Himachal Pradesh High Court
Purshotam Chand vs State Of Himachal Pradesh on 16 October, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.1842 of 2019
Decided on: 16.10.2019
.
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Purshotam Chand ...........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 : Mr. N.S. Chandel, Senior Advocate with
Mr. Vinod Gupta, Advocate.
For the Respondent : Mr. Sudhir Bhatnagar and Mr. Sanjeev
Sood, Additional Advocate Generals,
with Mr. Kunal Thakur, Deputy Advocate
General, for the State.
__________________________________________________________________
Sandeep Sharma, Judge (oral):
Bail petitioner, namely Purshotam Chand, who is behind bars since 30.9.2018, has approached this Court in the instant proceedings filed under Section 439 of Cr.PC, for grant of regular bail in connection with FIR No. 48/18, dated 30.9.2018, under Sections 376, 323, 341 and 506 of IPC, registered at P.S. Mcleodganj, District Kangra, H.P.
2. In terms of order dated 4.10.2019, ASI Rakesh Parmar, has come present alongwith records. Mr. Kunal Thakur, learned Deputy Advocate General, has also placed on record status report prepared on the basis of investigation carried out by the Investigating Agency. Record perused and returned.
1Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 17/10/2019 20:24:30 :::HCHP 23. Record/status report made available to this Court reveals that on 30.9.2018, victim-prosecutrix (name withheld) lodged a complaint .
at PS Mcleodganj, Dharamshala, District Kangra, alleging therein that she on 29.8.2018, at 9:30 am, had gone to Tanda Hospial for taking medicines and at 7:30pm, while she was going back to her house, bail petitioner, who happened to be her nephew, met her near Salli Bus stand and offered to drop her at her house. Allegedly, the bail petitioner asked the victim-prosecutrix that since she is going alone to her house, he would accompany her. Victim-prosecutrix further alleged that the bail petitioner while walking with her started behaving indecently and thereafter, forcibly took her behind the bushes adjacent to the road leading to her house, where she was sexually assaulted against her wishes. Victim-
prosecutrix further alleged that since her mouth was gagged by the bail petitioner, she was unable to raise alarm. At 8:15pm, on the date of alleged incident, victim-prosecutrix informed her husband about the incident and thereafter, on 30.9.2018 came to police station Mcleodganj for lodging report. On the basis of aforesaid report, formal FIR as detailed herein above, came to be lodged against the bail petitioner on 30.9.2018 and since then he is behind the bars.
4. Mr. N.S. Chandel, learned Senior Counsel representing the bail petitioner while making this Court to peruse the record vehementally ::: Downloaded on - 17/10/2019 20:24:30 :::HCHP 3 argued that no case much less under Section 376 IPC is made out against the bail petitioner and he has been falsely implicated. Mr. Chandel .
further contended that though bail petitioner is innocent, but even if statement of victim-prosecutrix is perused vis-à-vis other evidence collected on record by the Investigating Agency, it clearly suggests that victim-prosecutrix, who is 45 years old, of her own volition and without there being external pressure had joined the company of the bail petitioner and as such, allegation of forcible sexual intercourse is not tenable. He further contended that challan stands already filed in the competent court of law and nothing remains to be recovered from the bail petitioner and as such, his freedom cannot be curtailed for an indefinite period during trial, especially when he has already suffered for more than one year. Lastly, Mr. Chandel, contended that the bail petitioner is the local resident of area and shall always remain available for trial as and when called.
5. Learned Deputy Advocate General, while fairly admitting the factum with regard to filing of challan contended that keeping in view the gravity of offence alleged to have been committed by the bail petitioner, his application for grant of bail may be rejected. He further contended that there is ample evidence available on record suggestive of the fact that the bail petitioner, who otherwise happens to be nephew ::: Downloaded on - 17/10/2019 20:24:30 :::HCHP 4 of victim-prosecutrix, taking undue advantage of innocence and helplessness of the victim-prosecutrix, sexually assaulted her against her .
wishes and as such, prayer for grant of bail deserves outright rejection.
