Himachal Pradesh High Court
Santosh Kumar vs State Of Himachal Pradesh on 4 December, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 2127 of 2020 .
Reserved on: 4.12.2020
Date of Decision: 7.12.2020
Santosh Kumar ...Petitioner.
Versus
State of Himachal Pradesh
...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 NO.
For the petitioner: Mr. C.D.Negi, Advocate.
For the respondent: Mr. Gaurav Sharma, Deputy Advocate
General
COURT PROCEEDINGS CONVENED THROUGH VIDEO
CONFERENCE
Anoop Chitkara, Judge
The petitioner, incarcerating upon his arrest for alluring and raping a minor girl, has come up before this Court seeking regular bail on the grounds that the he is innocent and did nothing with her.
2. Based on a complaint, the police arrested the petitioner in FIR No.87 of 2020, dated 20.9.2020, registered under Sections 363 and 376 of Indian Penal Code, 1860, (IPC), and Section 4 of the Protection of Children from Sexual Offices, Act, 2012 (POCSO Act), in Police Station, Reckong Peo, District Kinnaur, Himachal Pradesh, disclosing cognizable and non-bailable offences.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 07/12/2020 21:05:28 :::HCHP 23. Mr. C.D.Negi Ld. Counsel for the petitioner states on instructions that the petitioner has no criminal history relating to the offences .
prescribing sentence of greater than seven years of imprisonment or when on conviction, the sentence imposed was more than three years. Even the status report does not reveal any criminal history.
4. Briefly, the allegations against the petitioner are that on 20.9.2020, the mother of the victim aged 15 years visited police station and complained that the petitioner-accused has allured her daughter on 19.9.2020. She further told that on that day, the victim had gone to appear in Class-X examination at Reckong Peo. However, in the evening, she did not return home and after inquiry, she could not be traced. On 20.9.2020, she returned home on her own. On inquiry, it was revealed that the petitioner Santosh, resident of Pooh allured her under the pretext of marriage and took her to Rampur. The victim has no light in her one eye.
5. Based on this information, the police registered the FIR mentioned above. The investigation revealed that on 19.9.2020, the accused had allured the victim, a minor girl, under the pretext of marriage and taken her to Rampur and spent one night in a hotel at Rampur. After that, the police took the victim for her medical examination, which confirmed the coitus. The investigation further revealed that the accused had taken the victim to Rampur and stayed in Amandeep Guest House. The police procured CCTV footage, which corroborated the presence of the victim and the accused. The investigation further revealed that the age of the victim was less than 17 years. The status report further reveals that a few months ago, near Barang Bus Stand, the accused had met the victim, took her in his car and had committed sexual intercourse with the victim.
6. The Counsel for the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family.
7. While opposing the bail, the alternative contention on behalf of the State is that if this Court grants bail, such order must be subject to conditions, especially of not repeating the criminal activities.
::: Downloaded on - 07/12/2020 21:05:28 :::HCHP 3ANALYSIS AND REASONING:
8. In Gurbaksh Singh Sibbia and others v. State of Punjab, 1980 .
(2) SCC 565, (Para 30), a Constitutional bench of Supreme Court held that the bail decision must enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42, (Para 18) a three-member bench of Supreme Court held that the persons accused of non-bailable offences are entitled to bail, if the Court concerned concludes that the prosecution has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its satisfaction for the need to release such persons on bail, in the given fact situations. The rejection of bail does not preclude filing a subsequent application, and the Courts can release on bail, provided the circumstances then prevailing requires, and a change in the fact situation. In State of Rajasthan, Jaipur v. Balchand, AIR 1977 SC 2447, (Para 2 & 3), Supreme Court noticeably illustrated that the basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the court. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. In Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240, (Para 16), Supreme Court in Para 16, held that the delicate light of the law favours release unless countered by the negative criteria necessitating that course. In Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22, (Para 6), Supreme Court held that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately.
::: Downloaded on - 07/12/2020 21:05:28 :::HCHP 4Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
9. Pre-trial incarceration needs justification depending upon the .
offense's heinous nature, terms of the sentence prescribed in the statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, criminal history of the accused, and doing away with the victim(s) and witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State. However, while deciding bail applications, the Courts should discuss evidence relevant only for determining bail. The difference in the order of bail and final judgment is similar to a sketch and a painting. However, some sketches are in detail and paintings with a few strokes.
