Himachal Pradesh High Court
Anand Gopal vs State Of Himachal Pradesh on 31 October, 2018
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CrMP(M) No. 1354 of 2018 .
Decided on: 31.10.2018
Anand Gopal ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? Yes.
For the petitioner: Mr. Ajay Sharma, Advocate.
For the respondent: Mr. Shiv Pal Manhans, Additional Advocate General, with Mr. Raju Ram Rahi, Deputy Advocate General.
ASI Paramjeet, P.S.Bhoranj, present in person.
Vivek Singh Thakur, Judge.
Petitioner has preferred present petition under Section 439 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C') for grant of regular bail in case FIR No. 115 of 2018, dated 9th August, 2018, registered under Sections ::: Downloaded on - 06/11/2018 22:55:26 :::HCHP 15 376 and 506 of the Indian Penal Code (hereinafter referred to as 'IPC') registered at Police Station Bhoranj, Hamirpur, H.P. .
2. Brief facts of the case are that the petitioner has been arrested in pursuance to the complaint lodged by prosecutrix, stating therein that since about last two years, one person Anand Gopal was coming for 'Satsang' in their village and she had met the said person in a 'Satsang' in village Bhated in the house of her friend. At about two years ago and at that time, on his proposal to visit her house for 'Satsang', she had told him that she had to ask her husband.
Whereupon, petitioner had asked to come with her husband on that day in the evening. The prosecutrix along with her husband had met him in village Bhated in presence of number of persons where her husband had acceded to proposal of petitioner to visit their house for 'Satsang' in July, 2016. For 'Satsang', petitioner remained in their house for four days and during that period he used to have vulgar conversation with ladies in front of their spouse on the pretext of taking their test. People in the area were not objecting his behaviour believing him a 'renowned Guru'. They were treating him 'God' ::: Downloaded on - 06/11/2018 22:55:26 :::HCHP 15 with full faith in him. On 10.6.2018, he came in her village for 'Satsang' in the house of one Ranjeet Singh. On that day, he .
told her husband that his next 'Satsang' had been cancelled and thus he had to reside in prosecutrix's house for three days and asked him to come at 9:00 a.m. in the next morning to take him to his house. On 11.6.2018, her husband, after living petitioner in their house, had gone to open his shop. The petitioner was accompanied by a boy named Lucky, who was sent by petitioner to Hamirpur on the pretext of some work and petitioner had handed over his clean clothes to prosecutrix for washing. At that time, her younger son was sleeping, whereas elder son had gone out along with his friends. After taking meals, petitioner called her in the drawing room and on the pretext of taking her test, had put his hand on her hand and slapped her by telling that God was is going to bless her.
Thereafter, petitioner asked her to take him to a lower room and immediately after reaching in the said room, he pushed her in the inner room forcibly and ravished her on the pretext of test and thereafter, threatened her not to disclose the same to anybody with threat that on disclosing the same she has to ::: Downloaded on - 06/11/2018 22:55:26 :::HCHP 15 face wrath of God. After the incident, prosecutrix was perplexed and her behaviour became abnormal, whereupon .
her husband took her to the doctor for treatment. On repeated solicitation by husband, she had disclosed the incident to her husband, whereafter, complaint was lodged against petitioner in the Police Station. It is case of the prosecution that present place of residence of petitioner is not his permanent address, but he belongs to unknown place and during investigation his address disclosed by him as ''Sacha Baba Ashram, Village Haripur Kla, Post Office Ray Wala, Tehsil Rishi Kesh, District Dehradun" has been found not in existence.
3. It is contended on behalf of the petitioner that there is about two months delay in lodging the F.I.R. and allegations may have been levelled for mudslinging or for extorting money from the petitioner. It is contended that in her statement, the prosecutrix has stated that her younger son was sleeping in the house at the time of alleged incident and therefore, it was highly improbable to commit an offence as alleged and without admitting guilty, it is also submitted in alternative that as per statement of prosecutrix, she was ::: Downloaded on - 06/11/2018 22:55:26 :::HCHP 15 meeting petitioner since last about two years and it might be the case where son would have seen the prosecutrix in .
compromising position and thus, the complaint might have been lodged for face savings. Further that the petitioner is residing on the present address since last about 1415 years, having his Ration Card and Identity Card of the present place.
His Aadhar Card of the said address is also there. Therefore, there is no possibility of his absconding and the petitioner is available for trial, who is not in a position to threaten the witnesses and thus, there is a prima facie case made out for releasing the petitioner on bail.
