Himachal Pradesh High Court
Deepak Kanwal vs State Of Himachal Pradesh on 31 July, 2020
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No. 802 of 2020
Decided on July 31, 2020
.
-----------------------------------------------------------------------------
Deepak Kanwal ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
-----------------------------------------------------------------------------
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1
-----------------------------------------------------------------------------
For the petitioner Mr. Rajiv Sharma, Advocate,
through video-conferencing.
For the respondent Mr. Sanjeev Sood, Additional
Advocate General with Mr.
r Gaurav Sharma, Deputy
Advocate General, through video-
conferencing.
-----------------------------------------------------------------------------
Sandeep Sharma, J. (Oral)
Bail petitioner, Deepak Kanwal, who is behind the bars since 20.7.2019, has approached this Court in the instant proceedings filed under S.439 CrPC, for grant of regular bail in respect of FIR No. 108, dated 20.7.2019, registered at Police Station, Kala Amb, District Sirmaur, Himachal Pradesh under Ss.
376, 328, 354 and 120B IPC.
2. Sequel to order dated 5.6.2020, respondent-State has filed the status report, prepared on the basis of investigation carried out by the investigating agency, perusal whereof reveals that on 19.7.2019, Police, after having received information from Women Helpline, Ambala, Haryana, reached Hotel Black Mango 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 31/07/2020 20:21:04 :::HCHP 2situate at Kala Amb, District Sirmaur, Himachal Pradesh, where, victim-prosecutrix, aged 21 years (name withheld) got her .
statement recorded under S.154 CrPC, alleging therein that she is resident of Karnal, Haryana and at present is working with co-
accused Monika Sharma in her boutique. She alleged that the co-
accused Monika Sharma, with whom she had close relationship, persuaded her to come to Himachal alongwith her friends. She alleged that the co-accused Monika told her that she would also talk to her friend, Deepak Kanwal, i.e. present bail petitioner, with regard to her job. Victim-prosecutrix also disclosed to the Police that on 19.7.2019, at 4.00 PM, she alongwith two persons went to Kala Amb from Karnal, where co-accused Rajesh had already booked two rooms in Hotel Black Mango. Victim-
prosecutrix alleged that at around 8 PM, they all went to Room No. 210, where she was made to consume cold drink containing some intoxicant, as a consequence of which, she started feeling giddy. Victim-prosecutrix also alleged that the co-accused Monika and bail petitioner left the room, whereafter, co-accused Rajesh sexually assaulted her against her wishes. Complainant further alleged that she raised alarm for help but nobody came to her rescue. She also alleged that to save herself, she locked herself in the bathroom and gave telephonic call on Women Helpline, Ambala. She disclosed to the police that after some time co-accused Monika came into the room and asked her to come ::: Downloaded on - 31/07/2020 20:21:04 :::HCHP 3 out as Police had reached the Hotel in question. In the aforesaid background, FIR, detailed herein above, came to be lodged .
against the bail petitioner and other co-accused named herein above. Co-accused Monika Sharma stands enlarged on bail, whereas, bail petitioner and other co-accused Rajesh Kumar, are behind the bars since 20.7.2019.
3. Learned Deputy Advocate General, while fairly admitting the factum with regard to filing of Challan in the competent Court of law and completion of investigation contends that though nothing remains to be recovered from the bail petitioner but keeping in view the gravity of offence alleged to have been committed by bail petitioner, he does not deserve any leniency rather the bail petitioner needs to be dealt with severely as such, petition may be rejected outrightly. Learned Deputy Advocate General, while making this Court peruse the status report, submits that it stands duly established on record that the bail petitioner in connivance with the co-accused, Monika Sharma, exploited the victim-prosecutrix. Learned Deputy Advocate General contends that firstly the bail petitioner brought the victim-prosecutrix to Kala Amb, with the assurance that he would provide job to her and thereafter, sexually assaulted her against her wishes, as such, he does not deserve any leniency.
Lastly, learned Deputy Advocate General contends that since the bail petitioner hails from Haryana, it would be difficult to ensure ::: Downloaded on - 31/07/2020 20:21:04 :::HCHP 4 his presence during trial, in the event of his being enlarged on bail.
.
4. Having heard learned counsel for the parties and perused the material available on record, this Court finds that initially on 19.7.2019, victim-prosecutrix, while getting her statement recorded under S.154 CrPC, though disclosed to the Police that the bail petitioner brought her to Kala Amb, but she nowhere levelled allegation, if any, of commission of offence punishable under S.376 IPC by the bail petitioner. On 19.7.2019, victim-prosecutrix alleged that both the bail petitioner and co-
accused Monika left her alone in Room No. 210 in Hotel Black Mango and thereafter, co-accused Rajesh sexually assaulted her against her wishes. Careful perusal of the contents of FIR nowhere disclose commission of offence, if any, by bail petitioner Under S.376 IPC. After two months of lodging the FIR in question, on 19.9.2019, victim-prosecutrix again got her statement recorded under S.164 CrPC before Judicial Magistrate 1st Class-I, wherein she alleged that the bail petitioner also sexually assaulted her against her wishes on 19.7.2019.
