Himachal Pradesh High Court
__________________________________________________________ vs State Of Himachal Pradesh on 21 November, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr. MP(M) No2077 of 2019
.
Date of Decision: 21st November, 2019
__________________________________________________________
Bhupender Kumar ........ Petitioner
Versus
State of Himachal Pradesh .....Respondent.
__________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the petitioner:
r Mr. Prashant Chaudhary, Advocate.
For the respondent: Mr. Sudhir Bhatnagar & Mr. Sumesh
Raj, Additional Advocate Generals,
with Mr. Kunal Thakur, Deputy
Advocate General.
__________________________________________________________
Sandeep Sharma, Judge (oral):
Bail petitioner namely, Bhupender Kumar, who is behind the bars since 2.4.2019, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No.24 of 2019, dated 31.3.2019, under Sections 363, 376, 506 120B of IPC read with Sections 4 & 6 of POCSO Act, registered at police Station, Janjehli, District Mandi, Himachal Pradesh.
1Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 22/11/2019 20:24:23 :::HCHP 22. Sequel to order dated 15.11.2019, ASI Mohan Joshi has come present alongwith the record. Mr. Kunal Thakur, .
learned Deputy Advocate General, has also placed on record fresh status report, prepared on the basis of the investigation carried out by the Investigating Agency. Record perused and returned.
3. Close scrutiny of the record/status report, reveals that on 31st March, 2019, complainant namely, Sh. Som Krishan got his statement recorded under Section 154 Cr.P.C., alleging therein that her minor daughter (first victim/ prosecutrix)( name withheld to protect her identity), who was studying in class 10+1 at Government Senior Secondary School, Chhatri, has gone missing. Above named complainant also alleged that as per the information received by him her minor daughter alongwith other girl (second victim/ prosecutrix) ( name withheld to protect her identity), have been kidnapped by three boys. On the basis of aforesaid complaint, FIR, as detailed hereinabove, came to be lodged under Section 363 of IPC against the unknown persons at police Station Janjehli, District Mandi, H.P. During the ::: Downloaded on - 22/11/2019 20:24:23 :::HCHP 3 investigation police recovered minor daughter of the complainant alongwith other girl from the car bearing .
registration No. HP882894 at place called Magrugalla. Police after getting the statements of the victims/ prosecutrix (two in number) recorded under Section 164 Cr.P.C., in the Court of learned Judicial Magistrate, 1st Class, Gohar, District Mandi, H.P., registered the case under Sections 363, 366, 376, 506, 120B of IPC and Section 4 and 6 of POCSO Act against the present bail petitioner and other coaccused, who subsequently came to be arrested on 2.4.2019 and since then bail petitioner is behind the bars. Coaccused namely Rajesh Singh, Rajinder Singh and Jai Pardha stand enlarged on bail.
4. Mr. Kunal Thakur, learned Deputy Advocate General while fairly admitting that challan stands filed in the competent Court of law and nothing remains to be recovered from the bail petitioner, strenuously argued that keeping in view the gravity of offence alleged to have been committed by the bail petitioner, prayer having been made on his behalf for grant of bail deserves outright rejection. Learned Deputy Advocate General further contended that close scrutiny of the ::: Downloaded on - 22/11/2019 20:24:23 :::HCHP 4 evidence collected on record by the Investigating Agency, clearly suggest that present bail petitioner alongwith other co .
accused firstly kidnapped two minor girls and thereafter sexually assaulted them against their wishes. Mr. Thakur, further contended that two accused namely Jai Pradha and Rajesh Kumar were granted bail by this Court on altogether different grounds because they had no direct relation with the commission of offence under Section 376 of IPC. He fairly admitted that coaccused Rajinder Singh, against whom offence under Section 376 of IPC has been registered by the prosecution stands enlarged on bail. Lastly, Mr. Thakur, contended that though material available on record nowhere suggest that victims/prosecutrix of their own volition joined the company of the bail petitioner, but even for the sake of arguments, if it is presumed that victims/prosecutrix of their own volition had gone with the bail petitioner and other co accused, their consent, if any, is of no relevance on account of their age as both of them were minor at the time of alleged incident.
::: Downloaded on - 22/11/2019 20:24:23 :::HCHP 55. Having heard learned counsel representing the parties and perused the material available on record, this .
Court is persuaded to agree with Mr. Prashant Chaudhary, learned counsel representing the petitioner that victims/ prosecutrix were not kidnapped, rather they of their own volition went with the bail petitioner and other coaccused.