4. Relying on judgment passed by the Apex Court Court in case titled Gudikanti Narasimhulu Versus Public Prosecutor, High Court of Andhra Pradesh, AIR 1978 SC 429 , it is argued that at the pretrial stage, bail is right and jail is exception. Further reliance has been put on pronouncement of judgment passed by this High Court in Vimal Kumar Bawa Versus State of H.P. 2002 (1) Shimla L.C. 59, to canvass that mere arrest of accused in a serious crime, in itself, is not sufficient to reject the bail application and thus, the petitioner is also ::: Downloaded on - 06/11/2018 22:55:26 :::HCHP 15 entitled for release with condition imposed upon him, as no purpose is going to be served by keeping the petitioner behind .
the bars during trial, for his guilt which is yet to be established. It is also contended that at the time of rejection of bail, learned Sessions Judge has acted as a social reformer, but not in consonance with the law of land.
5. Learned Deputy Advocate General under instructions of Investigating Officer present in the Court has submitted that the address of district Haridwar supplied by the petitioner has been found to be incorrect, as the said Ashram on inquiry through police at Haridwar was found to be closed and therefore, as permanent address has not been disclosed by the petitioner and for want of any roots in the society and for disclosing only his temporary address, there is every possibility of absconding of petitioner, because as nothing is known about his origin and further that by taking undue advantage of his influence on the prosecutrix, he has committed a heinous crime by exploiting fiduciary relationship of 'Guru' and disciple between him and prosecutrix, and breaching trust of the society, and thus, it is argued that his ::: Downloaded on - 06/11/2018 22:55:26 :::HCHP 15 release on bail shall have adverse impact on the society and therefore, rejection of his bail application has been prayed.
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6. Considering th question of personal liberty with larger interest of public, the Apex Court has held that the Courts are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bedrock of the constitutional right and accentuated further on human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world.
People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilised society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be paralysed and immobilised. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. [The] society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned ::: Downloaded on - 06/11/2018 22:55:26 :::HCHP 15 to an individual when an individual becomes a danger to the collective and to the societal order. Accent on individual .
liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability from its members, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, when an individual behaves in a disharmonious manner ushering in the disorderly things which the society disapproves, the legal consequences are bound to follow. At that stage, the court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or caprice. It has to be guided by the established parameters of law. (See Neeru Yadav versus State of U.P., (2014) 6 SCC 508, para 16; Rakesh Ranjan Yadav versus CBI, (2007) 1 SCC 70, para 16; Masroor versus State of U.P., (2009) 14 SCC 286, para 15; Ash Mohammad versus Shiv Raj Singh alias Lalla Babu and another, (2012) 9 SCC 446, paras 10 & ::: Downloaded on - 06/11/2018 22:55:26 :::HCHP 15 25; Chandrakeshwar Prasad alias Chandu Babu versus State of Bihar and another, (2016) 9 SCC 443 paras 10, 11) .
7. The Apex Court also also held that detailed examination of evidence and elaborate documentation of merits of the case are to be avoided. (See Puran versus Rambilas and another, (2001) 6 SCC 338, para 8; Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC 528: (SCC pp. 53536, para 11); Vinod Bhandari versus State of Madhya Pradesh, (2016) 15 SCC 389, para 13; Lt. Col.
Prasad Shrikant Purohit versus State of Maharashtra, (2018) 11 SCC 458, para 2.) Consideration of details of the evidence is not a relevant consideration. While it is necessary to consider the prima facie case, an exhaustive exploration of the merits of the case should be avoided by refraining from considering the merits of material/evidence collected by the prosecution. (See Anil Kumar Yadav versus State (NCT of Delhi) and another, (2018) 12 SCC 129, para 15; and Criminal Appeal No. 1175 of 2018, titled The State of ::: Downloaded on - 06/11/2018 22:55:26 :::HCHP 15 Orissa versus Mahimananda Mishra, decided on 18 th September, 2018) .
8. In case Dataram Singh versus State of Uttar Pradesh and another, (2018) 3 SCC 22, para 16, it has been observed that it is not necessary to go into the correctness or otherwise of the case made against the accused as this is a subject matter to be dealt with by the Trial Judge.
