Himachal Pradesh High Court
Ishwar Dass vs State Of Himachal Pradesh on 8 September, 2020
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
Cr.MP(M) No. 1500 of 2020
Date of decision: September 08, 2020.
Ishwar Dass ......Petitioner.
Versus
State of Himachal Pradesh .....Respondent.
Coram
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting? 1
For the petitioner : Mr. Ajay Sharma, Senior Advocate
with Mr. Ajay Thakur, Advocate.
For the respondent : Mr. Anil Jaswal, Addl. AG with Mr.
Manoj Bagga, Asstt. AG.
Jyotsna Rewal Dua, Judge (Oral)
Petitioner, aged around 73 years, is accused of offences under Section 354 of Indian Penal Code and Section 10 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred as 'POCSO Act') in FIR No. 163 of 2020 dated 29.7.2020 registered at Police Station, Bhoranj, District Hamirpur, H.P. He was arrested on 29.7.2020 and is praying for release on bail by means of instant petition. 1 Whether the reporters of the local papers may be allowed to see the Judgment?
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2. Heard learned Counsel for the parties and gone through the status report as well as the documents placed on .
record by the respondent-State.
3. Case against the petitioner has been registered on the basis of statement of one Sandeep Kumar recorded under Section 154 Cr.P.C. The gist of his statement was that on 29.7.2020, his wife and minor daughter (child victim) aged also proceeded to the fields.
around ten years had gone to work in fields while he had had gone to Jahoo. On return to his village at around 4:00 P.M., he On the way, he noticed his daughter pulling up her salwar and petitioner standing along side her zipping up his trouser. Both were standing in a bath room near a well. On his inquiring into the matter, the bail petitioner ran away from the spot pleading for forgiveness. On the basis of this statement, the FIR was registered and petitioner was arrested.
4. During investigation the statement of child victim was recorded on 30.7.2020 under Section 164 Cr.P.C. Her MLC was also obtained on 30.7.2020.
5. A previous bail application moved by the petitioner was rejected by learned Special Judge, Hamirpur on the ground that offence alleged against him is serious in nature involving sexual assault upon a minor child.
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6. Learned Senior Counsel for the petitioner pleaded innocence and false implication of the petitioner. He further .
stated that complainant has enmity with the petitioner, which developed between the two on account of a deal for sale- purchase of a buffalo belonging to the petitioner. In the deal, the buffalo was agreed to be sold for a sum of `32,000/- through complainant acting as a middle man. However, the petitioner purchaser without r to had received the entire sale amount of `32,000/- directly from the paying any commission complainant, resultantly the FIR in question has been forced to the upon him. Learned Senior Counsel has also referred to the statement of the child victim recorded under Section 164 of Cr.P.C. as well as her MLC in support of his submissions praying for enlargement of petitioner on bail in the facts and circumstances of the case. Whereas learned Additional Advocate General has opposed the grant of bail considering the gravity of the offence alleged against him in the FIR. 7(i) After considering plethora of previous judgments with respect to parameters for grant of bail, Hon'ble Apex Court in 2019(14) Scale 157 , titled Shri P. Chidambaram vs. Central Bureau of Investigatio n, held as under:
"22. The jurisdiction to grant bail has to be exercised on the basis of the well-settled principles having regard to the facts and circumstances of each case. The following factors are to be taken into consideration while considering an application for bail:- (i) the nature ::: Downloaded on - 08/09/2020 20:20:44 :::HCHP 4 of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the .
prosecution; (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations (vide Prahlad Singh Bhati v. NCT, Delhi and another (2001) 4 SCC 280). There is no hard and fast rule regarding grant or refusal to grant bail. Each case has to be considered on the facts and circumstances of each case and on its own merits. The discretion of the court has to be exercised judiciously and not in an arbitrary manner......
23. In Kalyan Chandra Sarkar v. Rajesh Ranjan and another (2004)
7 SCC 528, it was held as under:-
"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non- application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.::: Downloaded on - 08/09/2020 20:20:44 :::HCHP 5
(c) Prima facie satisfaction of the court in support of the charge.
(See Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598 and Puran v. Rambilas (2001) 6 SCC 338).
.
