Himachal Pradesh High Court
__________________________________________________________ vs State Of Himachal Pradesh on 6 September, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr. MP(M) No. 1670 of 2019
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Date of Decision: 6.9.2019
__________________________________________________________
Sachin ........ Petitioner
Versus
State of Himachal Pradesh .....Respondent.
__________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioner: Mr. P.M.Negi & Mr. Ranvir Chauhan,
Advocates.
For the Respondent: Mr. Sudhir Bhatnagar & Mr. Sanjeev
Sood, Additional Advocate Generals,
with Mr. Kunal Thakur, Deputy
Advocate General.
__________________________________________________________
Sandeep Sharma, Judge (oral):
Sequel to order dated 3.9.2019, whereby bail petitioner was ordered to be enlarged on interim bail in the event of his arrest in case FIR No.49/2019, dated 30.8.2019 under Sections 376 and 506 of IPC, registered at police Station, Nankhari, District Shimla, Himachal Pradesh, SI/SHO Om Prakash, has come present in Court alongwith the record. Mr. Sudhir Bhatnagar, learned Additional Advocate General, has also placed on record status report prepared on 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 03:56:56 :::HCHP 2the basis of the investigation carried out by the Investigating Agency. Record perused and returned.
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2. Record made available to this Court reveals that on 3.8.2019 complainant/prosecutrix (name withheld to protect her identity) lodged a complaint at police Station, Nankhari, District Shimla, H.P., stating therein that bail petitioner was in her contact for the last one year through facebook. She also alleged that bail petitioner used to talk with her on a phone as well as on facebook, however in the month of April, 2018 he called her at Nankhari and thereafter took her to nearby forest in his car bearing registration No. HP63 A 2684 and sexually assaulted her against her wishes.
Complainant/ prosecutrix alleged that bail petitioner used to take money from her on credit basis and as of today, he owes a sum of Rs. Two lac to her. She also levelled allegation against the bail petitioner that she also gave her gold ornaments to him. Allegedly when complainant/prosecutrix asked for refund of money as well as ornaments, bail petitioner snatched her mobile phone and deleted all the messages /chats as well as her contact. In the aforesaid background, prosecutrix sought appropriate action, in accordance with law, ::: Downloaded on - 29/09/2019 03:56:56 :::HCHP 3 against the bail petitioner. On the basis of aforesaid complaint, FIR, as mentioned hereinabove, came to be lodged .
against the present bail petitioner.
3. Mr. Sudhir Bhatnagar, learned Additional Advocate General on the instructions of the Investigating Officer, while fairly acknowledging the factum with regard to joining of investigation by the bail petitioner pursuant to order dated 3.9.2019, contended that though petitioner has presented himself for investigation, but he is not cooperating.
Mr. Bhatnagar, learned Additional Advocate General stated that till date petitioner has not given the recovery of money and ornaments allegedly taken by him from the prosecutrix and as such, prayer for grant of bail at this stage, may not be considered. Learned Additional Advocate General further contended that keeping in view the gravity of offence alleged to have been committed by the bail petitioner, he does not deserve any leniency.
4. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that as per own statement of the prosecutrix, she was known to the bail petitioner for the last one year prior to ::: Downloaded on - 29/09/2019 03:56:56 :::HCHP 4 lodging of the FIR. She has categorically stated that she was in constant touch with the bail petitioner and they used to .
chat and talk over the phone as well as on facebook. It also emerge from the material available on record that during aforesaid period prosecutrix and bail petitioner had developed intimate relationship. Interestingly, alleged incident happened on 18.4.2018, when allegedly bail petitioner sexually assaulted the prosecutrix against her wishes, but there is no explanation that why complainant/prosecutrix failed to lodge the complaint, if any, for almost five months. Prosecutrix is a married lady and as such, it cannot be said that she was not capable for understanding the consequences of her being in the company of the bail petitioner, rather close scrutiny of the material available on record suggests that she of her own volition and without there being any external pressure chose to be in the company of the bail petitioner. Though, prosecutrix has alleged that she also advanced a sum of Rs. 2 lac as well as gold ornaments to the bail petitioner on different occasions, but such allegation is yet to be proved, in accordance with law.
::: Downloaded on - 29/09/2019 03:56:56 :::HCHP 55. 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 taken note of aforesaid glaring aspect of the matter, this Court sees no reason for the custodial interrogation of the bail petitioner, who has otherwise joined the investigation in terms of order dated 3.9.2019 passed by this Court.
6. It has been repeatedly held by Hon'ble Apex Court as well as this Court in catena of cases that one is deemed to be innocent till the time his /her guilt is not proved, in accordance with law. Since, in the case at hand, the guilt, if any, of the bail petitioner is yet to be proved, in accordance with law, his freedom cannot be curtailed for indefinite period, during the trial.
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 ::: Downloaded on - 29/09/2019 03:56:56 :::HCHP 6 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 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.
::: Downloaded on - 29/09/2019 03:56:56 :::HCHP 73. 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 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.
::: Downloaded on - 29/09/2019 03:56:56 :::HCHP 85. 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 ReInhuman Conditions in 1382 Prisons
8. 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 ::: Downloaded on - 29/09/2019 03:56:56 :::HCHP 9 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.
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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."
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 Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC ::: Downloaded on - 29/09/2019 03:56:56 :::HCHP 10 496, has laid down the following principles to be kept in mind, while deciding petition for bail:
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(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.
11. Consequently, in view of the above, order dated 3.9.2019 passed by this Court is made absolute, subject to his furnishing personal bond in the sum of Rs. 50,000/ with one surety in the like amount to the satisfaction of the Investigating Officer, 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 - 29/09/2019 03:56:56 :::HCHP 11c. 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.
12. 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.
13. 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 6th September, 2019 (shankar) ::: Downloaded on - 29/09/2019 03:56:56 :::HCHP