9. The relevant factors to be kept in mind at the time of consideration of bail applications as referred in various pronouncements, are as follows:
(1) Satisfaction of the Court in support of the charge as to whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(2) Nature and gravity of the accusation/ charge;
(3) Seriousness of the offence/crime and severity of the punishment in the event of conviction;
(4) Nature and character of supportive evidence;
(5) Character, conduct, behaviour, means, position and standing of the accused;
(6) The Courts must evaluate the entire available material against the accused very carefully;
circumstances which are peculiar to the accused and the Court must also clearly ::: Downloaded on - 06/11/2018 22:55:26 :::HCHP 15 comprehend the exact role of the accused in the case;
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(7) 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;
(8) Position and status of accused with reference to the victim and witnesses to assess the impact that release of accused may make on the prosecution witnesses and reasonable apprehension of the witnesses being influenced or tampered with or apprehension of threat to the complainant/ witnesses and possibility of obstructing the course of justice;
(9) 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;
(10) likelihood and possibility of the accused's likelihood to repeat similar or the other offences;
(11) A reasonable possibility of the presence of the accused not being secured at the trial and danger of the accused absconding or fleeing from justice;
(12) Impact of grant of bail on the society and danger, of course, of justice being thwarted by grant of bail affecting the larger interest of the public or the State;
(13) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice ::: Downloaded on - 06/11/2018 22:55:26 :::HCHP 15 should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified .
detention of the accused;
(14) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(15) Whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(16) 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;
(17) No doubt, this list is not exhaustive. There are no hard and fast rules regarding grant or refusal of bail, each case has to be considered on its own merits. The matter always calls for judicious exercise of discretion by the Court.
(See Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118; Gurbaksh Singh Sibbia versus State of Punjab, (1980) 2 SCC 565; Prahlad Singh Bhati v. State (NCT of Delhi) (2001) 4 SCC 280; Puran v.
Rambilas (2001) 6 SCC 338; Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598; Chaman Lal versus State of U.P. and another, (2004) 7 SCC 525; Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC 528, para 11); Jayendra Saraswathi Swamigal v. State of T.N., (2005) 2 SCC 13, para 16); State ::: Downloaded on - 06/11/2018 22:55:26 :::HCHP 15 of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, para 18; Prashanta Kumar Sarkar versus Ashis Chatterjee and another, (2010) 14 SCC .
496; Siddharam Satlingappa Mhetre versus State of Maharashtra and others, (2011) 1 SCC 694; Prakash Kadam versus Ramprasad Vishwanath Gupta, (2011) 6 SCC 189;
Kanwar Singh Meena versus State of Rajasthan and another, (2012) 12 SCC 180; Anil Kumar Yadav versus State (NCT of Delhi) and another, (2018) 12 SCC 129;
Criminal Appeal No. 1175 of 2018, titled The State of Orissa versus Mahimananda Mishra, decided on 18th September, 2018)
10. Our society has tremendous faith in religious 'Gurus' and they are treated by the public, equivalent to God and normally devotees submit themselves to such 'Gurus' unconditionally and obey their dictates like an obedient child. An offence committed by person pretending himself a pious/spiritual person is more serious than a impious person, particularly when commission of such an offence shakes the trust of society at large. Breach of faith by a person of higher status has deep hurting impact on society. Higher the faith deposed by the society higher the responsibility to keep it.
::: Downloaded on - 06/11/2018 22:55:26 :::HCHP 1511. A petition preferred by the petitioner before the learned Sessions Judge has been rejected on 6.10.2018.
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There is no changed circumstances thereafter, nor there is any material infirmity or perversity in the order passed by him, so as to hold the said order a wrong order. Plea extended on behalf of petitioner that learned Sessions Judge has acted like a social reference is out of context.
Otherwise, also Courts have to be sensitive to legitimate social sentiments and must respond taking into larger interest of society.
12. Further, during investigation on verification, details of his permanent address, given by the petitioner, was not found to be correct and there is no permanent address of the petitioner available on record so as to establish his roots in the society to ensure his presence during the trial. Nothing concrete has been brought to the notice of the Court from the material on record or otherwise causing the prosecutrix to implicate the petitioner falsely in the present case. It is true that during trial, imprisonment cannot be used as substitute to the ::: Downloaded on - 06/11/2018 22:55:26 :::HCHP 15 punishment without scrutiny of the evidence by the trial Court, but at the same time, in a case where a lady has .
been exploited by taking undue advantage of fiduciary relationship resulting into breach of faith of the society at large, as discussed above, grant of bail to the petitioner at this stage may also have an adverse impact on the society.
The petitioner has a right to liberty under Article 21 of the Constitution of India, but balance has to be maintained between the personal and societal interest.
13. In view of above, considering cumulative effect of entire facts and circumstances, without commenting upon the merits of the evidence and keeping in view the principles laid down by the apex Court and other factors, like nature of offence, manner in which it has been committed and its impact on the society, petitioner is not entitled for bail, at this stage.
Hence, the petition is dismissed.
(Vivek Singh Thakur) Judge October 31, 2018 (rishi/tm) ::: Downloaded on - 06/11/2018 22:55:26 :::HCHP