Himachal Pradesh High Court
Sahil Thakur vs State Of Himachal Pradesh on 25 June, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
Cr.M.P.(M) No. 798 of 2015.
Date of decision : 25.6.2015 ____________________________________________________________ Sahil Thakur .....Petitioner.
Versus State of Himachal Pradesh. .....Respondent.
Coram r The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? No For the Petitioner : Mr. Ajay Kochhar, Advocate, with Mr. Vivek Sharma, Advocate.
For the Respondent : Mr. Virender Kumar Verma, Ms. Meenakshi Sharma and Mr. Rupinder Singh, Addl. A.Gs. with Ms. Parul Negi, Dy. A.G SI/Addl. SHO Vikas Sharma, P.S. Rohru, District Shimla, present with records.
Tarlok Singh Chauhan, Judge (Oral).
The petitioner has approached this Court for grant of bail under Section 439 Cr.P.C. in case FIR No. 27 of 2015 dated 29.4.2015 registered at Police Station, Rohru, District Shimla under Sections 363, 366A, 376 IPC and Section 4 of POCSO Act.
2. Respondent-State have produced the record and have also filed the status report.
3. What emerges from the record is that the petitioner and ____________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes ::: Downloaded on - 15/04/2017 18:26:43 :::HCHP 2 the prosecutrix are studying in one institute. On 25.4.2015 she went .
alongwith the petitioner and they were also accompanied by Rajat, Nitika and the vehicle belonged to one Harshav Thakur. On 26.4.2015, all four of them stayed at a hotel at Solan (Oachghat). On 27.4.2015 they went to Chandigarh and thereafter stayed in the same room where the petitioner is alleged to have made forcible physical contact with the prosecutrix. The complainant reached home on 2.5.2015.
However, prior to that the father of the prosecutrix had already lodged a complaint on 29.4.2015 regarding the absence of his daughter.
4. The prosecutrix till 2.5.2015 made no grievance but lateron claimed that she had not only been kidnapped but had been offered a drink which had been laced with some drug, as a result whereof, she was remained unconscious and the petitioner took advantage of this fact and forcibly established physical contact with her.
5. Mr. Ajay Kochhar, learned counsel for the petitioner has strenuously argued that having regard to the peculiar facts and circumstances of this case, the petitioner cannot be deprived of his liberty, particularly when he belongs to a good family and is permanent resident and having landed property at Rohru.
6. On the other hand, the learned Additional Advocate General has opposed the bail application by alleging that the petitioner is an accused in a serious offence and bail ought not to be granted in such circumstances.
7. What probably has been over-looked by Mr. Verma is the fact that the object of bail is only to secure the appearance of the ::: Downloaded on - 15/04/2017 18:26:43 :::HCHP 3 accused person at the time of trial by granting reasonable amount of .
bail. Therefore, the object of bail is neither punitive nor preventative. At this stage deprivation of liberty will have to be considered a punishment, unless of course, the presence of the accused person cannot be secured. 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.
Even otherwise, the law with regard to bail is now well settled. As early as in the year 1978, the Hon'ble Supreme Court in Gurcharan Singh vs. State (Delhi Administration) (1978) 1 SCC 118 laid the following criteria for grant of bail:
"22. In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail subject to sub- section (3) of Section 437 CrPC if it deems necessary to act under it.
Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437(1) CrPC and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence.******
24. Section 439(1) CrPC of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437(1) there is no ban imposed under Section 439(1), CrPC against granting of bail by the High Court or the Court of Session to ::: Downloaded on - 15/04/2017 18:26:43 :::HCHP 4 persons accused of an offence punishable with death or .
imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1) CrPC of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of r Section 437(1) and Section 439(1) CrPC of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out."
8. The Hon'ble 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;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) ikelihood 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 - 15/04/2017 18:26:43 :::HCHP 5
9. Thereafter, in a detailed judgment, the Hon'ble Supreme .
Court in Siddharam Satlingappa Mhetre versus State of Maharashtra and others, (2011) 1 SCC 694, while relying upon its decision rendered by its Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565, laid down the following parameters for grant of bail:-
"111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are r clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour.
112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood to repeat similar or the other offences.
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.::: Downloaded on - 15/04/2017 18:26:43 :::HCHP 6
(vii) The courts must evaluate the entire available material against .
the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full r investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.
114. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the Judge concerned, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the ::: Downloaded on - 15/04/2017 18:26:43 :::HCHP 7 option of approaching the superior court against the court of .
Sessions or the High Court is always available."
(Emphasis supplied)
10. In Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40, the Hon'ble Supreme Court made the following pertinent observations in paras 21, 22, 23, and 40 as under:-
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable r amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is 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.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted 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 this country, 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.
23. Apart from the question of prevention being the object of a 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 un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.::: Downloaded on - 15/04/2017 18:26:43 :::HCHP 8
40. The grant or refusal to grant bail lies within the discretion of .
the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in r attendance thereon whenever his presence is required."
11. Merely because the allegations against the petitioner are serious, cannot be the only consideration for declining the bail. This was so held by the Hon'ble Supreme Court in its recent decision in Dr.Vinod Bhandari vs. State of Madhya Pradesh 2015 AIR SCW 1052 wherein it was held as follows:
"12. It is well settled that at pre-conviction stage, there is presumption of innocence. The object of keeping a person in custody is to ensure his availability to face the trial and to receive the sentence that may be passed. The detention is not supposed to be punitive or preventive. Seriousness of the allegation or the availability of material in support thereof are not the only considerations for declining bail. Delay in commencement and conclusion of trial is a factor to be taken into account and the accused cannot be kept in custody for indefinite period if trial is not likely to be concluded within reasonable time. Reference may be made to decisions of this Court in Kalyan Chandra Sarkar vs. Rajesh Ranjan, (2005) 2 SCC 42 : (AIR 2005 SC 921), State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21 : (AIR 2005 SC 3490), State of Kerala vs. Raneef, (2011) 1 SCC 784 : (AIR 2011 SC 340) and Sanjay Chandra vs. CBI (2012) 1 SCC 40 :
(AIR 2012 SC 830).
13. In Kalyan Chandra Sarkar (supra), it was observed :
"8. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article ::: Downloaded on - 15/04/2017 18:26:43 :::HCHP 9 21 which guarantees the above right also contemplates .
deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non-bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. But even persons accused of non-bailable offences are entitled to bail if the court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so. In that process a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In r such cases if the circumstances then prevailing require that such persons be released on bail, in spite of his earlier applications being rejected, the courts can do so."
14. In Amarmani Tripathi (supra), it was observed :
"18. It is well settled that the matters to be considered in an application for bail are (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 charge; (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 tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi[(2001) 4 SCC 280]: (AIR 2001 SC 1444) and Gurcharan Singh v. State (Delhi Admn.) [(1978) 1 SCC 118].: (AIR 1978 SC 179). While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan [(2004) 7 SCC 528]: (AIR 2004 SC 1866) : (SCC pp. 535-36, para 11) :
(at Page 1871 of AIR) "11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:::: Downloaded on - 15/04/2017 18:26:43 :::HCHP 10
(a) The nature of accusation and the severity of .
punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598] : (AIR 2002 SC 1475) and Puran v. Rambilas [(2001) 6 SCC 338.) : (AIR 2001 SC 2023)"
r to
22. While a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no prejudging and no prejudice, a brief examination to be satisfied about the existence or otherwise of a prima facie case is necessary. An examination of the material in this case, set out above, keeping in view the aforesaid principles, disclose prima facie, the existence of a conspiracy to which Amarmani and Madhumani were parties. The contentions of the respondents that the confessional statement of Rohit Chaturvedi is inadmissible in evidence and that that [pic]should be excluded from consideration, for the purpose of bail is untenable. This Court had negatived a somewhat similar contention in Kalyan Chandra Sarkar thus: (SCC p. 538, para 19) : (at page 1873 of AIR) "19. The next argument of learned counsel for the respondent is that prima facie the prosecution has failed to produce any material to implicate the respondent in the crime of conspiracy. In this regard he submitted that most of the witnesses have already turned hostile. The only other evidence available to the prosecution to connect the respondent with the crime is an alleged confession of the co-accused which according to the learned counsel was inadmissible in evidence. Therefore, he contends that the High Court was justified in granting bail since the prosecution has failed to establish even a prima facie case against the respondent. From the High Court order we do not find this as a ground for granting bail. Be that as it may, we think that this argument is too premature for us to accept. The admissibility or otherwise of the confessional statement and the effect of the evidence already adduced by the prosecution and the merit of the evidence that may be adduced hereinafter including that of the witnesses sought to be recalled are all matters to be considered at the stage of the trial."
