Himachal Pradesh High Court
Suresh Kumar vs State Of Himachal Pradesh on 6 March, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMP(M) No. 166 of 2018
Decided on March 6, 2018
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.
Suresh Kumar ... Petitioner
Versus
State of Himachal Pradesh Respondent
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Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the petitioner : Mr. Surinder Saklani, Advocate.
For the respondent : Mr. Dinesh Thakur, Additional
Advocate General with Mr. Vikrant
Chandel, Deputy Advocate General.
ASI Prakash Chand, Police Station
Nerwa, District Shimla, HP.
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Sandeep Sharma, Judge (oral):
Bail petitioner namely Suresh Kumar, apprehending his arrest in case FIR No. 11/18 dated 24.1.2018, registered at Police Station, Nerwa, District Shimla, Himachal Pradesh under Sections 366, 342 and 376 IPC, has approached this Court by way of instant bail petition under Section 438 CrPC, seeking therein pre-arrest bail.
2. Sequel to order dated 27.2.2018, whereby bail petitioner was ordered to be enlarged on interim bail in the event of his arrest, Shri Prakash Chand, ASI has come present with the 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 07/03/2018 23:03:28 :::HCHP 2record. Learned Additional Advocate General has also placed on record status report prepared on the basis of investigation carried out by the investigating agency, perusal whereof .
suggests that on 24.2.2018, complainant-prosecutrix lodged a complaint against the bail petitioner at Police Station Nerwa, alleging therein that on 26.11.2017, bail petitioner came to her residence and on the pretext of marriage sexually assaulted her in her room. As per complainant, bail petitioner took her to Baddi in his against her wishes.
r to vehicle, where he again sexually assaulted her After ten days of alleged incident, bail petitioner allegedly left the complainant-prosecutrix alone at Baddi and thereafter he never turned up. On the basis of aforesaid complaint lodged by the complainant-prosecutrix, FIR detailed herein above came to be registered against the bail petitioner. Investigation further reveals that the complainant-
prosecutrix was unable to identify the rooms at Baddi and Chandigarh, where she was allegedly raped by the bail petitioner, however, the fact remains that the bail petitioner after having obtained interim bail from this Court, joined the investigation and thereafter took the police to the room at Baddi, where he was allegedly residing with complainant-
prosecutrix.
::: Downloaded on - 07/03/2018 23:03:28 :::HCHP 33. Mr. Surinder Saklani, learned counsel representing the bail petitioner, while referring to the record/status report strenuously argued before this Court that no case is made out .
against the bail petitioner because bare perusal of statement having been made by the prosecutrix under Section 164 CrPC itself suggests that she had joined the company of the bail petitioner of her own volition and at no point of time, she was forced/ compelled to join the company of bail petitioner. While referring to the statement of one Shri Amar Chand Thakur, i.e. owner of the house allegedly taken on rent by bail petitioner at Baddi, Mr. Surinder Saklani contended that it is quite apparent from the statement of this witness that the complainant-
prosecutrix and bail petitioner had been residing as husband and wife for more than two months in the room and at no point of time, complaint, if any, was ever lodged by the complainant-
prosecutrix with regard to forcible physical relations if any, developed by the bail petitioner with her. Mr. Surinder Saklani, learned counsel representing the bail petitioner further contended that investigation in the case is complete and nothing is required to be recovered from the bail petitioner and as such no fruitful purpose shall be served in case custodial interrogation as prayed for by the investigating agency is allowed. He further contended that the bail petitioner being ::: Downloaded on - 07/03/2018 23:03:28 :::HCHP 4 local resident of the State shall always remain available for investigation and there is no likelihood of his fleeing from justice.
.
4. On the other hand, Mr. Dinesh Thakur, learned Additional Advocate General, while opposing aforesaid prayer having been made by the learned counsel representing the bail petitioner, vehemently argued that keeping in view the gravity of the offence allegedly committed by the bail petitioner, he does not deserve to be shown any leniency, rather he needs to be dealt with severely. Learned Additional Advocate General, while refuting aforesaid contentions having been made by the learned counsel for the bail petitioner contended that bare perusal of medical evidence adduced on record by investigating agency, itself suggests that complainant-prosecutrix was repeatedly subjected to sexual assault by the bail petitioner against her wishes and as such, instant petition deserves to be dismissed.
While fairly admitting the fact that investigation in the case is complete and nothing is required to be recovered from the bail petitioner, learned Additional Advocate General contended that in the event of petitioner's being enlarged on bail, there is every likelihood of his influencing the witnesses as such, present petition may be dismissed.
