Kalu @ Rustam vs State Of Himachal Pradesh on 5 August, 2020

[Cites 9, Cited by 1]

Himachal Pradesh High Court

Kalu @ Rustam vs State Of Himachal Pradesh on 5 August, 2020

Bail petitioner namely Kalu @ Rustam, who is behind bars since 26.2.2020, has approached this Court in the instant proceedings filed under Section 439 of Cr.PC, for grant of regular bail in connection with FIR No. 262/19, dated 8.10.2019, under Sections 363, 366, 452, 342, 376 and Section 34 of IPC and Sections 4 &17 of the POCSO Act, registered at P.S. Sadar, District Chamba, H.P.

2. Status report filed by the Investigating Agency in terms of order dated 7.7.2020 reveals that complainant namely Sultan 1 Whether the reporters of the local papers may be allowed to see the judgment?

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Mohammad, who happens to be father of the victim-prosecutrix (name withheld) lodged a complaint at PS Sadar, District Chamba, alleging .

therein that his minor daughter victim-prosecutrix (aged 14 years), has gone missing from the house of her grandmother. Above named complainant, alleged that on the date of alleged incident, his minor son and victim-prosecutrix were sleeping with their grandmother in one room in a separate house at a distance of 100 meters. He alleged that in the intervening night of 7/8.10.2019, at about 4:00 AM, son of the complainant informed him that some unknown persons entered the house and forcibly took away his sister i.e. victim-prosecutrix. Complainant further alleged that his mother namely Hasan Bibi later on informed him that at 2:00 AM, in the night, present bail petitioner alongwith co-accused Hasan Deen (brother in law of the bail petitioner) unauthorisedly entered in the room and kidnapped the victim-prosecutrix. In the aforesaid background, FIR detailed herein above came to be lodged against the present bail petitioner as well as Co-accused Hasan Deen. Co-accused Hasan Deen stands already enlarged on bail vide order dated 3.1.2020 passed by this Court in Cr.MP(M) No. 2424 of 2019

3. Mr. Sanjeev Sood, learned Additional Advocate General, while fairly admitting factum with regard to completion of investigation and filing of challan in the competent court of law contends that though ::: Downloaded on - 05/08/2020 20:46:05 :::HCHP 3 nothing remains to 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 having been made on his behalf for grant of bail deserves outright rejection. Mr. Sood, contends that otherwise also, bail petitioner never joined the investigation rather, absconded and also made an attempt to run away from the custody of police. Mr. Sood, further contends that there is ample evidence adduced on record by the Investigating Agency to suggest that present bail petitioner with the help and aid of co-accused namely Hasan Deen sexually assaulted the victim-prosecutrix, who was minor at the time of the alleged incident against her wishes and as such, prayer for grant of bail may be rejected outrightly.

4. Having heard learned counsel for the parties and perused material available on record, this Court finds that on the date of alleged incident, victim-prosecutrix was sleeping in the room of her grandmother in the separate house, from where she was allegedly kidnapped by the present bail petitioner with the help and aid of the co-accused Hasan Deen. Statement of victim-prosecutrix recorded under Section 164 Cr.PC, if read in its entirety, clearly suggests that prior to the date of alleged incident, she was in constant touch with the bail petitioner. Victim-

prosecutrix in her statement recorded under Section 164 Cr.PC has clearly ::: Downloaded on - 05/08/2020 20:46:05 :::HCHP 4 stated that she and the bail petitioner used to like each other and wanted to solemnize marriage. In her aforesaid statement recorded .

under Section 164 Cr.PC., victim-prosecutrix specifically reiterated before the Judicial Magistrate that she would solemnize marriage with the bail petitioner after having attained majority. If the aforesaid statement made by the victim-prosecutrix is read in its entirety juxtaposing initial version putforth by the complainant while getting his statement recorded under Section 154 Cr.PC., there appears to be considerable force in the submissions made by Mr. N.K. Thakur, learned Senior counsel, appearing for the petitioner that there are material contradictions and inconsistencies in the statements of victim. Complainant in his initial statement recorded under Section 154 Cr.PC alleged that present bail petitioner alongwith co-accused Hasan Deen and other two persons unauthorisedly entered the room of his mother and kidnapped/abducted his minor daughter, but victim-prosecutrix in her statement recorded under Section 164 Cr.PC stated that on the date of the alleged incident, present bail petitioner after entering the room called her outside and took her alongwith him with the help of co-accused Hasan Deen. Leaving everything aside, perusal of statement made by victim-prosecutrix under Section 164 of Cr.PC nowhere suggests that she was subjected to forcible sexual intercourse by the present bail petitioner. No doubt, victim-

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prosecutrix at the time of the alleged commission of offence was minor, but having carefully perused her statement made under Section 164 .

Cr.PC, it can be safely inferred that she of her own volition and without there being external pressure joined the company of the petitioner with whom she wanted to solemnize marriage.

5. Though aforesaid aspects of the matter are to be considered and decided by the court below on the basis of totality of evidence collected on record by the Investigating Agency, but having noticed aforesaid aspects of the matter, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when his guilt is yet to be proved in accordance with law.

Hon'ble Apex Court as well as this Court in catena of judgments have held that one is deemed to be innocent till the time his/her guilt is proved in accordance with law. Apprehension expressed by the learned Deputy 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.

6. 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 ::: Downloaded on - 05/08/2020 20:46:05 :::HCHP 6 probable that the party will appear to take his trial. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 .

Supreme Court Cases 49 has categorically held that 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.

7. 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 has 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 ::: Downloaded on - 05/08/2020 20:46:05 :::HCHP 7 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 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 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 ::: Downloaded on - 05/08/2020 20:46:05 :::HCHP 8 problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons.

See. Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218, Prasanta Kumar Sarkar v. Ashis Chatterjee and Another .

(2010) 14 SCC 496 T

8. 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 petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 1,00,000/- with one surety 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.

(e) He shall handover passport, if any, to the Investigating Agency.

9. 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.

10. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to ::: Downloaded on - 05/08/2020 20:46:05 :::HCHP 9 the disposal of this application alone. Registry is directed to send copy of the instant order to the learned court below. The petition stands .

accordingly disposed of.

Copy dasti.

    5th August, 2020                                  (Sandeep Sharma),
          manjit                                           Judge




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Himachal Pradesh High Court