One of the prosecutrix though in her statement recorded under Section 164 Cr.P.C., has stated that she was forcibly pushed into the car being driven by the present bail petitioner, but if the statement of another victim/prosecutrix is read in its entirety juxtaposing the statement of another victim/ prosecutrix, it clearly emerge that one of the prosecutrix was already known to one of the coaccused and she insisted other victim/prosecutrix to come and sit in the car. One of the victim/prosecutrix in her statement recorded under Section 164 Cr.P.C., before the learned Judicial Magistrate, claimed that incident took place in the morning hours, whereas another victim/prosecutrix has stated that she was forcibly taken in the car in the evening. There are material contradictions in the statements of both the prosecutrix with ::: Downloaded on - 22/11/2019 20:24:23 :::HCHP 6 regard to sequence of events, allegedly took place prior to alleged commission of offence punishable under Section 376 of .
IPC.
6. As per the statements of victims/prosecutrix, they were introduced to bail petitioner and other coaccused by co accused namely, Jai Pradha, who happened to be their sister inlaw (Bhabi). Similarly, it clearly emerge from the record that both the prosecutrix had prior acquaintance with the present bail petitioner and other coaccused. One of the victim/prosecutrix has categorically stated in her statement that she had been frequently talking to present bail petitioner as well as other coaccused Rajinder Singh. There is another glaring aspect of the matter that both the victims/prosecutrix had come with prior preparation to go with accused because it has come in their statements that they had also brought their casual clothes to be worn by them after they join the company of the bail petitioner and other coaccused. As per statements of the victims/prosecutrix they changed their clothes after reaching the spot of occurrence. Similarly, medical evidence adduced on record, if read in its entirety, nowhere suggests ::: Downloaded on - 22/11/2019 20:24:23 :::HCHP 7 internal/external injury, if any, on the person of victims/prosecutrix. Though, case of the prosecution is that .
bail petitioner and other coaccused fled away leaving behind their car, but if statements of the victims/prosecutrix are read carefully it suggest that the bail petitioner and coaccused had gone to fetch the fuel. Involvement of coaccused Jai Pradha, who happened to be Bhabi of the victims/prosecutrix clearly suggests that both the prosecutrix of their own volition joined the company of the bail petitioner and other coaccused and as such, it cannot be said that they were kidnapped and forcibly taken by the bail petitioner and other coaccused. No doubt, age of both the prosecutrix at the time of alleged incident was less then 16 years, but if their conduct is seen, which duly reflects from their statements, it cannot be said that they were not capable of understanding the consequences of their being in the company of the bail petitioner and other co accused.
7. 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 ::: Downloaded on - 22/11/2019 20:24:23 :::HCHP 8 prosecution, but in view of the peculiar facts and circumstances of the case, as has been discussed hereinabove, .
this Court sees no reason to keep the bail petitioner behind the bars for an indefinite period, especially, when nothing remains to be recovered from him. It is also not in dispute that other coaccused stands enlarged on bail. No material, worth the name, has been placed on record suggestive of the fact that in the event of petitioner being enlarged on bail he may flee from justice or may dissuade the prosecution witness from deposing against him and as such, this Court has every reason to believe that petitioner being local resident of the area shall always remain available for investigation and trial.
8. Hon'ble Apex Court as well as this Court in catena of cases have held that freedom of an individual cannot be curtailed for indefinite period during the pendency of the trial because one is deemed to be innocent until his/her guilt, is not proved in accordance with law. In the case at hand, guilt, if any, of the bail petitioner is yet to be proved in accordance with law by leading cogent and convincing evidence.
::: Downloaded on - 22/11/2019 20:24:23 :::HCHP 99. 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 is important to r to further held that while considering prayer for grant of bail, it 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 ::: Downloaded on - 22/11/2019 20:24:23 :::HCHP 10 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 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 ::: Downloaded on - 22/11/2019 20:24:23 :::HCHP 11 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.
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 ReInhuman Conditions in 1382 Prisons
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 ::: Downloaded on - 22/11/2019 20:24:24 :::HCHP 12 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."
11. 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 ::: Downloaded on - 22/11/2019 20:24:24 :::HCHP 13 accused, circumstances which are peculiar to the accused involved in that crime.
.
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;
(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.
13. Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing personal bond in the sum of Rs.
2,00,000/ (Rs. two lakh) with two sureties in the like amount to the satisfaction of the learned trial Court, with following conditions:
::: Downloaded on - 22/11/2019 20:24:24 :::HCHP 14a. 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 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 surrender passport, if any, held by him.
14. 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.
15. 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 21st November, 2019 (shankar) ::: Downloaded on - 22/11/2019 20:24:24 :::HCHP