Himachal Pradesh High Court
Sambhal U.P. Aged 29 Years vs State Of Uttar Pradesh & Anr on 9 September, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 9th DAY OF SEPTEMBER, 2022
.
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL MISC.PETITION (MAIN) No. 1821 OF 2022
Between:
JEET PAL SON OF SH. BADAN SINGH
RESIDENT OF VILLAGE DATTAVALLI,
POLICE STATION HIYAATPUR, DISTRICT
SAMBHAL U.P. AGED 29 YEARS.
....PETITIONER
(BY MR. ANUP RATTAN, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
....RESPONDENT
(MR. SUDHIR BHATNAGAR AND MR.
NARINDER GULERIA, ADDITIONAL
ADVOCATE GENERALS WITH MS.
SVANEEL JASWAL DEPUTY ADVOCATE
GENERAL AND MR. SUNNY DHATWALIA,
ASSISTANT ADVOCATE GENERAL)
Whether approved for reporting?
This petition coming on for orders this day, the Court passed the following:
ORDER
Bail petitioner namely, Jeetpal, who is behind the bars since 13.3.2020, 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. 82 of 2020, dated 16.02.2020 under Sections 376, 363, 366-A of IPC and Section 6 of the POCSO Act, registered at police Station, Una, District Una, H.P. ::: Downloaded on - 09/09/2022 20:08:16 :::CIS 2
2. Pursuant to orders dated 18.08.2022/1.09.2022, respondent-
State has filed the status report and ASI Kuldeep Kumar has also come present .
alongwith the record. Record perused and returned.
3. Close scrutiny of the record/status report reveals that on 16.02.2020, complainant Smt. Savitri Devi lodged a complaint at police Station, Una, District Una, H.P., alleging therein that her minor daughter, aged 14 years (name withheld to protect her identity) is missing since 31.01.2020. She alleged that though she tried to ascertain whereabouts of her daughter from her acquaintances, but nobody is aware of her whereabouts. She alleged that she has come to know that present bail petitioner namely Jeetpal @ Nanhe has made her daughter to elope with him on the pretext of marriage and as such, appropriate action, in accordance with law, be taken against him. On the basis of aforesaid statement made by complainant, FIR, as detailed hereinabove, came to be lodged against the bail petitioner. Police after having ascertaining the address of the bail petitioner, visited Baldevpur/Laxminagar, District Moradabad and recovered victim/prosecutrix on 11.3.2020. Police after getting victim/prosecutrix medically examined also got her statement recorded under Section 164 Cr.P.C before the Judicial Magistrate, wherein she alleged that bail petitioner and persons namely Om Pal, Raj Kumar took her in a bus. She alleged that person namely Om Pal and Raj Kumar stayed back at Una and she alongwith Jeet Pal went to Moradabad in a bus. She stated that she started living at Moradabad and stayed there for one month. She alleged that her mother reached Moradabad and thereafter present bail petitioner came back before Holi. She alleged that she came back to Una alongwith her mother. She ::: Downloaded on - 09/09/2022 20:08:16 :::CIS 3 alleged that Jeetpal came back to his work at Una and he was arrested by the police. She also alleged that she was sexually assaulted by the bail petitioner.
.
4. Though, medical of victim/prosecutrix was got done at ZH Una but since same happened after 47 days of the alleged incident that may not be very crucial. Otherwise also, MLC placed on record does not support the case of the prosecution. Even FSL report submitted before the Court below through supplementary challan does not support the case of the prosecution. Since, challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner, he has approached this Court in the instant proceedings for grant of regular bail. Lastly, this case was taken up on 1.09.2022 when counsel representing the petitioner invited attention of this Court to Adhar Card of the victim/prosecutrix to demonstrate that at the time of the alleged incident, she was 18 years old. This Court vide aforesaid order directed the learned Additional Advocate General to verify aforesaid factum.
Today, during the proceedings of the case learned Additional Advocate General has fairly stated that Adhar Card placed on record belongs to the victim/prosecutrix and as per the same, she was 18 years old at the time of alleged incident.
