Himachal Pradesh High Court
Sajid Ali vs State Of Himachal Pradesh on 8 February, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No. 179 of 2019
Decided on February 8, 2019
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Sajid Ali ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
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Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
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For the petitioner Mr. Rajesh Kumar Parmar,
Advocate.
For the respondent Mr. Ashwani Sharma and Mr.
Nand Lal Thakur, Additional
r Advocates General.
SI Ramesh Kumar, I/O, Police
Station, Baddi, District Solan,
Himachal Pradesh.
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Sandeep Sharma, J. (Oral)
Bail petitioner namely Sajid Ali, who is behind the bars since 1.3.2015, has approached this court in the instant proceedings filed under S.439 CrPC, for grant of regular bail in FIR No. 36 of 2015, dated 25.2.2015, under Ss.363, 366 and 376 IPC and S.4 of Protection of Children from Sexual Offences Act, registered at Police Station, Baddi, District Solan, Himachal Pradesh.
2. Sequel to order dated 31.1.2019, SI Ramesh Kumar, has come present with the record. Mr. Ashwani 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 11/02/2019 22:00:35 :::HCHP 2Sharma, learned Additional Advocate General has also placed on record status report, prepared on the basis of investigation .
carried out by the investigating agency. Record perused and returned.
3. Close scrutiny of the record/status report reveals on 25.2.2015, complainant, Rajiv Kumar, lodged a complaint at Police Station, Baddi that his niece, who was 16 years of age, had gone to school on 11.2.2015, but till date, she has not come back. Complainant stated in the complaint that he has a suspicion that the person namely Sajid Ali (bail petitioner) has allured his niece on the pretext of marriage and they have run away. On the basis of aforesaid complaint, police started the investigation and finally on 1.3.2015, recovered niece of the complainant from Raja Vihar, Delhi.
Niece of the complainant was found to be living with the bail petitioner at Delhi in a rented accommodation. Immediately the police arrested the bail petitioner and brought him to Baddi. Police got the medical examination of prosecutrix conducted at CH Baddi and thereafter lodged FIR against the bail petitioner under Ss. 363, 366A and 376 IPC and S.4 of the Protection of Children from Sexual Offences Act on 7.3.2015 and since then, bail petitioner is behind the bars. Police also got statement of victim recorded under S.164 CrPC, before ::: Downloaded on - 11/02/2019 22:00:35 :::HCHP 3 Magistrate, wherein she completely denied the factum of her being kidnapped by the bail petitioner. She stated before the .
Magistrate that she, of her own volition, had gone to Delhi to join the company of the bail petitioner. She, in her statement before the Magistrate stated that since she used to like the bail petitioner, she wanted to marry him but her parents were opposed to their marriage, and as such, she of her own volition left her house to join the company of the bail petitioner. She, in her statement, specifically stated that no illegal act was committed upon her by the bail petitioner.
4. Mr. Rajesh Kumar Parmar, learned counsel representing the bail petitioner, while referring to the record /status report, especially statement of the victim/prosecutrix recorded under S.164 CrPC, strenuously argued that no case, much less case under S.376 IPC and S.4 of the Protection of Children from Sexual Offences Act is made out against the bail petitioner, as such, he deserves to be enlarged on bail. Learned counsel for the bail petitioner further contended that the statement having been made by the prosecutrix clearly suggests that she was in love with the bail petitioner and wanted to marry him. Mr. Parmar, further contended that there is no evidence available on record suggestive of the fact that the bail petitioner taking undue advantage of the minor ::: Downloaded on - 11/02/2019 22:00:35 :::HCHP 4 age of the victim, allured her and thereafter eloped with her, rather, evidence clearly suggests that the prosecutrix despite .
being cautioned by the bail petitioner, of her own volition had gone to Delhi to join the company of the bail petitioner. While referring to the medical evidence adduced on record Mr. Parmar, contended that there is nothing to demonstrate that the victim/prosecutrix was subjected to forcible sexual intercourse during her stay with the bail petitioner. Lastly Mr. Parmar, contended that the bail petitioner, who is a young boy of 27 years of age, has already suffered for around four years and such, he being first offender, deserves to be enlarged on bail.
