Himachal Pradesh High Court
Abhinay Singh Chandan vs State Of Himachal Pradesh on 17 April, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.275 of 2018
Decided on: 17.4.2018
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Abhinay Singh Chandan ...........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 : M/s Ajay Kochhar, Vivek Sharma and
Avni Kochhar, Advocates.
For the Respondent : Mr. Dinesh Thakur, Additional Advocate
General and Mr. Vikrant Chandel,
Deputy Advocate General.
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Sandeep Sharma, Judge (oral):
Bail petitioner namely Abhay Singh Chandan, who is behind the bars since 3.2.2018, has approached this Court in the instant proceedings, filed under Section 439 of Cr.PC, praying therein for grant of regular bail in case FIR No. 20/18 dated 2.2.2018, under Sections 376, 452, 342 and 323 of IPC, registered at PS Palampur, Kangra, HP.
2. Sequel to order dated 20.3.2018, passed by this Court, SI Om Parkash Thakur, Additional SHO, P.S. Palampur, H.P., has come present in Court alongwith record of the case. Record perused and returned. Mr. Dinesh Thakur, learned Additional Advocate General, has also placed on 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 18/04/2018 23:45:20 :::HCHP 2record status report prepared on the basis of the investigation carried out by the investigating agency.
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3. Close scrutiny of the record/status report reveals that on 2.2.2018, complainant (herein-after referred to as the prosecutrix), lodged a complaint at P.S. Palampur, alleging therein that one and half years back, she had friendship with the present bail petitioner, who used to study in his class at CSKHPKV. Since certain differences cropped up between the prosecutrix and the bail petitioner, they stopped talking to each other. Allegedly, on 1.2.2018, when parents of prosecutrix had gone to their village and complainant and her sister were alone in the house at Palampur, at 7:00 pm, bail petitioner unauthorisedly entered into their house and started hurling abuses at them. Sister of prosecutrix objected to the aforesaid behavior of the bail petitioner but bail petitioner after having given beatings to her sent her to another room and bolted the room of prosecutrix from inside. Allegedly, bail petitioner sexually assaulted the prosecutrix against her wishes and while leaving her room extended threats. On the next date, when her parents came back to their house, prosecutrix narrated the entire incident to them, whereafter complaint came to be lodged against the bail petitioner. On the basis of aforesaid complaint, formal FIR referred herein above, came to be ::: Downloaded on - 18/04/2018 23:45:20 :::HCHP 3 registered against the bail petitioner. Police arrested the present bail petitioner on 3.2.2018, whereafter he is behind the bars.
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4. Mr. Ajay Kochhar, Advocate, representing the bail petitioner while referring to the status report/record, vehemently contended that no case, if any, is made out against the bail petitioner under Section 376, because it clearly emerges from the record that prosecutrix had been meeting the bail petitioner for almost 1½ years and during this period, they had developed physical relations. To substantiate his aforesaid argument, Mr. Kochhar invited attention of this Court to the MLC adduced on record by the prosecution to demonstrate that as per own version given by the prosecutrix to doctor, she had sexual intercourse with the bail petitioner 8 to 10 times, prior to the alleged incident. Mr. Kochhar also showed some photographs to this Court suggestive of the fact that prosecutrix and bail petitioner had intimate relationship and they were close to each other.
Mr. Kochhar, further contended that otherwise also story put forth by the prosecutrix, does not appear to be trustworthy because it is not understood that when her sister was present in the house at the time of the alleged incident, why no hue and cry was raised by her, especially when prior to alleged incident, bail petitioner had not only given beatings to her, rather had extended threats to both the sisters present in the house. Learned counsel representing the bail petitioner further ::: Downloaded on - 18/04/2018 23:45:20 :::HCHP 4 contended that investigation in the case is complete and nothing is required to be recovered from the bail petitioner at this stage and as .
such, no fruitful purpose would be served, in case bail petitioner, who is a young boy, is kept behind the bars for an indefinite period. He further stated that bail petitioner is a local resident of the area, who shall always remain available for investigation and trial as and when required and as such, his prayer for grant of bail may be considered.
