Himachal Pradesh High Court
__________________________________________________________ vs State Of Himachal Pradesh on 26 July, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr. MP(M) No. 1263 of 2019
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Date of Decision: 26th July, 2019
__________________________________________________________
Arjun Shahi ........ Petitioner
Versus
State of Himachal Pradesh .....Respondent.
__________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioner: Mr. Vinay Thakur, Advocate.
For the Respondent: Mr. Sudhir Bhatnagar & Mr. Sanjeev
Sood, Additional Advocate Generals,
with Mr. Kunal Thakur, Deputy
Advocate General.
__________________________________________________________
Sandeep Sharma, Judge (oral):
Bail petitioner namely, Arjun Shahi, who is behind the bars since 4.12.2018, 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.105 of 2018, dated 30.11.2018, under Sections 363, 366 376 & 417 of IPC and Section 4 of the Protection of Children from Sexual Offences Act, registered at police Station, Jubbal, District Shimla, Himachal Pradesh.
1Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 01:20:21 :::HCHP 22. Sequel to orders dated 5th/23rd July, 2019, ASI Deepak Kumar, has come present alongwith the record. Mr. .
Sudhir Bhatnagar, learned Additional Advocate General, has also placed on record 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 on 1.11.2018, prosecutrix (name withheld to protect her identity ) lodged a complaint at police Station, Jubbal, District Shimla, H.P., stating therein that she is studying in 9th class at Government Senior Secondary School, Tikker and present bail petitioner met her for the first time in the month of August, 2018. She also stated that she used to visit the quarter/room of the bail petitioner alongwith his sister. On 19 th September, 2018 bail petitioner came to her house and persuaded her to run away from her house, so that they solemnize the marriage. Prosecutrix alleged that on 22nd September, 2018 she on the askance of the bail petitioner came to place called Kathsu, from where she alongwith bail petitioner went to Rohru in a bus. On the same day, bail ::: Downloaded on - 29/09/2019 01:20:21 :::HCHP 3 petitioner took the prosecutrix to Rampur, where they both stayed in a hotel. On 24 th September, 2018 bail petitioner .
alongwith prosecutrix went to Jammu and thereafter to Chandigarh. On 25.9.2018, allegedly bail petitioner took the prosecutrix to Manali, where they stayed in village Barsi Manikaran till 16th October, 2018. On 17.10.2018, prosecutrix and bail petitioner came to Shimla and on 18.10.2018 bail petitioner brought the prosecutrix to his quarter at Barthata, District Shimla, H.P. On 22.11.2018, brother of the prosecutrix after having coming to know that prosecutrix is residing at the room of the bail petitioner at Barthata, came there and took her to his Dera at Satai. Prosecutrix alleged that during her stay with the bail petitioner, she was subjected to forcible sexual intercourse by the bail petitioner. Subsequently, on 30.11.2018, complaint, as has been taken note hereinabove, came to be lodged at the behest of the prosecutrix against the bail petitioner. On the basis of which, formal FIR, as detailed hereinabove, came to be lodged against the bail petitioner and since 4.12.2018, he is behind the bars.
::: Downloaded on - 29/09/2019 01:20:21 :::HCHP 44. Mr. Vinay Thakur, learned counsel representing the bail petitioner while referring to the record/status report, .
vehemently argued that no case much less under Section 376 of IPC is made out against the bail petitioner because bare perusal of initial statements having been made by the prosecutrix under Section 154 Cr.P.C and 164 Cr.P.C, nowhere indicates that she was abducted or compelled by the bail petitioner at any point of time to run away, rather she of her own volition remained in the company of the bail petitioner that too for 1 ½ months without raising any hue and cry. Mr. Thakur, while inviting attention of this Court to the aforesaid statements made by the prosecutrix, made serious attempt to persuade this Court to agree with his contention that prosecutrix had prior proximity with the bail petitioner and they both wanted to marry with each other. Lastly, Mr. Thakur, contended that though, guilt, if any, of the bail petitioner is yet to be ascertained, but careful perusal of the evidence adduced on record till date by the Investigating Agency, clearly suggest that prosecutrix was in the company of the bail petitioner of her own volition and without there being ::: Downloaded on - 29/09/2019 01:20:21 :::HCHP 5 any external pressure and as such, present bail petitioner, who has already suffered more than 7 months is entitled to be .
released on bail, especially when nothing remains to be recovered from him.
5. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while opposing aforesaid prayer made on behalf of the bail petitioner, contended that though challan stands filed in the competent court of law, but keeping in view the gravity of offence alleged to have been committed by the bail petitioner, he does not deserve any leniency and as such, petition having been filed by the petitioner may be rejected.
While refuting arguments/submissions advanced by learned counsel for the petitioner with regard to implied consent of the prosecutrix, Mr. Bhatnagar, learned Additional Advocate General , contended that though evidence adduced on record clearly suggest that bail petitioner taking undue advantage of innocence of the prosecutrix, not only made her to run her house, but also sexually assaulted her against her wishes, but even otherwise consent, if any of the prosecutrix ::: Downloaded on - 29/09/2019 01:20:21 :::HCHP 6 being minor is not material while determining the guilt of the bail petitioner.
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6. Having heard learned counsel representing the parties and perused the material available on record, though this Court finds that at the time of alleged incident prosecutrix was minor, but careful perusal of her statement given to the police as well as Magistrate under Section 154 Cr.P.C & 164 Cr.P.C. respectively, this Court is persuaded to agree with the submissions of learned counsel for the bail petitioner that prosecutrix had prior acquaintance with the bail petitioner and she had been meeting her frequently. There is nothing to suggest that bail petitioner taking undue advantage of innocence of the prosecutrix made her to run from her house, rather as per statement of the prosecutrix, she had been visiting the quarter/ room of the bail petitioner even prior to the date of alleged incident. Moreover, after 24.9.2018, when allegedly bail petitioner took the prosecutrix to different places as stand mentioned in the earlier part of this judgment, there is nothing to infer that prosecutrix during her stay with the petitioner made an attempt, if any, either to inform her ::: Downloaded on - 29/09/2019 01:20:21 :::HCHP 7 parents or to police. There is nothing in the aforesaid statements of the prosecutrix that during her stay with the .
bail petitioner, she was threatened or confined to one room.
Moreover, as per own statement of the prosecutrix, she came back to quarter/room of the bail petitioner on 17.10.2018 at Barthata and remained there till 22.11.2018, but even during this period, she failed to lodge complaint, if any, against the bail petitioner.
7. Leaving everything aside, allegedly prosecutrix came to be recovered from the illegal custody of the bail petitioner on 22.11.2018, but FIR came to be lodged on 30.11.2018 and there is no explanation, if any, rendered on record with regard to delay. True, it is that as per ossification test, prosecutrix was minor(1617 years) at the time of alleged incident, but having taken note of the conduct of the prosecutrix, which is reflected in her own statements given under Sections 154 and 164 Cr.P.C, this Court is convinced and satisfied that she was capable of understanding the consequences of her being in the company of bail petitioner.
::: Downloaded on - 29/09/2019 01:20:21 :::HCHP 88. 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 prosecution, but having noticed aforesaid glaring aspects, this Court sees no reason to allow the bail petitioner to incarcerate in jail for an indefinite period, especially when guilt, if any, of him is yet to be proved, in accordance with law.
9. It has been repeatedly held by Hon'ble Apex Court as well as this Court that one is deemed to be innocent till the time his /her guilt is not proved, in accordance with law.
Investigation in the case is complete and there is no material placed on record by the investigating Agency suggestive of the fact that in the event of petitioner's being enlarged on bail, he may flee from justice and as such, prayer made on behalf of the bail petitioner deserves to be considered.
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 - 29/09/2019 01:20:21 :::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 - 29/09/2019 01:20:21 :::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 - 29/09/2019 01:20:21 :::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 - 29/09/2019 01:20:21 :::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 - 29/09/2019 01:20:21 :::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, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing personal bond in the sum of Rs.
1,00,000/ (Rs. one lakh) with one 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 ::: Downloaded on - 29/09/2019 01:20:21 :::HCHP 14 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;
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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.
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 26th July, 2019 (shankar) ::: Downloaded on - 29/09/2019 01:20:21 :::HCHP