Himachal Pradesh High Court
Karan Manhas vs State Of Himachal Pradesh on 10 December, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.2211 of 2019
Decided on: 10.12.2019
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Karan Manhas ...........Petitioner
Versus
State of Himachal Pradesh ..........Respondent
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Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioner :
Mr. Suresh Kumar Thakur and Mr.
Hemant Kumar Thakur, Advocates.
For the Respondent : Mr. Anil Jaswal and Mr. Arvind Sharma,
Additional Advocate Generals, for the
State.
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Sandeep Sharma, Judge (oral):
Sequel to order dated 2.12.2019, whereby bail petitioner was ordered to be enlarged on bail in case FIR No. 174/2019 dated 8.11.2019, under Section 354, 366, 376, 504 , 506 and 511of IPC, ASI Man Singh, has come present along with records. Record perused and returned.
2. Mr. Anil Jaswal, learned Additional Advocate General, has also placed on record status report prepared on the basis of investigation carried out by the Investigating Agency. Learned Additional Advocate General, on the instructions of Investigating Officer, who is present in the Court, while admitting that petitioner has joined the investigation pursuant to order dated 2.12.2019, contended that keeping in view the gravity of offence alleged to have been committed by the bail petitioner, prayer 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 10/12/2019 21:04:03 :::HCHP 2made on behalf of the petitioner may be rejected outrightly. He while making this Court to peruse the record argued that the bail petitioner has .
sexually assaulted the victim-prosecutrix repeatedly against her wishes on the pretext of marriage and as such, it may not be in the interest of justice to enlarge him on bail because in the event of his being enlarged on bail, he may not only flee from justice, rather may make an attempt to cause harm to the victim-prosecutrix, whose statement is yet to be recorded before the Court below.
3. Having heard learned counsel for the parties and perused material available on record, this Court finds that victim-prosecutrix filed a complaint under Section 156(3) of CrPC before the JMIC Jawali, District Kangra, praying therein to take appropriate action against the bail petitioner, who allegedly sexually assaulted her against her wishes.
Victim-prosecutrix alleged before the JMIC that she knows the bail petitioner since her school time. She alleged that when she passed her 10+2 examination, bail petitioner proposed her for marriage, however such proposal could not be materialized because at that time, she was pursuing her studies. She alleged that on 4.3.2014, bail petitioner took her to Tehsil Nurpur and forcibly and fraudulently got executed the affidavit of marriage. She alleged that she did not know that on what papers her signatures were obtained by the bail petitioner in the presence of the ::: Downloaded on - 10/12/2019 21:04:03 :::HCHP 3 Advocate namely Ravi Puri. She alleged that she completed her post graduation from Regional Centre (Khaniara Mohli) Dharamshala in 2016 .
and even during this period, bail petitioner sexually assaulted her against her wishes. She alleged that on 7.4.2019, she was engaged to some other person, but the bail petitioner on coming to know the factum with regard to her engagement with some other person also started extending threats to her. Victim-prosecutrix alleged that on 29.4.2019, when her parents had gone to attend some marriage at Village Sidhpurghar and she was alone at her home, bail petitioner forcibly took her in a car towards Jonta Kotla. She alleged that she tried to raise hue and cry, but since her mouth was gagged, she was unable to escape from the clutches of the bail petitioner. Victim-prosecutrix alleged that on 29.4.2019, the bail petitioner took her to Barot and sexually assaulted her against her wishes. On 29.4.2019, parents of the complainant lodged a complaint with police, whereafter police recovered the victim-prosecutrix alongwith the bail petitioner from Barot on 30.4.2019. In the aforesaid background, FIR as referred herein above, came to be lodged against the present bail petitioner.