5. While fairly acknowledging factum with regard to filing of the challan in competent court of law, Mr. Narender Guleria, learned Additional Advocate General states 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 him, he does not deserve any leniency. He further submits that though Adhar card placed on record reveals that the victim/prosecutrix was 18 ::: Downloaded on - 09/09/2022 20:08:16 :::CIS 4 years old at the time of alleged incident and as such, no case could have been registered against the petitioner under Section 6 of the POCSO Act, but fact .
remains that the bail petitioner has raped the victim/prosecutrix against her wishes and as such, does not deserves any leniency. Lastly, learned Additional Advocate General submits that since bail petitioner hails from the State of U.P., it may not be in the interest of justice to enlarge him on bail because in the event of his being enlarged on bail, he may not only flee from justice, but may cause harm to the victim/prosecutrix.
6. Having heard learned counsel representing the parties and perused the material available on record, especially statement of victim/ prosecutrix recorded under Section 164 Cr.P.C, this Court finds that victim/ prosecutrix had prior acquaintance with the bail petitioner and she of her own volition joined the company of the bail petitioner and went to Moradabad with him. It is also not in dispute that victim/prosecutrix remained at Moradabad for one month but during this period, she never made any attempt to lodge complaint, if any, against the bail petitioner on account of her being wrongfully confined in the room by bail petitioner. Interestingly, statement of victim/prosecutrix recorded under Section 164 Cr.P.C, reveals that her mother was aware of her daughter and as such, she went to Moradabad but even then no complaint, was lodged, rather bail petitioner was arrested when he came back from Moradabad to Una for work. Though, complainant initially claimed that victim/prosecutrix is 14 years old, but Adhar Card placed on record, which has been duly verified by the Investigating Agency, clearly reveals that victim/prosecutrix was 18 years old at the time of the alleged incident and as ::: Downloaded on - 09/09/2022 20:08:16 :::CIS 5 such, this Court is not persuaded to agree with the submission of learned Additional Advocate General that bail petitioner taking undue advantage of .
innocence and minority of the victim/prosecutrix assaulted her against her wishes, rather statement of the victim/prosecutrix recorded under Section 164 Cr.P.C., clearly reveals that she of her own volition and with a view to solemnize marriage with the bail petitioner joined his company and remained at Moradabad for one month. Leaving everything aside, medical evidence as well as FSL report adduced on record nowhere support the case of the prosecution.
At this stage, learned Additional Advocate General invited attention of this Court to the statement of the victim/prosecutrix made before the trial Court to contend that she has categorically stated that bail petitioner sexually assaulted her against her wishes, but if the statement of the victim/prosecutrix is read in its entirety, there are lot of contradictions and inconsistencies.
7. Though, case at hand is to be decided by the trial Court on the basis of the totality of evidence collected on record by the investigating agency, but having noticed conduct of the victim/prosecutrix, which is apparent from her statement given to the Judicial Magistrate under Section 164 Cr.P.C as well as factum of her having remained in the company of the bail petitioner for one month after alleged abduction, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during the trial, especially when challan stands filed in the competent court of law.
8. Hon'ble Apex Court as well as this Court have held in catena of cases that one is deemed to be innocent till the time his /her guilt is not proved, in accordance with law and as such, this Court sees no reason to curtail the ::: Downloaded on - 09/09/2022 20:08:16 :::CIS 6 freedom of the bail petitioner for indefinite period during the trial, especially when nothing remains to be recovered from him. Apprehension expressed by .
learned Additional Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice or may again indulge in such activities, can be best met by putting bail petitioner to stringent conditions.
9. 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 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 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 ::: Downloaded on - 09/09/2022 20:08:16 :::CIS 7 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 rrequired 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
10. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; held as under:-
::: Downloaded on - 09/09/2022 20:08:16 :::CIS 8" 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 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 accused, circumstances which are peculiar to the accused involved in that crime.
::: Downloaded on - 09/09/2022 20:08:16 :::CIS 912. 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. 1,00,000/- with one local surety in the like amount, to the satisfaction of the learned 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 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.::: Downloaded on - 09/09/2022 20:08:16 :::CIS 10
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.
16. Learned counsel for the petitioner is permitted to produce copy of order downloaded from the High Court website before the trial Court, who shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.
9th September, 2022 (Sandeep Sharma),
(shankar) Judge
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