10. The victim is a minor girl aged 17 years. Prior to this incident of coitus, a few months before, the petitioner had established sexual relations with her in a vehicle. Despite knowing the intentions of the accused, her conduct in travelling with the accused and having a night out in a guest house, would not justify further incarceration of accused, moreover when he is already in prison for around two months.
11. An analysis of entire evidence does not justify further incarceration of the accused, nor is going to achieve any significant purpose. Without commenting on the merits of the case, the stage of the investigation and the period of incarceration already undergone would make out a case for bail.
12. The possibility of the accused influencing the course of the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative conditions and stringent conditions. In Sushila Aggarwal, (2020) 5 SCC 1, Para 92, the Constitutional bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions.
::: Downloaded on - 07/12/2020 21:05:28 :::HCHP 513. Given the above reasoning, the Court is granting bail to the petitioner, subject to strict terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter .
XXXIII of CrPC, 1973.
14. Following the decision of this Court in Manish Lal Shrivastava v. State of Himachal Pradesh, Cr.MP(M) No. 1734 of 2020, decided on 1st Dec 2020, the petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. One ten thousand (INR 10,000/-), and shall either furnish two sureties of a similar amount, both of whom, in case of default from putting in an appearance, can produce the accused before the Court to the satisfaction of the Additional Chief Judicial Magistrate, at Rampur Bushahr / Chief Judicial Magistrate, Reckong Peo, District Kinnaur, HP/ or any other Judicial Magistrate for District Kinnaur, HP or the aforesaid personal bond and fixed deposit(s) for Rs. Ten thousand only (INR 10,000/-), made in favour of "Chief Judicial Magistrate, Reckong Peo, District Kinnaur, HP", from any of the banks where the stake of the State is more than 50%, or any of the stable private banks, e.g., HDFC Bank, ICICI Bank, Kotak Mahindra Bank, etc., with the clause of automatic renewal of principal, and liberty of the interest reverting to the linked account. The arresting officer shall give a time of ten working days to enable the accused to prepare a fixed deposit.
Such a fixed deposit need not necessarily be made from the account of the petitioner. If such a fixed deposit is made on paper, then the original receipt shall be handed over to the arresting officer. If made online, then its printout, attested by any Advocate, and if possible countersigned by the accused, shall be filed, and the depositor shall get the online liquidation disabled. The petitioner or his Advocate shall inform at the earliest, either by e-mail or by post/courier, the concerned branch of the bank about the fixed deposit, whether made on paper or in any other mode, along with its number as well as FIR number, that it has been tendered as surety. After that he shall hand over such proof along with endorsement to the Investigator. It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. It shall also ::: Downloaded on - 07/12/2020 21:05:28 :::HCHP 6 be open for the petitioner to apply for substitution of fixed deposit with surety bonds and vice-versa. Subject to the proceedings under S. 446 CrPC, if any, the entire amount of fixed deposit along with interest .
credited, if any, shall be endorsed/returned to the depositor(s). Such Officer shall have a lien over the deposits until discharged by substitution, and in case any Court takes cognizance then such Court, upon which the investigator shall hand over the deposit to such Court, which shall have a lien over it up to the expiry of the period mentioned under S. 437-A CrPC, 1973, or as the case may be.
The petitioner to give security to the concerned Court(s) for
a) attendance. Once the trial begins, the petitioner shall not, in any manner, try to delay the trial. The petitioner undertakes to appear before the concerned Court, on the issuance of summons/warrants by such Court. The petitioner shall attend the trial on each date, unless exempted, and in case of appeal, also promise to appear before the higher Court, in terms of Section 437-A CrPC.
b) The attesting officer shall mention on the reverse page of personal bonds, the permanent address of the petitioner along with the phone number(s), WhatsApp number (if any), email (if any), and details of personal bank account(s) (if available).
c) The petitioner shall join investigation as and when called by the Investigating Officer or any Superior Officer. Whenever the investigation takes place within the boundaries of the Police Station or the Police Post, then the petitioner shall not be called before 8 AM and shall be let off before 5 PM. The petitioner shall not be subjected to third-degree methods, indecent language, inhuman treatment, etc.
d) The petitioner shall cooperate with the investigation at all further stages as may be required, and in the event of failure to do so, it will be open for the prosecution to seek cancellation of the bail granted by the present order.
e) The petitioner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the ::: Downloaded on - 07/12/2020 21:05:28 :::HCHP 7 witnesses, the Police officials, or any other person acquainted with the facts of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.
