar) ::: Downloaded on - 13/01/2023 20:39:36 :::CIS