4. Having carefully perused material available on record, especially statement of victim-prosecutrix recorded under Section 164 Cr.PC in the court of learned JMIC Jawali, this court finds that victim-
::: Downloaded on - 10/12/2019 21:04:03 :::HCHP 4prosecutrix had prior acquaintance with the bail petitioner and she knew him since 2010. Though victim-prosecutrix has stated that since her school .
times, bail petitioner used to tease her, but her own statement reveals that she of her own volition joined the company of the bail petitioner on many occasions and thereafter, established physical relations. Though, there is no mention, if any, with regard to forcible sexual assault, if any, by the bail petitioner in the statement of victim-prosecutrix recorded under Section 164 Cr.PC, but compliant made to JMIC reveals that between 9.3.2014 till 29.4.2019, victim-prosecutrix met the bail petitioner on many occasions, and during this period, they also solemnized marriage. Record reveals that Investigating Agency also ascertained the correctness and genuineness of the affidavit of marriage executed by victim-prosecutrix and the bail petitioner at Nurpur in the presence of Advocate namely Ravi Puri. The above named advocate categorically stated before the police that affidavit of marriage was executed by the bail petitioner and the prosecutrix of their own volition and without there being external pressure. In the case at hand, though victim-prosecutrix has claimed that on 4.3.2014, bail petitioner forcibly took her to Tehsil Nurpur for getting the affidavit of marriage executed, but her own statement reveals that even after the aforesaid date, she kept on meeting the bail petitioner on number of occasions, even on 29.4.2019, victim-prosecutrix went to the ::: Downloaded on - 10/12/2019 21:04:03 :::HCHP 5 road to join the company of the bail petitioner, who thereafter allegedly took her to Barot, District Mandi. Record clearly reveals that it is only after .
the lodging of the police complaint by the parents of the victim-
prosecutrix; she along with bail petitioner came to be recovered from place called Barot. Photographs available on record clearly reveal factum with regard to marriage inter-se victim-prosecutrix and bail petitioner. Victim-prosecutrix is 26 years old and as such, it cannot be said that she was incapable of understanding the consequence of her being in the company of the bail petitioner, to whom she otherwise knew for more than 8 years.
5. Leaving everything aside, there is no plausible explanation rendered on record by the victim-prosecutrix qua the delay in lodging the FIR. If the version put forth by the victim-prosecutrix is accepted that on 4.3.2014, she was forcibly made to execute the affidavit of marriage, it is not understood that what prevented her from lodging a report in the police at that juncture.
6. Though aforesaid aspects of the matter are to be considered and decided by the court below in the totality of evidence collected on record by the Investigating Agency, but having taken note of the aforesaid aspects of the matter, these Court sees no reason for custodial interrogation of the bail petitioner, who otherwise has made ::: Downloaded on - 10/12/2019 21:04:03 :::HCHP 6 himself available for investigation. Guilt, if any, of the bail petitioner is yet to be proved in accordance with law by leading cogent and convincing.
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7. By now it is well settled that gravity alone cannot be decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon'ble Apex Court that 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.
8. 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 has 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 ::: Downloaded on - 10/12/2019 21:04:03 :::HCHP 7 consider in an appropriate case. The relevant paras of the aforesaid judgment are reproduced as under:
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"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 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 ::: Downloaded on - 10/12/2019 21:04:03 :::HCHP 8 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.
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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.
9. 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.
10. 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 ::: Downloaded on - 10/12/2019 21:04:03 :::HCHP 9 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."
11. 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 - 10/12/2019 21:04:03 :::HCHP 10
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.
13. Consequently, in view of the above, order dated 2.12.2019 passed by this Court, is made absolute, subject to applicant's furnishing personal bonds in the sum of Rs. 1,00,000/- with one surety in the like amount to the satisfaction of the Arresting officer with the 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/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) The bail petitioner shall also handover the passport to the Investigating Agency.::: Downloaded on - 10/12/2019 21:04:03 :::HCHP 11
14. It is clarified that if the petitioner misuses the liberty or violate any of the conditions imposed upon him, the investigating agency shall .
be free to move this Court for cancellation of the bail.
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. The petition stands accordingly disposed of.
Authenticated copy.
10th December, 2019 (Sandeep Sharma),
manjit
r Judge
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