Himachal Pradesh High Court
__________________________________________________________ vs State Of Himachal Pradesh on 26 June, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr. MP(M) No.1088 of 2019
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Date of Decision: 26th June, 2019
__________________________________________________________
Rajesh Singh ........ Petitioner
Versus
State of Himachal Pradesh .....Respondent.
__________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the petitioner: Mr. Naresh Kumar Tomar, Advocate.
For the respondent: Mr. Sudhir Bhatnagar & Mr. Sanjeev
Sood, Additional Advocate Generals.
__________________________________________________________
Sandeep Sharma, Judge (oral):
Bail petitioner namely, Rajesh Singh, who is behind the bars since 2.4.2019, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No.24 of 2019, dated 31.3.2019, under Sections 363, 376, 506 120B of IPC read with Sections 4 & 6 of POCSO Act, registered at police Station, Janjehli, District Mandi, Himachal Pradesh.
1Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 28/09/2019 23:59:15 :::HCHP 22. Sequel to order dated 14.6.2019, ASI Mohan Joshi has come present alongwith the record. Mr. Sanjeev Sood, .
learned Additional Advocate General, has also placed on record status report, prepared on the basis of the investigation carried out by the Investigating Agency. Record perused and returned.
3. Close scrutiny of the record/status report, reveals that on 31st March, 2019, complainant Som Krishan got his statement recorded under Section 154 Cr.P.C at police Station, Janjehli, District Mandi, H.P., alleging therein that her minor daughter, who was studying in class 10+1 at Government Senior Secondary School, Chhatri, had gone to collect her result, but till date has not returned. Complainant further alleged that lateron it has transpired that her minor daughter alongwith other girl, who is daughter of Sh. Krishan Lal VPO Chhatri, have been kidnapped by three boys, who had come in red car bearing registration No. HP882894. Subsequently, minor daughter of complainant alongwith other girl came to be recovered from the car bearing registration No. HP882894 at place Magrugalla, whereafter police got their statements ::: Downloaded on - 28/09/2019 23:59:15 :::HCHP 3 recorded under Section 164 Cr.P.C in the Court of learned Judicial Magistrate, 1st Class, Gohar, District Mandi, H.P. On .
the basis of aforesaid complaint having been filed by the complainant, FIR, as detailed hereinabove, came to be lodged against the present bail petitioner as well as other coaccused namely, Bhupinder Kumar, Rajinder Singh and Rajesh Kumar and since 2.4.2019 they all are behind the bars.
4. Mr. Naresh Kumar Tomar, learned counsel representing the petitioner, vehemently argued that bare perusal of the statements having been made by both the prosecutrix, nowhere suggests that present bail petitioner sexually assaulted the prosecutrix on the date of alleged incident, rather their statements made under Section 164 Cr.P.C, clearly reveal that they were allegedly abducted/kidnapped by other coaccused, who subsequently sexually assaulted them against their wishes. Lastly, Mr. Tomar, contended that present bail petitioner has been falsely implicated and as such, he deserve to be enlarged on bail.
5. Mr. Sanjeev Sood, learned Additional Advocate General while fairly admitting the factum with regard to ::: Downloaded on - 28/09/2019 23:59:15 :::HCHP 4 completion of the investigation, contended that it has specifically come in the evidence that alongwith accused .
Bhupinder Kumar, two more persons were present in the car when both the prosecutrix were abducted/kidnapped. Mr. Sood, further contended that it has come in the investigation that present bail petitioner helped other coaccused Bhupinder Kumar and Rajinder Singh for the commission of offence punishable under Section 376 IPC and as such, it cannot be said that present bail petitioner has been falsely implicated in the case. Though, Mr. Sood, fairly stated that though investigation reveals that present bail petitioner has not committed the offence, if any, under Section 376 IPC against both the prosecutrix, but there is ample evidence that he helped other coaccused in the commission of offence punishable under Section 376 IPC. Lastly, Mr. Sood, contended that keeping in view the gravity of offence alleged to have been committed by the bail petitioner and other co accused, prayer made on his behalf may not be accepted because in the event of petitioner's being enlarged on bail, there is possibility of his tampering with the evidence.
::: Downloaded on - 28/09/2019 23:59:15 :::HCHP 56. Having heard learned counsel representing the parties and perused the material available on record, .
especially statements having been made by both the prosecutrix under Section 164 Cr.P.C, this Court finds force in the arguments of learned counsel representing the petitioner that it is not the bail petitioner, who sexually assaulted both the prosecutrix against their wishes. Though, in the case at hand it has been stated by the investigating agency in the status report that present bail petitioner was also present on the spot and he helped coaccused Rajinder Kumar committing offence against the prosecutrix under Section 376 IPC, but careful perusal of the statements having been made by both the prosecutrix under Section 164 Cr.P.C, nowhere reveal that at the time of alleged commission of offence by the other co accused, present bail petitioner was present. Even, if the case as projected by the prosecution is presumed to be correct that on the date of alleged incident present bail petitioner was also present on the spot, but even then statements having been made by both the prosecutrix, nowhere suggest that present bail petitioner helped other coaccused Bhupinder Kumar and ::: Downloaded on - 28/09/2019 23:59:15 :::HCHP 6 Rajinder SIngh committing offence punishable under Section 376 IPC. Statements of the prosecutrix made under Section .
164 Cr.P.C clearly reveal that they were sexually assaulted against their wishes by another coaccused namely, Bhupinder Kumar and Rajinder Singh and there is no mention that present bail petitioner caught hold of the prosecutrix while she was being subjected to forcible sexual assault by the co accused. No doubt, record reveals that both the prosecutrix were minor at the time of alleged incident, but having seen their conduct, which is reflected from their statements made by them under Section 164 Cr.P.C, it cannot be said that they were not capable of understanding the consequences of their being in the company of accused. Moreover, it clearly emerge from their statements that they of their own volition had joined the company of the accused.
7. Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court on the basis of totality of evidence to be collected on record by the prosecution, but having perused the aforesaid glaring aspect of the matter, this Court sees no reason to keep him behind ::: Downloaded on - 28/09/2019 23:59:15 :::HCHP 7 the bars for an indefinite period, especially, when the challan stands filed in the competent Court of law.
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8. Hon'ble Apex Court as well as this Court in catena of cases have held that freedom of an individual cannot be curtailed for indefinite period during the pendency of the trial because one is deemed to be innocent until his/her guilt, is not proved in accordance with law. In the case at hand, guilt, if any, of the bail petitioner is yet to be proved in accordance with law by leading cogent and convincing evidence.
9. 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 ::: Downloaded on - 28/09/2019 23:59:16 :::HCHP 8 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 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.
::: Downloaded on - 28/09/2019 23:59:16 :::HCHP 9Yet, 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.
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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 firsttime 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 ::: Downloaded on - 28/09/2019 23:59:16 :::HCHP 10 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 ReInhuman Conditions in 1382 Prisons
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 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 ::: Downloaded on - 28/09/2019 23:59:16 :::HCHP 11 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. 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.
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:
::: Downloaded on - 28/09/2019 23:59:16 :::HCHP 12(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
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(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, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing personal bond in the sum of Rs.
1,00,000/ (Rs. One lakh) with one surety in the like amount to the satisfaction of the learned 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;::: Downloaded on - 28/09/2019 23:59:16 :::HCHP 13
c. He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade 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.
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.
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 bail petition stands disposed of accordingly.
Copy dasti.
(Sandeep Sharma), Judge 26th June, 2019 (shankar) ::: Downloaded on - 28/09/2019 23:59:16 :::HCHP