Himachal Pradesh High Court
Ram Pal vs State Of Himachal Pradesh on 1 October, 2020
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No.1639 of 2020 Date of Decision:1.10.2020 .
__________________________________________________________ Ram Pal ........ Petitioner Versus State of Himachal Pradesh .....Respondent.
__________________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioner: Mr. N.K.Thakur, Senior Advocate with Mr. Divya Raj Singh, Advocate.
For the Respondent: Mr. Kunal Thakur, Deputy Advocate General. __________________________________________________________ Sandeep Sharma, Judge(oral):
Bail petitioner namely, Ram Lal, who is behind the bars since 24th July, 2020, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No.267 of 2020, dated 24.07.2020, under Sections 420, 376, 508, 506 and 120-B of IPC registered at police Station, Una, District Una, Himachal Pradesh.
2. Respondent-State has filed status report. ASI Rajinder Singh has also come present alongwith the record. Record perused and returned.
3. Perusal of status report/record reveals that on 24.7.2020 victim/prosecutrix, who is 29 years old (name withheld to protect her identity), got her statement recorded under Section 164 Cr.P.C., alleging 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 03/10/2020 20:18:06 :::HCHP 2therein that in the year, 2017 her marriage was solemnized with Sh.
Ajay Bhangal as per Hindu rites and customs. She alleged that her husband is serving in Army and her parent's house is at Majara. She .
alleged that since there was miscarriage on one occasion after the marriage, lady namely Kanta Devi wife of Sh. Subhash Chand advised her to visit one Maddi Baba for blessings. She alleged that as per aforesaid advised given by Kanta Devi, she alongwith her husband went to Maddi Baba at Nangal where he raised demand of four fans. She alleged that again in March, 2018 aforesaid Maddi Baba demanded Rs.
15,000/- for Bhandara , but she paid Rs. 5100/- and stopped visiting the place of Maddi Baba having found Baba to be greedy person. She alleged that she blocked the number of Maddi Baba, but in October, 2019, Subhash Chand husband of Kanta Devi told her that Maddi Baba has told him that in case his demands is not met by her he will eliminate her son and husband. She alleged that she ignored the aforesaid message of Subhash Chand, who again in March, 2020 reminded her of message given by Maddi Baba, but she told him that she herself would go to Maddi Baba. Allegedly, before lock down complainant went to Maddi Baba and told him that she cannot give more than Rs. 21000/- , but he said that he himself can take money from her. She alleged that after one week, she received phone from Maddi Baba, who threatened her that in case she did not succumb to her demand, he would cause harm to her newly born son and husband. She alleged that thereafter she asked ::: Downloaded on - 03/10/2020 20:18:06 :::HCHP 3 Maddi Baba that how he wants to finish the things and as such, he advised her to sell her gold ornaments. She alleged that on the askance of Maddi Baba, she gave a phone call on the phone bearing .
No.6283918012 belonging to the petitioner herein, who called her outside the jewellary shop i.e. Sukhan Nandan Sons. She alleged that she gave 16-17 Tolla of gold to the petitioner, who in lieu thereof gave 2,50,000/- rupees. She stated that after having received aforesaid money, she deposited the same in the account No.38176538026, IFSC Code SBIN0011960 in the name of Jaspreet Singh, R/o Amritsar Punjab as was asked by Maddi Baba. She alleged that in April, 2020 she again sold 26 tolla gold (260 grams) to the present bail petitioner, who in lieu thereof gave her 3,50,000 rupees, which she transferred in the same bank account as was done on earlier occasion. She alleged that thereafter again in June, 2020, 16-17 tolla(170 grams) of jewelry, which she had received from her in laws, was given to the petitioner near the shop at Mehatpur, in lieu of which an amount of Rs.2, 50,000/- was paid and deposited by her in the bank account of Jaspreet Singh. As per complainant, again in the first of week of July, 2020 she sold 16-17 tolla (170) grams gold to the petitioner and received Rs.70,0000+ 80,000/-.
