Himachal Pradesh High Court
Decided On: 02.07.2024 vs State Of Himachal Pradesh on 2 July, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:4644
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.1226 of 2024
Decided on: 02.07.2024
.
____________________________________________________________
Vijay 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. Romesh Verma, Senior
Advocate with Mr. Pardeep Verma
r and Mr. Sumit Sharma,
Advocates.
For the Respondent : Mr. Rajan Kahol & Mr. Vishal
Panwar, Additional Advocates
General, for the respondent/State
along with SI/SHO Amit Sharma,
P.S. Chirgaon, District Shimla.
____________________________________________________________
Sandeep Sharma, Judge (oral):
Sequel to order dated 15.06.2024, whereby petitioner was ordered to be enlarged on interim bail in the event of his arrest in case FIR No.43/24 dated 29.05.2024, under Sections 376 and 342 of IPC, registered with Police 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 08/07/2024 20:29:55 :::CIS 2Station Chirgaon, District Shimla, H.P., respondent/State has filed status report and SI/SHO Amit Sharma, P.S. Chirgaon, .
District Shimla, has come present along with record. Record perused and returned.
2. Close scrutiny of status report as well as record made available to this Court reveals that on 29.05.2024, victim/prosecutrix (name withheld) got her statement recorded under Section 154 Cr.P.C. at the Police Station, detailed hereinabove, alleging therein that she after having completed her matriculation in the year 2018 had left the school. She alleged that nowadays, she is doing the work of tailoring and resides with her father and children of her brother. She alleged that for one and a half year, she knows bail petitioner, who at first meeting had told her that he is not married. She alleged that after two-three months, she came to know that bail petitioner is married and as such, she stopped talking to him, but bail petitioner kept on talking to her from different numbers. She alleged that when she told bail ::: Downloaded on - 08/07/2024 20:29:55 :::CIS 3 petitioner that she would disclose such facts to his wife, he stopped giving calls, but suddenly, after six months, he gave .
a telephonic call and extended threats. She alleged that on 26.05.2024, bail petitioner called him in the night and compelled her to meet him at 9 a.m. on 27.05.2024. She alleged that at 9 a.m., she met bail petitioner at Chirgaon and thereafter, bail petitioner sexually assaulted her against her wishes. She alleged that bail petitioner kept her in his house for two days and thereafter, refused to solemnize the marriage. In the aforesaid background, FIR, as detailed hereinabove, came to be instituted against bail petitioner under the relevant provisions of law, as taken note hereinabove.
3. Before petitioner could be arrested in the case, detailed hereinabove, he approached this Court in the instant bail petition. Vide order dated 15.06.2024, this Court while enlaring bail petitioner on interim bail, specifically directed him to join the investigation. Since bail petitioner has joined ::: Downloaded on - 08/07/2024 20:29:55 :::CIS 4 investigation and nothing remains to be recovered from him, he has approached this Court for confirmation of the interim .
bail granted vide order dated 15.06.2024.
4. Mr. Rajan Kahol, learned Additional Advocate General while fairly admitting factum with regard to completion of investigation and joining of the investigation by the present bail petitioner submits that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of offence alleged to have been committed, he does not deserve any leniency. Mr. Kahol, while making this Court peruse statements of victim-prosecutrix recorded under Sections 154 and 164 Cr.P.C., contends that bail petitioner taking undue advantage of innocence of the victim-
prosecutrix not only attempted to sexually assault her against her wishes, but also extended threats and as such, prayer made on behalf of the petitioner for grant of bail deserves outright rejection. Mr. Kahol submits that once victim/prosecutrix has categorically alleged that she was ::: Downloaded on - 08/07/2024 20:29:55 :::CIS 5 subjected to forceful sexual intercourse against her wishes, no illegality can be said to have been committed by the .
