Himachal Pradesh High Court
Kuldeep @ Pankaj vs State Of Himachal Pradesh on 27 August, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.1377 of 2019
Decided on: 27.8.2019
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Kuldeep @ Pankaj ...........Petitioner
Versus
State of Himachal Pradesh ..........Respondent
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Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 .
For the Petitioner : Mr. Peeyush Verma, Advocate.
For the Respondent : Mr. Sudhir Bhatnagar and Mr. Sanjeev
Sood, Additional Advocate Generals,
with Mr. Kunal Thakur, Deputy Advocate
General.
__________________________________________________________________
Sandeep Sharma, Judge (oral):
Bail petitioner, namely Kuldeep, who is behind bars since 18.10.2017, has approached this Court in the instant proceedings filed under Section 439 of Cr.PC, praying therein for grant of regular bail in connection with FIR No. 101/17, dated 18.10.2017, under Sections 376 IPC and Sections 4 & 6 of POCSO, Act, registered at P.S. Dharampur, District Mandi, H.P.
2. Sequel to order dated 20.8.2019, ASI Krishan Kumar has come present alongwith records. He has also caused presence of the victim-prosecutrix (name withheld). Mr. Kunal Thakur, learned Deputy Advocate General, states that no fresh status report is intended to be filed 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 02:40:02 :::HCHP 2because no consequent events/circumstances have taken place after 20.8.2019, on which date status report was filed.
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3. Record/status report made available to this Court reveals that police after having received information from the Civil Hospital Sarkaghat that a minor girl has been brought for delivery of child, visited the aforesaid hospital and recorded the statement of victim-prosecutrix under Section 154 Cr.PC, wherein she stated that she is studying in BA-1 at Government College Sarkaghat and her date of birth is 9.6.200. She stated that she is known to the bail petitioner since 2016. She alleged that on 9.6.2016, the bail petitioner had come to the house of his maternal aunt and there he forcibly assaulted her against her wishes. She also alleged that after the aforesaid incident, they both kept on meeting each other and in the month of January, February, 2017, she came to know that she is pregnant, but on account of fear, could not disclose this fact to her parents. On 17.8.2017, she was taken to Civil Hospital Sarkaghat on account of pain in her stomach, whereafter police came and recorded her statement. On the basis of aforesaid statement made by the victim-
prosecutrix, case/FIR as detailed herein above, came to be lodged against the bail petitioner and since then he is behind the bars.
4. On 20.10.2019, Mr. Peeyush Verma, learned counsel for the bail petitioner while arguing on behalf of the petitioner, made this court to ::: Downloaded on - 29/09/2019 02:40:02 :::HCHP 3 peruse the statement made by the victim-prosecutrix during trial to demonstrate that no case much less under Section 376 IPC is made out .
against the bail petitioner. During proceedings of the case held on 20.8.2019, this Court carefully perused statements made by the victim-
prosecutrix under Sections 154 and 164 Cr.PC and thereafter in the trial court and directed the Investigating Officer to cause presence of victim-
prosecutrix in the Court. Pursuant to order dated 20.8.2019, victim-
prosecutrix has come present in the Court along with her in-laws. She stated on oath that she of her own volition and without there being any external pressure has come to this Court. She stated that FIR No. 101 of 2017 dated 18.10.2017, was never instituted at her behest, but by the hospital authorities, where she was admitted on account of pain in stomach. She further stated that she knew the bail petitioner since 2016 and during this period, they developed intimate relationship, as a result of which, she delivered one baby boy, who would be completing two years in the month of October, 2019. She stated that she is living happily with her in-laws in the house of the bail petitioner and since she has gained majority, they (victim-prosecutrix-bail petitioner) would be solemnizing marriage with each other immediately after his release from the jail. She stated that she shall have no objection in case the bail petitioner is enlarged on bail and case registered against him is ordered to be ::: Downloaded on - 29/09/2019 02:40:02 :::HCHP 4 quashed and set-aside. She stated that her parents as well as bail petitioner have already filed petition under Sections 482 Cr.PC, seeking .
quashment of FIR as well as consequent proceedings, which is pending adjudication.