Referring to the factors to be taken into consideration for grant of bail, in Jayendra Saraswathi Swamigal v. State of Tamil Nadu (2005) 2 SCC 13, it was held as under:-
"16. .......The considerations which normally weigh with the court in granting bail in non-bailable offences have been explained by this Court in State v. Capt. Jagjit Singh, AIR 1962 SC 253 and Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118 and basically they are -- the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial;
reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case......"
24. After referring para (11) of Kalyan Chandra Sarkar, in State of U.P. through CBI v. Amarmani Tripathi (2005) 8 SCC 21, it was held as under:-
"18. It is well settled that the matters to be considered in an application for bail are (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 charge; (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 tampered with;
and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi (2001) 4 SCC 280 and Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118].::: Downloaded on - 08/09/2020 20:20:44 :::HCHP 6
While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the .
accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused........".
7(ii) It is seen from the status report that initially the FIR was registered under Section 354 IPC and Section 8 of POCSO r to Act. After investigation Section 8 was removed and Section 10 of POCSO was incorporated in the FIR. In this regard it will be relevant to refer to the MLC of the child victim, which inter-alia records:
"....Patient is giving no history of any touching to genitalia or any other part of body. No history of penetration by penis, insertion of fingers or object or any other body parts.
On Examinations: Head to toe no signs of any injury externally.
Vagina-No injury seen. No discharge, no sign of bleeding, no sign of force. On the basis of history and clinical examination there is no sign suggestive of physical and sexual assault."
The complainant had himself stated that his wife was also with the child victim working in the fields at the relevant time. The status report does not mention any hue and cry or alert sounded by anyone regarding the incident including by the mother of child victim.
The zimni reports made available by learned Additional Advocate General reveal that during investigation, one Shashi Kumar had stated that on 29.7.2020 (date of incident) ::: Downloaded on - 08/09/2020 20:20:44 :::HCHP 7 he was called by the complainant Sandeep that his (Sandeep's) 'Massi' had purchased a buffalo from the petitioner. Said Shashi .
Kumar had transported the buffalo belonging to the petitioner in his 'Trala'. Two women had also accompanied in the 'Trala'. In lieu of this transportation, he received `600/- as fare charges. He was accordingly handed over `32,000/- in lieu of sale of buffalo, which. he inturn handed over to one Rajesh-nephew of the petitioner on 29.7.2020.
It will not be appropriate to delve any further into the investigation and the statement at this stage lest it causes prejudice to the case of either party. However, in the backdrop of parameters laid out by Hon'ble Apex Court, considering the nature of the allegations, contents of the complaint, considering the manner of the commission of offence as projected, in my considered view no fruitful purpose will be served in continuing the petitioner, aged 73 years, behind the bar any further. Petitioner is permanent resident of village Paplah, P.O. Bhareri, Tehsil Bhoranj, District Hamirpur, H.P. and his presence can be ensured in the trial. No criminal background of the petitioner has been indicated in the status report. The investigation in the matter is stated to be almost complete.
In view of the above observations, the present petition is allowed. Petitioner is ordered to be released on bail on his furnishing personal bonds of Rs.50,000/- with one local ::: Downloaded on - 08/09/2020 20:20:45 :::HCHP 8 surety in the like amount to the satisfaction of learned trial Court having jurisdiction over the concerned Police Station, subject to .
the following conditions:
(i) The petitioner shall join the investigation of the case as and when called for by the Investigating Officer in accordance with law and shall cooperate with the Investigating Agency.
(ii) The petitioner shall not temper with the evidence or hamper the investigation in any manner whatsoever:
(iii) The petitioner shall not contact the complainant, threaten or browbeat him or to use any pressure tactics in any manner whatsoever.
(iv) The petitioner shall not leave India without prior permission of the Court.
(v) The petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or any Police Officer;
(vi) The petitioner shall inform the Station House Officer of the concerned Police Station about his place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioner shall furnish furnish details of his Aadhar Card, Telephone Number, E-
mail, PAN Card, Bank Account Number, if any. In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of the bail. It is made clear that observations made above are only for the purpose of ::: Downloaded on - 08/09/2020 20:20:45 :::HCHP 9 adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter.
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With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous applications, if any.
Copy of this judgment duly authenticated by the Secretary be supplied to learned counsel for the parties, if so requested.
r to (Jyotsna Rewal Dua),
Judge.
September 08, 2020,
( vs)
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