Investigating Agency, while registering case under Section 376 IPC. Lastly, Mr. Kahol further states that in the event of petitioner being enlarged on bail, he may not only flee from justice, but may also cause harm to victim/prosecutrix, whose statement is yet to be recorded in the Court of law.
5. Having heard learned counsel representing parties and perused material available on record, this Court finds that pursuant to order dated 15.06.2024, bail petitioner has joined the investigation and as of today, nothing remains to be recovered from him. No doubt, bail petitioner is accused of heinous crime punishable under Section 376 IPC, but having perused the statements made by victim/prosecutrix recorded under Section 154 and 164 Cr.P.C., this Court is not persuaded to agree with learned Additional Advocate General that petitioner taking undue advantage of innocence of victim/prosecutrix sexually assaulted her against her wishes.
::: Downloaded on - 08/07/2024 20:29:55 :::CIS 6It is apparent from the statements made by victim/prosecutrix that she had been meeting the bail .
petitioner of her own volition for more than one and a half year and during this period, they had developed physical relations.
6. Though, victim/prosecutrix has alleged that in first meeting, bail petitioner had disclosed her that he is bachelor, but subsequently factum of his marriage with another person came to her knowledge, but interestingly, victim/prosecutrix despite having known that bail petitioner is married person, continued to meet and talk to him. Once, victim/prosecutrix was aware that bail petitioner on account of his earlier marriage may not solemnize marriage with her, there was no reason for her to meet him on 27.05.2024, on which date, allegedly, she was subjected to forceful sexual intercourse. As per own case of the victim/prosecutrix, after alleged incident on 27.05.2024, she went along with petitioner and remained there for two days in his house. If it ::: Downloaded on - 08/07/2024 20:29:55 :::CIS 7 is so, there is no explanation that why incident of forcible sexual intercourse, if any, was not reported to family of the .
bail petitioner or Police, rather, after two days, when bail petitioner allegedly refused to solemnize the marriage, victim/prosecutrix reported the matter to the Police.
7. This Court cannot lose site of the fact that victim/prosecutrix is major and as such, she was fully aware of the consequences of her being in the company of bail petitioner, with whom, she actually wanted to solemnize marriage. Though, case at hand is to be heard and decided by the Court below on the basis of totality of evidence collected on record by the Investigating Agency, but having perused material available on record, this Court is convinced and satisfied that victim/prosecutrix of her own volition and without there being any external pressure, had joined the company of the bail petitioner and as such, no fruitful purpose would be served by keeping the bail petitioner behind bars for an indefinite period, especially, when he has already ::: Downloaded on - 08/07/2024 20:29:55 :::CIS 8 joined investigation and nothing remains to be recovered from him. Hon'ble Apex Court as well as this Court in catena of .
cases have repeatedly held that one is deemed to be innocent till the time, guilt of his/her is not proved in accordance with law. In the case at hand also, guilt, if any, of the accused is yet to be proved in accordance with law, by leading cogent and convincing evidence on record. Apprehension expressed by the learned Additional Advocate General that in the event of petitioner's 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 stated by the learned counsel for the petitioner.
8. 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 ::: Downloaded on - 08/07/2024 20:29:55 :::CIS 9 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.
9. 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 ::: Downloaded on - 08/07/2024 20:29:55 :::CIS 1 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."
10. 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 - 08/07/2024 20:29:55 :::CIS 1
11. 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 ::: Downloaded on - 08/07/2024 20:29:55 :::CIS 1 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 ::: Downloaded on - 08/07/2024 20:29:55 :::CIS 1 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 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. 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.::: Downloaded on - 08/07/2024 20:29:55 :::CIS 1
13. Consequently, in view of the above, order dated 15.06.2024 passed by this Court, is made absolute, 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 him 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.
14. 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.::: Downloaded on - 08/07/2024 20:29:55 :::CIS 1
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.
16. The bail petition stands disposed of accordingly.
The petitioner is permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.
July 02, 2024 (Sandeep Sharma),
Rajeev Raturi Judge
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