Himachal Pradesh High Court
Ashok Aggarwal vs Central Bureau on 21 June, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 21ST DAY OF JUNE 2022 BEFORE HON'BLE MR. JUSTICE SANDEEP SHARMA .
CRIMINAL MISC. PETITION(MAIN) NO. 1319 OF 2022 Between:-
ASHOK AGGARWAL, AGE 60 YEARS, SON OF SH. SUMAT PRASAD, RESIDENT OF BEHAT ROAD, ROHINI GARDEN, SAHARANPUR, UTTAR PRADESH. (PRESENTLY IN CUSTODY) PETITIONER (BY MR. KARAN SINGH KANWAR, ADVOCATE) AND STATE OF HIMACHAL PRADESH RESPONDENT (BY MR. SUDHIR BHATNAGAR AND MR. NARINDER GULERIA, ADDITIONAL ADVOCATES GENERAL WITH MR. SUNNY DHATWALIA, ASSISTANT ADVOCATE GENERAL) Whether approved for reporting: Yes.
This petition coming on for orders this day, the court passed the following:
OR DER Bail petitioner namely Ashok Aggarwal, who is behind the bars since August/September, 2021, has approached this court in the instant proceedings filed under Section 439 CrPC, for grant of regular bail in case FIR No. 121 of 2021, dated 30.7.2021, under Ss. 377, 506 and 34 IPC and S.6 of Protection of Children from Sexual Offences Act, 2012 registered at Police Station Paonta Sahib, District Sirmaur, Himachal ::: Downloaded on - 21/06/2022 20:08:24 :::CIS 2 Pradesh. Respondent State has filed status report and the Investigating Officer has come present with record. Record perused and returned.
2. Close scrutiny of the status report/record made available to this .
court reveals that on 30.7.2021, Ram Lal, Member Child Help Line, Sirmaur, received information from the Child Helpline Nahan that a minor child aged 13 years has been sodomized by about 9 persons. Above named person visited the house of the victim, who was residing with his maternal grandmother at Paonta Sahib. During counseling, child victim disclosed that one month ago, persons namely Vicky, Ankur, Bajrangi alongwith other friends, who were doing Palledari work at Sabji Mandi, committed unnatural intercourse with him. On the basis of aforesaid complaint, FIR as detailed herein above came to be registered against the petitioner. Police, after having got the child victim examined at Dr. YSP Medical College, Nahan, also got recorded his statement under S. 164 CrPC, before Magistrate at Nahan, wherein he disclosed the names of all the persons, who had committed unnatural intercourse with him. He disclosed to the court that Anil Ankur, Bajrangi Shri Ram and Mohd. Jakir, whose name was recorded as Khada have committed sodomy with him.
He also disclosed that an old person, whose name was told as Mulla but his real name is Ashok Kumar alongwith person namely Bhuttoo, who is also known as Bhudu also committed unnatural intercourse with him. Child victim disclosed that first of all Anish committed intercourse with him and thereafter other persons, as named in the FIR, sodomized him. Since investigation in the case is complete and Challan stands filed in the competent court of law and child victim as well his father ::: Downloaded on - 21/06/2022 20:08:24 :::CIS 3 have resiled from their statements given to police, bail petitioner has approached this court in the instant proceedings, for grant of regular bail.
3. Mr. Karan Singh Kanwar, learned counsel representing bail .
petitioner, while making this court peruse the statements of child victim and his father recorded before learned trial Court, annexed with petition, vehemently argued that the bail petitioner has been falsely implicated as such he deserves to be enlarged on bail. He argued that though the child victim admitted factum with regard to his being sodomized on the date of alleged incident by some persons, but he categorically deposed that on account of darkness he (child victim) was unable to see anyone of them.
Apart from above, it has been argued on behalf of bail petitioner that the Challan stands filed in the competent court of law, coupled with the fact that the statements of victim and his father stand recorded and as such, no fruitful purpose would be served by keeping him in judicial custody for an indefinite period during trial especially when guilt if any of his is yet to be proved on record.
4. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly acknowledging the factum with regard to filing of challan in the competent court of law, submits that though nothing remains to be recovered from the bail petitioner but keeping in view gravity of offence alleged to have been committed by the bail petitioner, he does not deserve leniency and his prayer for bail deserves outright rejection. Learned Additional Advocate General, while fairly admitting the fact that the victim and his father have resiled from their statements given to police, while deposing before learned trial Court, contends that if the statements of ::: Downloaded on - 21/06/2022 20:08:24 :::CIS 4 these witnesses are read in entirety, they clearly reveal that on the date of alleged incident, victim was sodomized by nine persons and as such, it cannot be concluded that the bail petitioner has been falsely implicated. He .
submits that initially the child victim in his statement given to police disclosed the alleged factum with regard to offence committed upon him by the persons named in the FIR, meaning thereby that the child victim as well as his father have not stated true facts before the learned court below.
He submits that till the time entire prosecution evidence is concluded, it may be premature to conclude that the bail petitioner has been falsely implicated in the case.
5. Having heard learned counsel for the parties and perused the material available on record, this court finds that on 17.6.2022, this court having read statements made by child victim and his father, before learned trial Court directed learned Additional Advocate General to verify correctness of the same. Learned Additional Advocate General has verified the factum with regard to correctness of certified copies of statements of child victim and his father made before trial court, perusal whereof reveals that both the child victim and his father have not supported the prosecution case. Though, the child victim has admitted the factum with regard to his having reported the matter to the police with regard to sodomy committed upon him by nine persons, but he categorically deposed that he did not disclose any name to the police as the accused were not known to him. He stated that since it was dark at the time of alleged incident, he was unable to identify the accused.
::: Downloaded on - 21/06/2022 20:08:24 :::CIS 56. PW-1 i.e. child victim in his cross-examination, admitted that he was tutored by person namely Ram Lal to state names of the bail petitioner alongwith other co-accused. Similarly, father of child victim, PW-2 also .
stated that no person from child helpline came to meet him on 30.7.2021 nor enquired from his son. He also denied that the child victim disclosed names of persons, who allegedly committed sodomy with him.
7. Though the case registered against the bail petitioner shall be heard and decided by learned trial Court in the totality of evidence led on record by prosecution, but having taken note of the aforesaid depositions made on oath by child victim and his father before trial court, there appears to be no reason for this court to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when guilt if any of his is yet to be established on record.
8. No doubt, in statement under S.164 CrPC, child victim took names of the persons named in the FIR, but as has been taken note herein above, he categorically stated in his cross-examination that the person namely Ram Lal tutored him to take names of persons named in the FIR. True it is that the child victim and his father, nowhere disputed the factum with regard to the alleged incident but at the same time, this court cannot lose sight of the fact that child victim categorically deposed that he was unable to see the accused on account of darkness. Otherwise also, aforesaid statement made by child victim is totally contrary to statement of Ram Lal recorded under S.154 CrPC, wherein on the basis of information shared by the child victim, he disclosed names of accused to the police, who allegedly sodomized the child victim.
::: Downloaded on - 21/06/2022 20:08:24 :::CIS 69. Leaving everything aside, this court finds that the statements of the material prosecution witnesses i.e. child victim and his father stand recorded and as such, there is no force in the submission of learned .
Additional Advocate General that in the event of bail petitioner being enlarged on bail, he may not only flee from justice but may also tamper with the prosecution evidence. Majority of witnesses, which remain to be examined are official witnesses, who otherwise cannot be won over by the bail petitioners.
10. Hon'ble Apex Court and this Hon'ble Court in catena of cases have held that one is deemed to be innocent till the time, his/her guilt is proved in accordance with law, as such, it would be not in the interests of justice to curtail the freedom of the bail petitioners for an indefinite time during trial. Apprehension expressed by of learned Additional Advocate General that in the event of the bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions.
11. Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held that gravity alone cannot be a 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.
12. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the object of the bail is to secure ::: Downloaded on - 21/06/2022 20:08:24 :::CIS 7 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 .
also, normal rule is of bail and not jail. Apart from above, 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.
13. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced.
14. In view of above, bail petitioner has carved out a case for himself, as such, present petition is allowed. Bail petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs.50,000/- with one local surety in the like amount to the satisfaction of the learned trial Court, besides 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;::: Downloaded on - 21/06/2022 20:08:24 :::CIS 8
(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.
15. 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.
16. 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 petition alone. The petition stands accordingly disposed of.
Copy Dasti.
(Sandeep Sharma), Judge June 21, 2022 (vikrant) ::: Downloaded on - 21/06/2022 20:08:24 :::CIS