Himachal Pradesh High Court
Irfan vs State Of Himachal Pradesh on 7 January, 2020
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.3 of 2020
Decided on: 07.1.2020
.
__________________________________________________________________
Irfan ...........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, Advocate.
For the Respondent : Mr. Sudhir Bhatnagar, Mr. Anil Jaswal
and Mr. Arvind Sharma, Additional
Advocate Generals, with Mr. Kunal
Thakur, Deputy Advocate General.
__________________________________________________________________
Sandeep Sharma, Judge (oral):
Bail petitioner, namely Irfan, who is behind bars since 28.12.2019, has approached this Court in the instant proceedings filed under Section 439 of Cr.PC, for grant of regular bail in connection with FIR No. 45/19 dated 28.12.2019 under Sections 363, 366 and 376 of IPC and Section 4 of POCSO Act, registered at P.S. Sangla, District Kinnaur, H.P.
2. In terms of order dated 2.1.2020, ASI Sohan Lal, has come present alongwith records. Mr. Kunal Thakur, learned Deputy Advocate General, has also placed on record status report prepared on the basis of investigation carried out by the Investigating Agency. Record perused and returned.
1Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 08/01/2020 20:25:59 :::HCHP 23. Record/status report made available to this Court reveals that on 28.12.2019, complainant Chandan Singh lodged a complaint at .
PS Sangla, District Kinnaru, H.P., alleging therein that his two minor daughters have gone missing and he has suspicion that some unknown persons have made them to elope with them and as such, appropriate action in accordance with law against them be taken. He also disclosed to the police that while he alongwith other family members was at Sangla in search of his minor daughters, his wife received telephonic call, whereupon his daughter (victim-prosecutrix) disclosed that at present, they are with their cousin Prem Kumar and shall return home shortly. Sine despite there being aforesaid telephonic call, minor daughters of the complainant did not reach their house, FIR referred herein above, came to be lodged against the present petitioner. On 27.12.2019, police after having seen recording of CCTV camera installed at Sangla Bazar, recovered the victim-prosecutrix and present bail petitioner, who at that relevant time were going towards Karcham/Tapri. Both the bail petitioner and victim-prosecutrix during their investigation revealed that on the intervening night of the 27/28.12.2019, they slept in the cabin of truck bearing HP 69A2528. Police after recording the statement of victim-
prosecutrix under Section 161 Cr.PC also got recorded the statement of her under Section 164 Cr.PC before the Judicial Magistrate Kinnaur at ::: Downloaded on - 08/01/2020 20:25:59 :::HCHP 3 Recongpeo, wherein she stated that she of her own volition joined the company of the bail petitioner, to whom she knew for quite considerable .
time. She also stated before CJM that nothing wrong has been done by the bail petitioner against her wishes. In the aforesaid background, FIR referred herein above came to be lodged against the present bail petitioner on 28.12.2019 and since then he is behind bars.
4. Mr. Kunal Thakur, learned Deputy Advocate General, on instructions while fairly admitting that investigation in the case is complete save and except verification of the address of the bail petitioner and nothing remains to be recovered from him, contended that keeping in view the gravity of offence alleged to have been committed by the bail petitioner, his application for grant of bail may be rejected. He further contended that though there is ample evidence available on record suggestive of the fact that bail petitioner taking undue advantage of innocence and minority of victim-prosecutrix not only made her to elope with him, but also sexually assaulted her against her wishes, but even otherwise, consent, if any, of victim-prosecutrix is immaterial being minor and as such, it would not be in the interest of justice to release the bail petitioner on bail at this stage.
5. Having heard learned counsel for the parties and perused material available on record, especially statement of victim-prosecutrix ::: Downloaded on - 08/01/2020 20:25:59 :::HCHP 4 recorded under Section 164 Cr.PC., this Court finds that she knew the bail petitioner for quite considerable time. It has specifically come in the .
statement of victim-prosecutrix that she and the bail petitioner wanted to solemnize marriage. If the statement of victim-prosecutrix is read in its entirety, it clearly reveals that victim-prosecutrix alongwith her sister of her own volition joined the company of the bail petitioner. It also emerges from the investigation that one younger sister and cousin brother of victim-
prosecutrix was with her, when she joined the company of the bail petitioner. As per own statement of victim-prosecutrix, they on the intervening night of 27/28.12.2019, slept in the cabin of a truck in question being driven by the bail petitioner. Though, younger sister of victim-
prosecutrix in her statement recorded under Section 164 Cr.PC has categorically denied factum with regard to sexual assault, if any, committed on the victim-prosecutrix by the bail petitioner, but even if version put forth by the victim-prosecutrix, wherein she has stated that nothing wrong has been done with her against her wishes, is taken in to consideration, there appears to be no evidence available at this stage suggestive of the fact that on the date of alleged incident, bail petitioner sexually assaulted the victim-prosecutrix against her wises. Moreover, story put forth by the prosecution that victim-prosecutrix was sexually assaulted against her wises in the cabin of truck appears to be highly doubtful , ::: Downloaded on - 08/01/2020 20:25:59 :::HCHP 5 especially in view of the statement of younger sister of victim-prosecutrix, who in her statement recorded under Section 164 Cr.PC has categorically .
stated that all four had slept in truck on the date of the alleged incident.
Leaving everything aside, victim-prosecutrix refused to undergo medical examination. No doubt, in the case at hand, age of victim-prosecutrix at the time of the alleged incident was less than 18 years, but as has been noticed herein above careful perusal of her statements given to police and Judicial Magistrate clearly suggests that she of her own volition had joined the company of the bail petitioner and there is no positive evidence, if any, with regard to sexual assault, if any, committed by the bail petitioner.
6. Though aforesaid aspects of the matter are to be considered and decided by the court below on the basis of totality of evidence collected on record by the Investigating Agency, but having noticed aforesaid glaring aspects of the matter, this Court, sees no reason to let the bail petitioner incarcerate in jail for an indefinite period. Leaving everything aside, guilt if any of the bail petitioner is yet to be established on record by the Investigating Agency by leading cogent and convincing evidence and as such, his freedom cannot be curtailed for an indefinite period. Apprehension expressed by the learned Additional Advocate General that in the event of his being enlarged on bail, he may flee from ::: Downloaded on - 08/01/2020 20:25:59 :::HCHP 6 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.
7. 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 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 ::: Downloaded on - 08/01/2020 20:25:59 :::HCHP 7 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 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.::: Downloaded on - 08/01/2020 20:25:59 :::HCHP 8
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 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 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 ::: Downloaded on - 08/01/2020 20:25:59 :::HCHP 9 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."
11. 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;::: Downloaded on - 08/01/2020 20:25:59 :::HCHP 10
(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.
.
12. In view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 1,00,000/- each with one local surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, 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/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.
13. It is clarified that if the petitioner misuses the 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.
14. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to ::: Downloaded on - 08/01/2020 20:25:59 :::HCHP 11 the disposal of this application alone. The petition stands accordingly disposed of.
.
Copy dasti.
7th January, 2020 (Sandeep Sharma),
manjit Judge
r to
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