6. Having heard learned counsel for the parties and perused material available on record, this Court finds that as per own statement of victim-prosecutrix, at 9:30 am, victim-prosecutrix had gone to Tanda Hospital for taking medicines, but there is no explanation that why she waited till 7:30pm to go back to her house. Similarly, it is an admitted case inter-se parties that the bail petitioner and victim-prosecutrix are related to each other and as such, there appears to be considerable force in the argument of Sh. N.S. Chandel, learned Senior counsel that version putforth by the victim-prosecutrix cannot be blindly accepted, rather needs to be examined minutely. As per own statement of victim-prosecutrix, bail petitioner while accompanying her to her house started behaving indecently, if it was so, why victim-prosecutrix did not raise alarm at that stage and refused to go with the bail petitioner. Moreover, careful perusal of spot map prepared by the Investigating Agency clearly suggests that bushes, where victim-prosecutrix was allegedly sexually assaulted, are at a distance of 70-80 feet from the road leading to the house of the prosecutrix. Had bail petitioner taken the victim-prosecutrix forcibly towards the bushes and thereafter, subjected her to forcible ::: Downloaded on - 17/10/2019 20:24:30 :::HCHP 5 intercourse, victim-prosecutrix must have suffered injuries on her person.
However, careful perusal of medical evidence adduced on record .
nowhere suggests that victim-prosecutrix suffered any kind of internal or external injuries save and except one abrasion/bruise on her knee.
Photographs of the alleged spot of incident further suggest that there were stones and in the event of forcible sexual assault, victim-prosecutrix would have definitely suffered external injuries on her person, especially on her back but as has been noticed herein above, no external injury save and except abrasion and bruise on her knee, ever came to be detected by the medical officer during medical examination of victim-
prosecutrix. Moreover, cloths wore by victim-prosecutrix on the alleged date of incident were also not found torn and as such, it cannot be inferred that struggle, if any, was made by the victim-prosecutrix to escape herself from the clutches of the bail petitioner at the time of alleged sexual assault.
7. Though aforesaid aspects of the matter are to be considered and decided by the court below on the basis of totality of evidence collected on record by the Investigating Agency, but having noticed aforesaid aspect of the matter, this Court, sees no reason to let the bail petitioner incarcerate in jail for an indefinite period. Leaving everything aside, guilt if any of the bail petitioner is yet to be established ::: Downloaded on - 17/10/2019 20:24:30 :::HCHP 6 on record by the Investigating Agency by leading cogent and convincing evidence and as such, his freedom cannot be curtailed for an indefinite .
period, especially when he has already suffered for more than one year.
Moreover, challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner and there is no material placed on record to infer that in the event of grant of bail to the bail petitioner, he would flee from justice and as such, this Court is of the view that bail petitioner being local resident of the area shall always remain available for investigation/trial as and when required by the Investigating Agency.
8. 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 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 has further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear ::: Downloaded on - 17/10/2019 20:24:30 :::HCHP 7 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.
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 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 ::: Downloaded on - 17/10/2019 20:24:30 :::HCHP 8 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.
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 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 ::: Downloaded on - 17/10/2019 20:24:30 :::HCHP 9 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."
11. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218, The Hon'ble Apex Court has held as under:-
" This Court in Sanjay Chandra v. CBI, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that 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 found guilty. It was underlined that the object of bail is neither punitive or preventive. This Court sounded a caveat 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 a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and the grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted."::: Downloaded on - 17/10/2019 20:24:30 :::HCHP 10
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) r danger, of course, of justice being thwarted by grant of bail.
13. 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. 2,00,000/- each with two local sureties in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, 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;
(c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade ::: Downloaded on - 17/10/2019 20:24:30 :::HCHP 11 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.
.
14. 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.
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 petition stands accordingly disposed of. r Copy dasti.
16th October, 2019 (Sandeep Sharma),
manjit Judge
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