Himachal Pradesh High Court
__________________________________________________________ vs State Of Himachal Pradesh on 10 June, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr. MP(M) No. 497 of 2019
.
Date of Decision: 10th June, 2019
__________________________________________________________
Rohan Mehta ........ Petitioner
Versus
State of Himachal Pradesh .....Respondent.
__________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the petitioner: Mr. Vinay Kuthiala, Sr. Advocate
with Mr. Diwan Singh Negi,
Advocate.
For the respondent: Mr. Sanjeev Sood, Additional
Advocate General with Mr. Sunny
Dhatwalia, Assistant Advocate
General.
__________________________________________________________
Sandeep Sharma, Judge (oral):
Bail petitioner, namely, Rohan Mehta, has approached this Court in the instant proceedings filed under Section 438 of the Code of Criminal Procedure, praying therein for grant of anticipatory bail in case FIR No.39 of 2019, dated 8.3.2019, under Sections 376, 417 of IPC, registered at police Station, Dhali, District Shimla, Himachal Pradesh.
1Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 11/06/2019 21:57:03 :::HCHP 22. Sequel to order dated 15.5.2019, ASI Joginder Singh has come present alongwith the record. Mr. Sanjeev .
Sood, learned Additional Advocate General, has also placed on record fresh status report, prepared on the basis of the investigation carried out by the Investigating Agency. Record perused and returned.
3. Close scrutiny of the record/status report, reveals that at first instance complainant (hereinafter referred to as the prosecutrix) lodged Zero FIR No.55 at police Station, Yamuna Nagar (Haryana), which subsequently came to be transferred to police Station, Kandaghat, District Solan, H.P. On the basis of aforesaid Zero FIR, police Station, Kandaghat lodged fresh FIR No.81 of 2018, dated 26.9.2018 under Sections 376 IPC, which further came to be transferred to police Station, Dhali, District Shimla, H.P. Police station, Dhali (Shimla) lodged FIR No.39 of 2019, dated 8.3.2019 under Sections 376 and 417 of IPC against the petitioner/accused.
Prosecutrix alleged that she met petitioner/accused in a shop at Yamuna Nagar and thereafter they both developed intimacy and started talking to each other. After sometime, prosecutrix ::: Downloaded on - 11/06/2019 21:57:03 :::HCHP 3 went abroad, but subsequently she came back to this country on the insistence of bail petitioner, who insisted her for .
marriage. Allegedly, on 17th May, 2018 both petitioner and prosecutrix got engaged with each other in a ceremony held in the presence of their family members at Buffet Hut Hotel Yamuna Nagar(Haryana). On 18th May, 2018, entire family of the petitioner/accused alongwith prosecutrix came to Chail, District Solan (HP), where bail petitioner allegedly on the pretext of marriage compelled the prosecutrix to have intercourse with him. Though, marriage was fixed to be solemnized on 13th December, 2018 and all the arrangements were made, but suddenly on 18th/19th September, 2018 bail petitioner refused to solemnize marriage with the prosecutrix and she was compelled to lodge complaint at Women police Station, Yamuna Nagar (Haryana) on 20th September, 2018.
On the basis of aforesaid statement having been made by the prosecutrix, Zero FIR , referred hereinabove, came to be lodged against the bail petitioner at Yamuna Nagar. Since alleged offence, as has been taken note hereinabove, allegedly came to be committed at Chail, District Solan, Himachal Pradesh, Zero ::: Downloaded on - 11/06/2019 21:57:03 :::HCHP 4 FIR lodged at Yamuna Nagar came to be transferred to police Station, Kandaghat, who subsequently referred the matter to .
police Station, Dhali under whose jurisdiction alleged place of occurrence falls.
4. Mr. Vinay Kuthiala, learned counsel representing the bail petitioner while referring to the record/status report, strenuously argued that bare perusal of the report lodged by the prosecutrix itself reveals that she of her own volition joined the company of bail petitioner, who subsequently with a view to help her offered to marry her despite her stigmatic past. Mr. Kuthiala, further contended that there is nothing on the record to demonstrate that prosecutrix was duped by the bail petitioner, rather her own statement clearly suggests that petitioner was ready and willing to solemnize marriage with the prosecutrix, who was subsequently found to be already married. Lastly, Mr. Kuthiala, contended that since investigation in the case is complete and nothing is required to be recovered from the bail petitioner, no fruitful purpose would be served in case bail petitioner is sent for custodial interrogation.