::: Downloaded on - 07/03/2018 23:03:28 :::HCHP 55. I have heard the learned counsel for the parties and gone through the record carefully.
6. After having carefully perused the record/ status report, .
this Court finds considerable force in the arguments of the learned counsel representing the petitioner that complainant-
prosecutrix and bail petitioner were known to each other for quite considerable time and they had been meeting each other in the past also. It has also come in the investigation that the complainant-prosecutrix was unable to identify the rooms of house and hotel taken on rent by the bail petitioner at Baddi and Chandigarh.
7. Leaving everything aside, if the statement of Shri Amar Chand Thakur i.e. owner of house at Baddi is perused, it clearly suggests that complainant-prosecutrix had been residing with bail petitioner for more than two months in the room at Baddi and at no point of time, complainant-prosecutrix informed Amar Chand Thakur with regard to her alleged illegal detention by bail petitioner. Rather, statement of Amar Chand clearly suggests that complainant-prosecutrix and bail petitioner had good relations and they frequently used to go out together meaning thereby that complainant-prosecutrix had sufficient opportunity to raise hue and cry and lodge complaint, if any. It has also come in the statement of Shri Amar Chand that on ::: Downloaded on - 07/03/2018 23:03:28 :::HCHP 6 18.2.2018, bail petitioner gave him rent and stated that he is going to Shimla, since his mother is not well. Thereafter, on 20.2.2018, complainant-prosecutrix also went to Shimla .
intimating Shri Amar Chand Thakur that her mother-in-law at Shimla was not well. Apart from above, as per the complaint submitted by complainant-prosecutrix, incident took place on 26.11.2017, whereas FIR came to be registered on 24.2.2018 i.e. after two months and there is no explanation, if any, available on record qua delay caused in lodging FIR. Though aforesaid aspects of the matter are to be considered and decided by the learned trial Court on the basis of material collected on record by prosecution but this Court, after having carefully gone through the material, sees no reason to let the bail petitioner incarcerate in jail for indefinite period, especially when investigation is complete and nothing is required to be recovered from him, as has been fairly admitted by the learned Additional Advocate General.
8. It has been repeatedly held by the Hon'ble Apex Court that an individual is deemed to be innocent until proved guilty.
It has been further held by the Constitutional Courts that freedom of an individual is of utmost importance and it can not be curtailed merely on the basis of suspicion. In the case at hand, guilt of the accused is yet to be proved in accordance with ::: Downloaded on - 07/03/2018 23:03:28 :::HCHP 7 law by the prosecution and as such, it may not be in the interest of justice that freedom of bail petitioner is curtailed for indefinite period, especially when he has joined the .
investigation and has been fully cooperating with the investigating agency, as has been fairly admitted by the learned Additional Advocate General.
9. 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 held that freedom of an individual can not be curtailed for indefinite period, especially when his guilt has not been proved. It has further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held as under:
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 ::: Downloaded on - 07/03/2018 23:03:28 :::HCHP 8 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 ::: Downloaded on - 07/03/2018 23:03:28 :::HCHP 9 enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons.
10. By now it is well settled that gravity alone cannot be .
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. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; has been 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 ::: Downloaded on - 07/03/2018 23:03:28 :::HCHP 10 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."
11. Law with regard to grant of bail is now well settled. The Apex Court in Siddharam Satlingappa Mhetre versus State of Maharashtra and others, (2011) 1 SCC 694, while relying upon its decision rendered by its Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565, laid down the following parameters for grant of bail:-
"111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour.::: Downloaded on - 07/03/2018 23:03:28 :::HCHP 11
112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation .
and the exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood rto repeat similar or the other offences.
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention ::: Downloaded on - 07/03/2018 23:03:28 :::HCHP 12 of harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of the witness or .
apprehension of threat to the complainant;
(x) 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." (Emphasis supplied)
12. 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 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.
13. 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;::: Downloaded on - 07/03/2018 23:03:28 :::HCHP 13
(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;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
14. In view of above, interim order dated 27.2.2018, is made absolute, subject to the petitioner's furnishing fresh bail bonds in the sum of Rs.1,00,000/- (Rs. One Lakh) with a local surety in the like amount, to the satisfaction of the Investigating Officer concerned, besides 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 surrender passport, if any, held by him.
15. 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.
::: Downloaded on - 07/03/2018 23:03:28 :::HCHP 1416. 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 petition alone.
.
The petition stands accordingly disposed of.
Copy dasti.
(Sandeep Sharma)
Judge
March 6, 2018
(vikrant)
r to
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