5. True it is that perusal of aforesaid statement made by victim-prosecutrix on 19.9.2019, suggests that bail petitioner also sexually assaulted her against her wishes on 19.7.2019, but it is not understood that what prevented the victim-prosecutrix from disclosing aforesaid fact to the Police on 19.7.2019, when ::: Downloaded on - 31/07/2020 20:21:04 :::HCHP 5 her initial statement under S.154 CPC was recorded. Otherwise also, record pertaining to investigation nowhere suggests that .
between 19.7.2019 and 19.9.2019, victim-prosecutrix ever disclosed factum to the Police with regard to commission of offence, if any, under S.376 by the bail petitioner, rather, on 19.9.2019, victim-prosecutrix took a complete U turn by stating that co-accused Monika committed no wrong with her (victim-
prosecutrix) rather saved her from other co-accused.
6. Having noticed aforesaid glaring aspects of the matter, this Court finds force in the submission made by learned Counsel appearing for the petitioner that no plausible explanation ever came to be rendered on record with regard to delay in disclosing name of bail petitioner so far commission of offence under S.376 IPC is concerned. At the first instance, victim-prosecutrix also levelled allegation against co-accused Monika and disclosed to the Police that she alongwith bail petitioner left her alone in Room No. 210 with co-accused Rajesh, but subsequently, as has been taken note herein above, in her statement under S.164 CrPC, gave a clean chit to Monika by stating that she saved the victim-prosecutrix from the clutches of other accused. Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court in the totality of evidence collected on record by the investigating agency, but having noticed aforesaid aspects of the matter, this ::: Downloaded on - 31/07/2020 20:21:04 :::HCHP 6 court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial especially when nothing .
remains to be recovered from him. Having taken note of the fact that the victim-prosecutrix was 21 years of age at the time of alleged incident coupled with the fact that she, of her own volition, had come to Kala Amb, alongwith her friend Monika and two accused, this Court is not inclined to accept the submission made by learned Deputy Advocate General that the bail petitioner took undue advantage of innocence of the victim-prosecutrix, rather, material available on record compels this Court to draw an inference that the victim-prosecutrix being major was fully capable of understanding the consequences of her being in the company of the bail petitioner and other co-accused. Hon'ble Apex Court and this Court have repeatedly held that till the time, guilt of an individual is proved in accordance with, he/she is deemed to be innocent. In the case at hand guilt, if any, of the bail petitioner, is yet to be determined in the totality of the evidence collected on record by the prosecution, as such, there is no justification for keeping the bail petitioner behind the bars for an indefinite period during trial.
7. This Court also cannot lose sight of the fact that there is every likelihood of further delay in trial, on account of Covid-19 pandemic, as such, there is no reason to refuse the prayer made in the present petition for grant of bail.
::: Downloaded on - 31/07/2020 20:21:04 :::HCHP 7Apprehension expressed by learned Deputy Advocate General that in the event of bail petitioner being enlarged on bail, he may .
flee from justice, can be best met by putting him to stringent conditions.
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 held that freedom of an individual can not be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held 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 ::: Downloaded on - 31/07/2020 20:21:04 :::HCHP 8 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 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 ::: Downloaded on - 31/07/2020 20:21:04 :::HCHP 9 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. By now it is well settled 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. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; 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 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 - 31/07/2020 20:21:04 :::HCHP 10 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 rextraordinary 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."
10. 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 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, ::: Downloaded on - 31/07/2020 20:21:04 :::HCHP 11 character of the accused, circumstances which are peculiar to the accused involved in that crime.
.
11. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held as under:
"This Court in Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40, 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 nor 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 a 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 and 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 that grant or denial of such ::: Downloaded on - 31/07/2020 20:21:04 :::HCHP 12 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."
12. 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 r 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. In view of above, bail petitioner has carved out a case for himself. Consequently, present petition is allowed. Bail petitioner is ordered to be enlarged on bail subject to furnishing bail bonds in the sum of Rs.2,00,000/- with one local surety in the like amount, to the satisfaction of the Investigating Officer/learned Magistrate available at the station, besides the following conditions:
(a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the ::: Downloaded on - 31/07/2020 20:21:04 :::HCHP 13 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.
(e) He shall surrender passport, if any, held by him.
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 petition alone.
The petition stands accordingly disposed of.
(Sandeep Sharma) Judge July 31, 2020 (vikrant) ::: Downloaded on - 31/07/2020 20:21:04 :::HCHP