Himachal Pradesh High Court
Gauri Shankar vs State Of Himachal Pradesh on 9 September, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.1612 of 2019
Decided on: 9.9.2019
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Gauri Shankar ...........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. N.S. Chandel, Senior Advocate with
Mr. Vinod Kumar Gupta, Advocate.
For the Respondent : Mr. Sanjeev Sood, Additional Advocate
General, with Mr. Kunal Thakur, Deputy
r Advocate General, for the State.
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Sandeep Sharma, Judge (oral):
Bail petitioner, namely Gauri Shankar, who is behind bars since 29.5.2019, has approached this Court in the instant proceedings filed under Section 439 of Cr.PC, praying therein for grant of regular bail in connection with FIR No. 79/19, dated 29.5.2019, under Sections 8 & 12 of the POCSO Act, Section 67A of the IT Act, Section 3 (i) (S) W (i) (ii) of SC & ST (POA) Act and Sections 354 A & 506 IPC, registered at P.S. Barsar, District Hamirpur, H.P.
2. In terms of order dated 26.8.2019, SI Basant Singh, P.S. Barsar, District Hamirpur, H.P., has come present alongwith records. Mr. 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 03:59:34 :::HCHP 2Kunal 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.
3. Record/status report made available to this Court reveals that on 29.5.2019, complainant namely Piar Chand, who is father of the victim-prosecutrix (name withheld), lodged a complaint at PS Barsar, District Hamirpur, H.P., stating therein that Principal of Government Senior Secondary School, Barsar (bail petitioner), firstly provided one mobile phone to his minor daughter (victim-prosecutrix) and thereafter deposited Rs. 3000/- in her account. He alleged that his daughter disclosed to him that phones are being given to those children, who are meritorious, but thereafter, the bail petitioner started sending obscene messages to victim-prosecutrix. As per complainant, since his daughter was extended threats not to disclose anything to anybody, she under fear, could not disclose factum with regard to aforesaid conduct of the bail petitioner.
However, subsequently, his son discovered the obscene messages and videos in the phone given to his daughter by the bail petitioner. In the aforesaid background, complainant requested to initiate proceedings against the bail petitioner. After receipt of aforesaid complaint, police recorded statement of the complainant as well as victim-prosecutrix under Section 161 Cr.PC. Police also got the statement of victim-
::: Downloaded on - 29/09/2019 03:59:34 :::HCHP 3prosecutrix recorded under Section 164 Cr.PC, wherein she reiterated that phone in question was provided to her by the bail petitioner, who had .
also deposited sum of Rs. 3,000/- in her bank account. She also stated that on one occasion, she was taken for a ride by the bail petitioner, where he also tried to touch her hand. She stated that the bail petitioner had asked her not to disclose anything to anybody, failing which he will eliminate her.
On the basis of aforesaid statement having been made by the victim-
prosecutrix as well as the complainant, formal FIR came to be lodged against the bail petitioner under different provisions of law on 29.5.2019 and since then, he is behind bars.
4. Learned Deputy Advocate General, on the instructions of Investigating Officer, fairly stated that though investigation is complete and nothing remains to be recovered from the bail petitioner, but since report of FSL is still awaited qua the mobile phone, prayer having been made by the bail petitioner, may not be considered at this stage because in the event of the bail petitioner's being enlarged on bail, there is every likelihood of his tempering with the evidence. He further contended that keeping in view the gravity of the offense alleged to have been committed by the bail petitioner, he does not deserve any leniency and as such, present bail petition may be dismissed.
::: Downloaded on - 29/09/2019 03:59:34 :::HCHP 45. Having heard learned counsel for the parties and perused material available on record, this Court finds that as per own statement of .
victim-prosecutrix, she was provided mobile phone by the bail petitioner, who was admittedly Principal of the School concerned at that relevant time. Similarly, record reveals that sum of Rs. 3,000/- came to be deposited in three months in the saving bank account of the victim-
prosecutrix. As per initial statement of the complainant, his minor daughter (victim-prosecutrix) had disclosed her that she has been provided a phone on account of being meritorious student, but this Court cannot loose sight of the fact that sim-card, if any, in the phone in question was got provided to the victim-prosecutrix by her father only.
Similarly, statement of victim-prosecutrix reveals that factum with regard to sending of obscene messages/videos was very much in the knowledge of her elder sister and grandmother, but despite that there appears to be no effort made on behalf of the complainant or other family members to confront the bail petitioner. Though, report/status report reveals that some obscene messages and videos came to be forwarded in the phone allegedly used by the victim-prosecutrix, but factum with regard to sending of the same from the phone used by the bail petitioner is yet to be established. Though complainant has alleged that the bail petitioner ::: Downloaded on - 29/09/2019 03:59:34 :::HCHP 5 also behaved indecently by touching her hand, but such, allegation is still to be substantiated by way of cogent and convincing evidence.
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6. Similarly, this Court finds that at no point of time, complainant deemed it fit to lodge report, if any, with the school authority because in that eventually, matter would have been inquired by the Sexual Harassment Committee of the school. Since victim-prosecutrix hails from schedule casts community, bail petitioner has been also framed under Section 3 (i) (S) W (i) (ii) of the SC & ST (POA) Act. Since now nothing remains to be recovered from him, this Court sees no reason to curtail freedom of the bail petitioner, especially when guilt if any of him is yet to be proved in accordance with law. It is informed that the bail petitioner stands already suspended and at present, he is attached with the Directorate (Education) Shimla, and as such, apprehension expressed by the learned Deputy Advocate General can be best met by putting the bail petitioner to the stringent conditions.
7. 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 aspect of the matter, this Court, sees no reason to let the bail petitioner incarcerate in jail for an indefinite period, ::: Downloaded on - 29/09/2019 03:59:34 :::HCHP 6 especially when guilt, if any of him is yet to be proved in accordance with law.
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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 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 ::: Downloaded on - 29/09/2019 03:59:34 :::HCHP 7 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 - 29/09/2019 03:59:34 :::HCHP 8
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 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 ::: Downloaded on - 29/09/2019 03:59:34 :::HCHP 9 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."
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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."
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;::: Downloaded on - 29/09/2019 03:59:34 :::HCHP 10
(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;
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and
(viii) danger, of course, of justice being thwarted by grant of bail.
13. 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 two local sureties 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.
(e) He shall handover the passport to the investigating agency.
14. 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.
::: Downloaded on - 29/09/2019 03:59:34 :::HCHP 1115. 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.
Copy dasti.
9th September, 2019 (Sandeep Sharma),
manjit Judge
r to
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