Himachal Pradesh High Court
Surat Singh vs State Of Himachal Pradesh on 24 September, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 1528 of 2020 .
Date of Decision: Sep 24 , 2020
Surat Singh ...Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 YES.
For the petitioner:
r Mr. Sudhir Thakur, Senior Advocate, with Mr. Karun
Negi, Advocate.
For the respondent: Mr. Ashok Sharma, Advocate General with Mr.
Nand Lal Thakur, Addl.AG, Mr. Ram Lal Thakur,
Asstt. AG & Mr. Rajat Chauhan, Law Officer.
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 during the trial, neither the victim nor the other material witnesses supported the case set up by the prosecution.
2. Based on a complaint, the police arrested the petitioner on Apr 26, 2020, in FIR No.126 of 2019, dated 22.4.2019, registered under Section 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 Paonta Sahib, District Sirmour, Himachal Pradesh, disclosing cognizable and non-bailable offences.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 25/09/2020 20:18:38 :::HCHP 2FACTS:
3. Briefly, the allegations against the petitioner are that on Apr 22, 2019 the brother of the victim informed the police that the victim was staying with him and .
on Apr 21, 2019, at about 8.00 a.m., she had left the house under the pretext of attending a village fair. However, she did not return till evening. On Apr 21, 2019, itself, at 7.00 p.m., his father informed him that he had received a phone call from Surat Singh, bail petitioner, that the victim is with him. Based on this information the police registered FIR mentioned above. After that the police recovered the victim and recorded her statement under Section 164 CrPC and also conducted her medical examination. After that the police also arrested the bail petitioner and got his medical specimen for the purpose of sending the same to the Forensic Science Laboratory. On the comparison of the genetic material obtained from the victim and the bail petitioner the DNA matched.
4. Earlier the petitioner had filed a bail petition under Section 439 CrPC before this Court which was registered as Cr.MP(M) No. 110 of 2020. Vide order dated Feb 17, 2020, this Court had rejected the said bail petition on the ground that as per the investigation the age of the victim was 12 years and the DNA profile had matched with that of the accused. After that the father of the victim got examined during trial.
PREVIOUS CRIMINAL HISTORY
5. The counsel for the petitioner states that the accused has no criminal history.
The status report also does not dispute this assertion. SUBMISSIONS:
6. Learned counsel for the bail petitioner submits that without conceding and admitting, the accused and the victim were unmarried. At the most, the allegations make out a statutory rape and not a forcible rape with a stranger.
7. On the contrary, the contention on behalf of the State is that the victim reiterated her allegations on oath in her statement under Section 164 CrPC, which is a sufficient prima facie evidence. He further submits that if this Court is inclined to ::: Downloaded on - 25/09/2020 20:18:38 :::HCHP 3 grant bail, then such a bond must be subject to very stringent conditions and accused be restrained from contacting the victim.
ANALYSIS 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. Also, 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.
::: Downloaded on - 25/09/2020 20:18:38 :::HCHP 49. 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.
10. After the rejection of the previous bail petition (CrMPM No. 110 of 2020), the father of the victim testified in the trial Court. In cross examination, he disclosed his age at that time to be 70 years and that of his eldest son as 34 years and also clarified that his younger son was 25 years of age. He further admitted that the victim was 8 - 9 years younger to his younger son. It would take the age of the victim in February 2020 between 16 to 17 years. The FIR is of April, 2019, so it would further reduce the age of the victim to be 15 to 16 years at the time of the alleged incident. Given this age the statement of the victim assumes importance. She appeared as PW-2 and testified that she had taken lift on the motorcycle of the accused and stayed with him. However, accused did not commit any rape or sexual intercourse with her. Despite evidence of DNA profile, appraisal at the present stage is only to decide further incarceration of the accused during the pendency of the trial. Without commenting on the evidentiary value of the DNA profile, the version of the victim, coupled with the other statements which stand recorded, including that of Laxmi Devi (PW-6) and other witnesses, the petitioner has made out at least a case for bail at this stage.
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.
::: Downloaded on - 25/09/2020 20:18:38 :::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 Abhishek Kumar Singh v. State of HP, Cr.MP(M) No. 1017 of 2020, the petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. Ten thousand only (INR 10,000/-), and shall either furnish two sureties of a similar amount to the satisfaction of the Chief Judicial Magistrate/Ilaqua Magistrate/Duty Magistrate/the Court exercising jurisdiction over the concerned Police Station where FIR is registered, or the aforesaid personal bond and fixed deposit(s) for Rs. Ten thousand only (INR 10,000/-), made in favour of Additional Chief Judicial Magistrate/ Judicial Magistrate, Theog, District Shimla, H.P., 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. Such a fixed deposit need not necessarily be made from the account of the petitioner. If such a fixed deposit is made manually, then the original receipt has to be deposited. If made online, then the copy attested by any Advocate has to be filed, and the depositor shall get the online liquidation disabled. It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. During the trial's pendency, it shall 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). The Court shall have a lien over the deposits until discharged by substitution, and otherwise up to the expiry of the period mentioned under S. 437-A CrPC, 1973.
15. The furnishing of the personal bonds shall be deemed acceptance of the following and all other stipulations, terms, and conditions of this bail order:
a) The petitioner to give security to the concerned Court(s) for 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 ::: Downloaded on - 25/09/2020 20:18:38 :::HCHP 6 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 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) 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].
g) The concerned Court may also inform the accused about the issuance of bailable and non-bailable warrants through the modes mentioned above.
h) In the first instance, the Court shall issue summons and may send such summons through SMS/ WhatsApp message/ E-Mail.
i) In case the petitioner fails to appear before the Court on the specified ::: Downloaded on - 25/09/2020 20:18:38 :::HCHP 7 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.
j) 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.
k) In case of non-appearance, then irrespective of the contents of the bail bonds, the petitioner undertakes to pay all the expenditure (only the principal amount without interest), that the State might incur to produce him before such Court, provided such amount exceeds the amount recoverable after forfeiture of the bail bonds, and also subject to the provisions of Sections 446 & 446-A of CrPC. The petitioner's failure to reimburse the State shall entitle the trial Court to order the transfer of money from the bank account(s) of the petitioner. However, this recovery is subject to the condition that the expenditure incurred must be spent to trace the petitioner alone and it relates to the exercise undertaken solely to arrest the petitioner in that FIR, and during that voyage, the Police had not gone for any other purpose/function what so ever.
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.
m) 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).
::: Downloaded on - 25/09/2020 20:18:38 :::HCHP 8o) 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.
16. 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.
17. 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 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.
18. 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.
::: Downloaded on - 25/09/2020 20:18:38 :::HCHP 919. 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.
20. 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.
21. 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.
22. In return of the freedom curtailed for breaking the law, 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.
Sep 24, 2020 (PK) ::: Downloaded on - 25/09/2020 20:18:38 :::HCHP