5. Learned Deputy Advocate General having heard statement of victim-prosecutrix and perused the depositions made by her before the court below fairly stated that in view of the peculiar facts and circumstances of the case, prayer made in the instant petition for grant of bail, can be accepted but subject to the condition that bail petitioner shall always make himself available for trial as and when required by the Investigating Agency.
6. Having heard learned counsel for the parties and perused material available on record, especially statements of victim-prosecutrix recorded before the court below as well as this Court, this Court finds that victim-prosecutrix and the bail petitioner were known to each other for more than one year and during this period, they had developed intimate relationship. As per own statement of victim-prosecutrix, she was firstly sexually assaulted against her wishes on 9.6.2016, but even thereafter she kept on maintaining relationship with the bail petitioner. No doubt, on the date of alleged incident i.e. 18.10.2017, victim-prosecutrix was 17 years old, but having noticed her conduct, which clearly reflects from the ::: Downloaded on - 29/09/2019 02:40:02 :::HCHP 5 statements made by her before this court as well as lower court, this Court has reason to presume that she is/was capable of understanding of .
consequences of her being in the company of the bail petitioner, to whom she knew for a considerable time. Leaving everything aside, this Court cannot lose sight of the fact that victim-prosecutrix has delivered one child, who is going to complete two years in the month of October, 2019 and bail petitioner is his biological father. After the alleged incident, victim-prosecutrix is residing at the house of the bail petitioner with his parents as has been fairly stated by her before this Court.
r Moreover, statement of victim-prosecutrix made before the trial court nowhere suggests that she at any point of time was abducted/kidnapped by the bail petitioner, rather she of her own volition chose to join the company of the bail petitioner, who is behind bars for almost two years.
7. 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 taken note of the peculiar facts and circumstances of the case, this Court, sees no reason to let the bail petitioner incarcerate in jail for an indefinite period. In-laws of the victim-prosecutrix, who are also present in the court fairly stated before this Court that since victim-prosecutrix has attained the age of majority, marriage inter-se her and the bail petitioner ::: Downloaded on - 29/09/2019 02:40:02 :::HCHP 6 would be solemnized immediately after release of the bail petitioner from the jail and as such, this court in the interest of victim-prosecutrix and her .
minor child, deems it fit to enlarge the bail petitioner on bail. Moreover nothing has been placed on record suggestive of the fact that in the event of petitioner's being enlarged on bail, he would fl;ee from justice but even otherwise apprehension expressed by the learned Deputy Advocate General may be best met by putting the bail petitioner to the stringent conditions.
8. 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 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 - 29/09/2019 02:40:02 :::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 ::: Downloaded on - 29/09/2019 02:40:02 :::HCHP 8 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.
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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 Re-Inhuman Conditions in 1382 Prisons.
9. 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.
10. 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 ::: Downloaded on - 29/09/2019 02:40:02 :::HCHP 9 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 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. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218, The Hon'ble Apex Court has held as under:-
" This Court in Sanjay Chandra v. CBI, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that 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 found guilty. It was underlined that the object of bail is neither punitive or preventive. This Court sounded a caveat 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 a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and the grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted."::: Downloaded on - 29/09/2019 02:40:02 :::HCHP 10
12. 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 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) r danger, of course, of justice being thwarted by grant of bail.
13. 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 ::: Downloaded on - 29/09/2019 02:40:02 :::HCHP 11 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.
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14. 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.
Needless to say, victim-prosecutrix is always at liberty to approach the police or this Court seeking therein cancellation of bail of the bail petitioner in the event of her being harmed/harassed/ill-treated by the bail petitioner or other family members.
15. 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 petition stands accordingly disposed of.
Copy dasti.
27th August, 2019 (Sandeep Sharma),
manjit Judge
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