15. In Raneef (supra), it was observed :
"15. In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a ::: Downloaded on - 15/04/2017 18:26:43 :::HCHP 11 case? Of course this is not the only factor, but it is certainly .
one of the important factors in deciding whether to grant bail.
In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr. Manette in Charles Dicken's novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille."
16. In Sanjay Chandra (AIR 2012 SC 830) (supra), it was observed :
r to "21. In bail applications, generally, it has been laid down from the earliest times that 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 is 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.
24. In the instant case, we have already noticed that the "pointing finger of accusation" against the appellants is "the seriousness of the charge". The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is a possibility of the appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather "recalibrating the scales of justice".
12. No doubt, the accusations against the petitioner are of a serious nature, but then the same is not only the consideration for declining the bail. At this stage, the allegations initially made by the prosecutrix under Section 161 Cr.P.C. when compared with the statement recorded under Section 164 Cr.P.C. would reveal that there is a shift in her stand. Initially, she is alleged to have accompanied the petitioner of her own volition, but lateron she alleged that she had been kidnapped. In earlier statement under Section 161 Cr.P.C., there is no allegation of her being administered with drink laced with some drug, ::: Downloaded on - 15/04/2017 18:26:43 :::HCHP 12 while in subsequent statement recorded under Section 164 Cr.P.C., .
she claims to have been given a drink which was laced with some drug.
13. Another fact which cannot be ignored by this Court is that it was the prosecutrix, who travelled far and distant places to be with the petitioner and she has remained with him for more than five days without any protest. Not only did she travel a distance of more than 150 KM and stayed with the petitioner, that too, in a hotel at Solan (Oachghat), but later she even accompanied the petitioner for a joy-
ride to Chandigarh. In such background, the allegations set out by the prosecutrix cannot be taken at the face value and have to be taken with a pinch of salt.
14. As observed by the Hon'ble Court in number of decisions and thereafter reported in Dr. Vinod Bhandari's case (supra) that the object of keeping a person in custody is to ensure his availability to face the trial and to receive the sentence that may be passed.
However, this detention is not supposed to be punitive or preventive.
On the basis of the record, it cannot be said that the petitioner would in any manner impede the course and cause of justice or that the petitioner may in any manner hamper the free, fair and full investigation. Therefore, once the Court is satisfied that the petitioner would be available to face the trial and even receive the sentence, I see no reason why the benefit of bail should not be extended to the petitioner. This is all the more so because it is not even the case of the prosecution that in the event of the petitioner being released on bail, he may flee from justice or would not be available to serve the sentence.
::: Downloaded on - 15/04/2017 18:26:44 :::HCHP 13Even otherwise stringent conditions for securing his presence for the .
purpose of trial etc. can always be imposed.
15. Accordingly, the petition is allowed and the petitioner is ordered to be released on bail in case FIR No. 27 of 2015 dated 29.4.2015 registered at Police Station, Rohru, District Shimla, under Sections 363, 366A, 376 IPC and Section 4 of POCSO Act, on the following terms and conditions:
(i) The petitioner shall furnish bail bonds in the sum of `50,000/- with one surety of the like amount to the satisfaction of any Judicial Magistrate 1st Class, stationed at Rohru, District Shimla, H.P.;
(ii) the petitioner shall fully co-operate with the investigation as and when required by the Investigating Agency ;
(iii) the petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to any police officer;
(iv) the petitioner shall not tamper with the prosecution evidence or threaten the witnesses;
(v) the petitioner shall not leave the country without prior permission of the Court;
(vi) the petitioner shall not misuse his liberty in any manner.
Learned Judicial Magistrate 1st Class, stationed at Rohru, is directed to comply with the directions issued by the High Court, vide communication No. HHC.VIG/ Misc. Instructions/93-IV. 7139 dated 18.3.2013.
::: Downloaded on - 15/04/2017 18:26:44 :::HCHP 1416. Any observation made hereinabove shall not be taken .
as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made hereinabove.
Petition stands disposed of.
Copy 'dasti'.
June 25, 2015. (Tarlok Singh Chauhan)
(GR) Judge.
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