She alleged that since Maddi Baba threatened her on phone as well as through whatsapp call, she was compelled to sell gold ornaments to the petitioner and as such, appropriate action in accordance with law be taken against Maddi Baba and the present petitioner. In the aforesaid ::: Downloaded on - 03/10/2020 20:18:06 :::HCHP 4 background, FIR under Sections 420, 506, 508 of IPC came to be lodged against the present bail petitioner as well as Maddi Baba. Present bail petitioner is behind the bars since 24th July, 2020, whereas Maddi Baba .
stands enlarged on bail by the learned Court below.
4. Status report reveals that after lodging of aforesaid FIR, statement of victim/prosecutrix was recorded under Section 164 Cr.P.C in the court of learned Judicial Magistrate 1st Class, Una on 25.7.2020, wherein she reiterated the content of her initial statement recorded under Section 154 Cr.P.C., save and except one new addition that in March, 2020 when she had gone to the house of the petitioner to sell her ornaments he was alone and had attempted to sexually assaulted her against her wishes on the pretext that her act of selling gold is being recorded in CCTV camera. It also emerge from the record that victim/prosecutrix one day after getting her statement recorded under Section 164 Cr.P.C, got her fresh statement recorded under Section 161 Cr.P.C to the police on 26.7.2020 alleging therein that in March, 2020 when she had gone to the house of Ram Pal i.e. bail petitioner, she was sexually assaulted by him against her wishes. Though, at first instance she refused to undergo medical test but after two days after lodging of FIR, she consented for her medical examination. On account of subsequent statement of prosecutrix recorded on 26.7.2020 under Section 161 Cr.P.C, wherein she leveled allegation of rape against the present bail petitioner, Section 376 of IPC came to be incorporated in ::: Downloaded on - 03/10/2020 20:18:06 :::HCHP 5 FIR lodged against the present bail petitioner as well as Maddi Baba on 24th July, 2020.
5. Mr. Kunal Thakur, learned Deputy Advocate General .
while fairly admitting the factum with regard to completion of the investigation, contends that though at this stage nothing remains to be recovered from the bail petitioner, but since report of RFSL is still awaited, prayer made on behalf of the petitioner may not be considered at this stage. Learned Deputy Advocate General further contends that otherwise also, keeping in view the gravity of the offence alleged to have been committed by the bail petitioner, he does not deserve any leniency and as such, bail petition filed by the bail petitioner deserves to be rejected. While referring to the statement of the present bail petitioner recorded under Section 27 of the Indian Evidence Act, learned Deputy Advocate General contends that it stands duly established on record that bail petitioner taking undue advantage of innocence of victim/ prosecutrix not only compelled her to sell her gold ornaments in connivance with co-accused Maddi Baba, but also sexually assaulted her against her wishes and as such, it would not be in the interest of justice to enlarge him on bail at this stage. Lastly, learned Deputy Advocate General contends that taking note of antecedents of bail petitioner it would not be safe and in the interest of justice to enlarge him on bail because in the event of his being enlarged on bail, there is every ::: Downloaded on - 03/10/2020 20:18:06 :::HCHP 6 possibility of his fleeing from justice and tamper with the prosecution evidence.
6. Having heard learned counsel representing the parties and .
perused the material available on record, especially statement of prosecutrix recorded under Sections 154 and 164 Cr.P.C on 25.7.2020, this Court finds that neither in the initial statement recorded under Section 154 Cr.P.C nor in the statement recorded under Section 164 Cr.P.C victim/prosecutrix, who is major, alleged that she was subjected to forcible sexual intercourse by the bail petitioner in the month of March, 2020. In the initial version recorded under Section 154 Cr.P.C there is no mention that in the month of March, 2020 on the askance of bail petitioner she had gone to her house, but otherwise also in her subsequent statement recorded under Section 164 Cr.P.C, she has stated that in the month of March, 2020 while she had gone to the house of the bail petitioner, he had attempted to sexually assaulted her on the pretext that her act of selling gold is being recorded in CCTV Camera, but she ignoring the aforesaid threat of the petitioner had run away from the spot. It is only after two days of lodging of FIR victim/prosecutrix got her statement recorded under Section 161 Cr.P.C wherein she took U turn and gave clean cheat to co-accused Maddi Baba by stating that at no point of time Maddi Baba extended threats to her, rather she on the askance of present bail petitioner, who had also sexually assaulted her in March, 2020 sold her gold ornaments and thereafter transferred the ::: Downloaded on - 03/10/2020 20:18:06 :::HCHP 7 entire money to the person namely, Gurpreet Singh, R/o new Zealand i.e. her face book friend. She in her subsequent statement given to the police under Section 161 Cr.PC. stated that since Gurpreet Singh had .