5. Mr. Ashwani Sharma, learned Additional Advocate General, while fairly admitting the fact that the bail petitioner is behind the bars for the last around four years, contended that keeping in view the gravity of offence alleged to have been committed by him, bail petitioner does not deserve to be shown any leniency, as such, present bail petition deserves to be dismissed. While referring to the statement made by the prosecutrix, under S.164 CrPC, Mr. Sharma, learned Additional Advocate General, contended that the statement, if any, made by the prosecutrix is of no consequence, because, at the time of alleged incident and recording of the statement, ::: Downloaded on - 11/02/2019 22:00:35 :::HCHP 5 prosecutrix was a minor. While refuting the contention of the learned counsel representing the bail petitioner, that nothing .
has emerged against bail petitioner in the medical evidence, Mr. Sharma, contended that in the case at hand, medical examination came to be conducted after a considerable time, as such, that can not be made basis to conclude that bail petitioner has not committed any offence upon the victim/prosecutrix punishable under S.376 IPC.
6. r Having heard the learned counsel for the parties and perused material available on record, this court, though finds that victim was 16 years of age at the time of alleged incident, but bare perusal of her statement made under S.164 CrPC, clearly suggests that she, of her own volition, joined the company of the bail petitioner. If the statement of victim made under S.164 CrPC, is read in its entirety, it clearly compels this court to agree with the contention of Mr. Rajesh Kumar Parmar, learned counsel representing the bail petitioner, that the victim was capable of understanding the consequences of her being in the company of the bail petitioner.
7. Leaving everything aside, it has specifically come in the statement of victim-prosecutrix that the bail petitioner had advised her not to join his company since she was a minor and she has stated that the bail petitioner had told her to wait ::: Downloaded on - 11/02/2019 22:00:35 :::HCHP 6 till her attaining the age of majority, but, she of her own, insisted to join the company of the bail petitioner, as such, .
after having seen the conduct of the victim, this court sees no reason to keep the bail petitioner behind the bars, for an indefinite period, especially when he has already suffered for around four years. No doubt, consent, if any, of a minor, while considering cases registered under the provisions of Protection of Children from Sexual Offences Act, may not be very relevant, but, definitely conduct of the victim/prosecutrix is required to be taken into consideration by the court, while considering prayer for grant of bail.
8. In the case at hand, this court having carefully perused the statement of the victim recorded before the Magistrate, under S.164 CrPC, has no hesitation to conclude that she was not allured or compelled by the bail petitioner to join his company, rather, she being in love with the bail petitioner, was herself keen to join the company of the bail petitioner. Moreover, it is not understood that when the victim had not returned from school on 11.2.2015, why the complainant failed to lodge report on the same day because, in the case at hand, first complaint/FIR came to be lodged on 25.2.2015 i.e. approximately after fourteen days and there is ::: Downloaded on - 11/02/2019 22:00:35 :::HCHP 7 no plausible explanation rendered on record by the complainant for delay in filing FIR.
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9. Albeit, aforesaid aspects of the matter would be considered and decided by the learned trial Court, in the totality of evidence placed before it by the investigating agency, but, this court sees no reason to curtail the freedom of the bail petitioner, especially for the reasons stated herein above.
10. Learned Additional Advocate General has raised an apprehension that in case bail petitioner is ordered to be enlarged on bail at this stage, he may flee from justice.
Aforesaid apprehension raised by the learned Additional Advocate General can be met with by putting the bail petitioner to stringent conditions and as such, this court sees no impediment in accepting the prayer having been made by the bail petitioner, for grant of regular bail.
11. 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/her guilt is yet to be 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:
::: Downloaded on - 11/02/2019 22:00:35 :::HCHP 8"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 ::: Downloaded on - 11/02/2019 22:00:35 :::HCHP 9 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 r 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 Re-Inhuman Conditions in 1382 Prisons."
12. By now it is well settled that gravity alone cannot be a 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 ::: Downloaded on - 11/02/2019 22:00:35 :::HCHP 10 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 rprinciple 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 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 ::: Downloaded on - 11/02/2019 22:00:35 :::HCHP 11 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."
13. 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.
14. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held as under:
"This Court in Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40, 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 ::: Downloaded on - 11/02/2019 22:00:35 :::HCHP 12 of bail is neither punitive nor 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 a 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 and caution by balancing the valuable right of liberty of r 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 that 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."
15. 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;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;::: Downloaded on - 11/02/2019 22:00:35 :::HCHP 13
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
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(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.
16. In view of above, bail petitioner has carved out a case for himself and as such, present petition is allowed. Bail petitioner is ordered to be enlarged on bail, subject to his furnishing bail bonds in the sum of Rs.50,000/- (Rs. Fifty Thousand) with one local surety in the like amount, to the satisfaction of the Chief Judicial Magistrate concerned/trial court, 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;
(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.
17. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the ::: Downloaded on - 11/02/2019 22:00:35 :::HCHP 14 investigating agency shall be free to move this Court for cancellation of the bail.
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18. 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) Vacation Judge February 8, 2019 (vikrant) ::: Downloaded on - 11/02/2019 22:00:35 :::HCHP