.
f) Once the trial begins, the petitioner shall not in any manner try to delay the trial. The petitioner undertakes to appear before the concerned Court, on the issuance of summons/warrants by such Court. The petitioner shall attend the trial on each date, unless exempted.
g) In addition to standard modes of processing service of summons, the concerned Court may serve the accused through E-
Mail (if any), and any instant messaging service such as WhatsApp, etc. (if any). [Hon'ble Supreme Court of India in Re Cognizance for Extension of Limitation, Suo Moto Writ Petition (C) No. 3/2020, I.A. No. 48461/2020- July 10, 2020].
h) The concerned Court may also inform the accused about the issuance of bailable and non-bailable warrants through the modes mentioned above.
i) In the first instance, the Court shall issue summons and may send such summons through SMS/ WhatsApp message/ E-Mail.
j) In case the petitioner fails to appear before the Court on the specified date, then the concerned Court may issue bailable warrants, and to enable the accused to know the date, the Court may, if it so desires, also inform the petitioner about such Bailable Warrants through SMS/ WhatsApp message/ E-Mail.
k) Finally, if the petitioner still fails to put in an appearance, then the concerned Court may issue Non-Bailable Warrants to procure the petitioner's presence and send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper to achieve the purpose.
l) The petitioner shall intimate about the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, within thirty days from such modification, to the Police Station of this FIR, and also to the concerned Court.
::: Downloaded on - 07/12/2020 21:05:28 :::HCHP 8m) The petitioner shall abstain from all criminal activities. If done, then while considering bail in the fresh FIR, the Court shall take into account that even earlier, the Court had cautioned the .
accused not to do so.
n) Considering the apprehension expressed by the learned counsel appearing for the respondent, the petitioner should stay far away from the place of occurrence while on bail - (Vikramsingh v. Central Bureau of Investigation, 2018 All SCR (Crl.) 458).
o) The petitioner shall neither stare, stalk, make any gestures, remarks, call, contact, message the victim, either physically, or through phone call or any other social media, nor roam around the victim's home. The petitioner shall not contact the victim.
p) The petitioner shall surrender all firearms along with ammunitions, if any, along with the arms license to the concerned authority within 30 days from today. However, subject to the provisions of the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back, in case of acquittal in this case.
q) In case of violation of any of the conditions as stipulated in this order, the State/Public Prosecutor may apply for cancellation of bail of the petitioner. Otherwise, the bail bonds shall continue to remain in force throughout the trial and also after that in terms of Section 437-A of the CrPC.
r) During the trial's pendency, if the petitioner repeats the offence or commits any offence where the sentence prescribed is seven years or more, then the State may move an appropriate application for cancellation of this bail.
15. The learned Counsel representing the accused and the Officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of this bail order to the petitioner, in vernacular and if not feasible, in Hindi or English.
16. In case the petitioner finds the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioner may file a ::: Downloaded on - 07/12/2020 21:05:28 :::HCHP 9 reasoned application before this Court, and after taking cognizance, even before the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition.
.
17. Consequently, the petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing bail bonds in the terms described above.
18. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency, from further investigation in accordance with law.
19. Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.
20. The SHO of the concerned Police Station or the Investigating Officer shall arrange to send a copy of this order, preferably a soft copy, to the complainant and the victim, at the earliest. In case the victim notices stalking or any violation of this order, she may either inform the SHO of the concerned Police Station or write to the Trial Court or even to this Court.
21. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.
The petition stands allowed in the terms mentioned above. All pending applications, if any, stand closed.
Copy Dasti.
(Anoop Chitkara), Judge 7th December 2020 (mamta) ::: Downloaded on - 07/12/2020 21:05:28 :::HCHP