5. Mr. Dinesh Thakur, learned Additional Advocate General, on the instructions of the Investigating Officer, who is present in Court, while fairly admitting that investigation in the case is complete and nothing is required to be recovered from the bail petitioner, opposed the aforesaid prayer for grant of bail and contended that keeping in view the gravity of offence allegedly committed by the bail petitioner, he does not deserve to be enlarged on bail. He further contended that true it is that prosecutrix while narrating the incident to the doctor, who examined her, stated that she also had sexual intercourse 8 to 10 times with the bail petitioner prior to the alleged incident, but that may not be sufficient to conclude that bail petitioner has not committed offence punishable under Section 376 of IPC. He further contended that admittedly, on 1.2.2018, bail petitioner sexually assaulted the prosecutrix against her wishes and as such, he is liable to be punished for that. Learned ::: Downloaded on - 18/04/2018 23:45:20 :::HCHP 5 Additional Advocate General further contended that since bail petitioner had extended threats to both the sisters, there was no occasion for the .
younger sister to raise hue and cry. Lastly, Mr. Thakur, contended that in the event of petitioner's being enlarged on bail at this stage, there is every possibility of his influencing the witnesses and tempering with the record and as such, this petition may be dismissed.
6. Having heard learned counsel for the parties and gone through the record, this Court is persuaded to agree with the contention of Mr. Ajay Kochhar, Advocate, representing the petitioner that bail petitioner and prosecutrix were closely known to each other for a considerable time and they had developed intimate relationship.
Though, there is no specific mention with regard to the physical relationship, if any, developed by the prosecutrix prior to the alleged incident in the status report/record, but MLC adduced on record certainly suggests that prosecutrix had sexual intercourse with the bail petitioner 8 to 10 times prior to the alleged incident and as such, it can be safely inferred that both were not only friends, rather they had developed intimate relations with each other.
7. This Court further finds force in the argument of Mr. Kochhar, that when her younger sister was allegedly given beatings and bail petitioner had bolted the room from inside, what prevented younger sister ::: Downloaded on - 18/04/2018 23:45:20 :::HCHP 6 from raising hue and cry. As per own version of prosecutrix, her younger sister was sent out of room after giving beatings, meaning thereby, she .
had enough time to raise hue and cry to save her sister from the clutches of bail petitioner.
8. Though aforesaid aspects of the matter are to be considered and decided by the court below on the basis of evidence, if any, collected on record by the prosecution, but at this stage, this Court having perused the record, sees no reason to let the bail petitioner incarcerate in jail for an indefinite period, especially when Investigation in the case is complete and nothing is required to be recovered from him.
9. As far as another apprehension expressed by learned Additional Advocate General with regard to petitioner's absconding from trial and tempering with the evidence, in the event of his being enlarged on bail is concerned, same can be met by putting him to stringent conditions, as has been fairly stated by learned counsel representing the bail petitioner. Learned counsel for the petitioner stated that otherwise also, in the event of petitioner's jumping the conditions of bail, Investigating Agency is always at liberty to approach this Court for cancellation of his bail.
10. Otherwise also, this Court cannot lose sight of the fact that guilt, if any, of the bail petitioner is yet to be proved in accordance with ::: Downloaded on - 18/04/2018 23:45:20 :::HCHP 7 law and as such, his freedom cannot be ordered to be curtailed for an indefinite period. 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 freedom of an individual is of utmost importance and same cannot be curtailed for an indefinite period.
Hon'ble Apex Court has further held that till the time guilt of the accused is not proved in accordance with law, he is deemed to be innocent. 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. 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 ::: Downloaded on - 18/04/2018 23:45:20 :::HCHP 8 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."
11. By now it is well settled that gravity alone cannot be 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. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; wherein it has been 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 ::: Downloaded on - 18/04/2018 23:45:20 :::HCHP 9 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 bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson."
12. 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.
13. Law with regard to grant of bail is now well settled. The apex Court in Siddharam Satlingappa Mhetre versus State of Maharashtra and others, (2011) 1 SCC 694, while relying upon its decision rendered by its Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565, laid down the following parameters for grant of bail:-
"111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of ::: Downloaded on - 18/04/2018 23:45:20 :::HCHP 10 the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative .
intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour.
112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to r whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood to repeat similar or the other offences.
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of ::: Downloaded on - 18/04/2018 23:45:20 :::HCHP 11 harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of .
tampering of the witness or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
(Emphasis supplied)
14. The Apex Court in Prasanta Kumar Sarkar versus 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;
(vi) likelihood of the offence being repeated;
(viii) reasonable apprehension of the witnesses being influenced; and
(ix) danger, of course, of justice being thwarted by grant of bail.
15. 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/- with one local surety in the like amount to ::: Downloaded on - 18/04/2018 23:45:20 :::HCHP 12 the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions:
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(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.
16. It is clarified that if the petitioner misuses the liberty or violate any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.
17. 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.
17th April, 2018 (Sandeep Sharma),
manjit Judge
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