::: Downloaded on - 11/06/2019 21:57:03 :::HCHP 55. Mr. Sanjeev Sood, learned Additional Advocate General, while opposing the instant bail petition filed on .
behalf of the bail petitioner though admitted the factum with regard to completion of the investigation, but contended that keeping in view the gravity of offence alleged to have been committed by the bail petitioner, he does not deserve any leniency, rather needs to be dealt with severely. While inviting attention of this Court to the record/status report, Mr. Sood, made an attempt to persuade this Court to agree with his contention that bail petitioner taking undue advantage of the innocence of the prosecutrix sexually assaulted her against her wishes on the pretext of marriage. Mr. Sood, further contended that in the event of petitioner's being enlarged on bail, there is every likelihood of his fleeing from justice and as such, present bail petition may be dismissed.
6. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that alleged incident had taken place on 17 th/18th May, 2018, whereas FIR came to be lodged on 20th September, 2018 i.e. approximately after 3 ½ months. Though, in the case ::: Downloaded on - 11/06/2019 21:57:03 :::HCHP 6 at hand prosecutrix has stated that on 19 th September, 2018 bail petitioner refused to solemnize marriage, but if her .
statement is read in its entirely, it clearly suggests that immediately after engagement, bail petitioner had expressed his unwillingness to solemnize marriage with her and as such, prosecutrix ought to have reported the matter to the police at first instance.
7. Leaving everything aside, there is sufficient material available on record indicative of the fact that bail petitioner and prosecutrix were not only known to each other for considerable time, but they had also developed proximity with each other and as such, it cannot be believed that bail petitioner taking undue advantage of innocence of the prosecutrix compelled her to have intercourse with him on the pretext of marriage. As per own statement of the prosecutrix, all the arrangements for marriage were made, meaning thereby, both petitioner and prosecutrix were willing to marriage each other and as such, it cannot be said that bail petitioner duped the prosecutrix, rather material available on record indicate something else. Material placed on record by ::: Downloaded on - 11/06/2019 21:57:03 :::HCHP 7 the bail petitioner, which is not refuted by the respondent State, compel this Court to agree with the contention of .
learned counsel representing the bail petitioner that since prosecutrix was already married, bail petitioner, who admittedly spent his own money for calling the prosecutrix from the aboard had no option but to refuse for marriage.
Material available on record clearly reveal that prosecutrix in one of the proceeding before the High Court of Punjab and Haryana stated that she of her own joined the company of the person, namely Ashish Tyagi, who subsequently solemnized marriage with her, meaning thereby prosecutrix was already married at the time of her engagement with the bail petitioner.
8. Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court on the basis of totality of evidence to be collected on record by the Investigating Agency during the trial, but having carefully perused the record, which has been otherwise taken note hereinabove, this Court sees no justification to allow the bail petitioner to incarcerate in jail for an indefinite period, ::: Downloaded on - 11/06/2019 21:57:03 :::HCHP 8 especially when investigation is complete and nothing is required to be recovered from him.
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9. Hon'ble Apex Court as well as this Court in catena of cases have held that freedom of an individual cannot be curtailed for indefinite period during the pendency of the trial because one is deemed to be innocent until his/her guilt, is not proved in accordance with law. In the case at hand, guilt, if any, of the bail petitioner is yet to be proved in accordance with law by leading cogent and convincing evidence. Apprehension expressed by learned Additional Advocate General that in the event of petitioner's being enlarged on bail, he may flee from justice, can be best met by putting bail petitioner to stringent conditions, as has been fairly stated by learned counsel representing the bail petitioner.
10. 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 ::: Downloaded on - 11/06/2019 21:57:03 :::HCHP 9 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 would need to consider in an appropriate case. The relevant paras of the aforesaid judgment are reproduced 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 ::: Downloaded on - 11/06/2019 21:57:03 :::HCHP 10 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 firsttime 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 ::: Downloaded on - 11/06/2019 21:57:03 :::HCHP 11 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 ReInhuman Conditions in 1382 Prisons
11. 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 ::: Downloaded on - 11/06/2019 21:57:03 :::HCHP 12 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."
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, 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.
::: Downloaded on - 11/06/2019 21:57:03 :::HCHP 1313. 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 r 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. Consequently, in view of the above, order dated 1.4.2019, passed by this Court is made absolute, besides the 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;::: Downloaded on - 11/06/2019 21:57:03 :::HCHP 14
b. He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
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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.
e. He shall surrender his passport.
15. 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.
16. 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 bail petition stands disposed of accordingly.
Copy dasti.
(Sandeep Sharma), Judge 10th June, 2019 (shankar) ::: Downloaded on - 11/06/2019 21:57:03 :::HCHP