some objectionable videos of her and he had threatened to upload the same on social media, she transferred the amount in the account of Jaspreet Singh.
7. It is quite apparent from the statements, as have taken note hereinabove, of the victim/prosecutrix that she received some money from the bail petitioner in lieu of gold, if any, sold by her. Since, it stands duly admitted by the victim/prosecutrix that she had received sum of Rs. 2,50,000/-, Rs.3, 50,000/-, Rs. 2, 50,000/- and Rs. 1, 50,000/-
against the gold sold by her to the present bail petitioner, it cannot be said that petitioner either committed theft or purchased the stolen property. If the subsequent statement of the prosecutrix recorded under Section 164 Cr.P.C is perused juxtaposing her initial statements recorded under Sections 164 and 154 Cr.P.C, story as have been put forth in the status report as well as record made available by the Investigating Agency, appears to be highly improbable and cannot be accepted on the face of it. It is not understood that in case bail petitioner sexually assaulted the victim/prosecutrix in the month of March, 2020 then what prevented her to disclose this fact to the police on 24.7.2020 when she lodged the FIR against the present bail petitioner as well as Maddi Baba. Even her statement under Section 164 Cr.P.C recorded on ::: Downloaded on - 03/10/2020 20:18:06 :::HCHP 8 25.7.2020, nowhere discloses commission of offence under Section 376 of IPC by present bail petitioner and as such, there appears to be considerable force in the arguments of learned Senior counsel for the .
petitioner that statement recorded on 26.7.2020 is after thought and has been made with a view to falsely implicate the present bail petitioner and to give clean cheat to Maddi Baba, at whose instance victim/prosecutrix allegedly sold her gold ornaments to the bail petitioner. Otherwise also, subsequent version/Statement of victim/prosecutrix recorded under Section 161 Cr.P.C r given to the police on 26.7.2020 creates serious doubt with regard to correctness of allegations levelved by her in her initial statements recorded under Sections 154 and 164 Cr.P.C.
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 collected on record by the investigating agency, but having noticed aforesaid glaring aspect of the matter, this Court sees no reason to let bail petitioner incarcerate in jail for indefinite period, especially when nothing remains to be recovered from the him. Co-accused Maddi Baba already stands enlarged on bail. Medical evidence adduced on record does not support the case of the prosecution because there is no definite opinion rendered by Medical Officer.
9. It has been repeatedly held by Hon'ble Apex Court as well as this Court in catena of cases that one is deemed to be innocent till the time ::: Downloaded on - 03/10/2020 20:18:06 :::HCHP 9 his /her guilt is not proved, in accordance with law. In the case at hand, the guilt, if any, of the bail petitioner is yet to be proved, in accordance with law. Apprehension expressed by learned Deputy Advocate General .
that in the event of bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions, as has been fairly admitted by learned counsel representing the 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 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 ::: Downloaded on - 03/10/2020 20:18:06 :::HCHP 10 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 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.
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 ::: Downloaded on - 03/10/2020 20:18:06 :::HCHP 11 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
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 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, ::: Downloaded on - 03/10/2020 20:18:06 :::HCHP 12 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.
13. 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) danger, of course, of justice being thwarted by grant of bail.
14. Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing personal bond in the sum of Rs. 2,00,000/- (Rs. Two lac) with two local surety in the like amount, to the satisfaction of the learned 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;::: Downloaded on - 03/10/2020 20:18:06 :::HCHP 13
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 .
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.
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.
(Sandeep Sharma), Judge 1st October, 2020 (shankar) ::: Downloaded on - 03/10/2020 20:18:06 :::HCHP