Himachal Pradesh High Court
Charan Singh vs State Of Himachal Pradesh on 9 December, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 2148 of 2020 .
Decided on: 9.12.2020
Charan Singh ...Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1
For the petitioner:
r Mr. Manoj Pathak, Advocate.
For the respondent: Mr. Anil Jaswal, Addl.A.G with Ram Lal Thakur,
Assistant Advocate General
COURT PROCEEDINGS CONVENED THROUGH VIDEO CONFERENCE
Anoop Chitkara, Judge.
The petitioner aged 65 years, who is in custody since 4.3.2020 for molesting and raping a minor girl aged 15 years, has come up before this Court seeking regular bail on the grounds that the semen from the clothes of the victim as well as from the blood sample of the petitioner, when tested by the laboratory for matching DNA profile, did not match, which establishes the false implication of the petitioner and hence he is entitled to bail.
2. Based on a complaint, the police arrested the petitioner in FIR No.3 of 2020, dated 3.3.2020, registered under Section 376, 506 of Indian Penal Code, 1860, (IPC), and Section 4 of the Protection of Children from Sexual Offices, Act, 2012 (POCSO Act), in Mahila Police Station, New Shimla, District Shimla, Himachal Pradesh, disclosing cognizable and non-bailable offences.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 09/12/2020 20:19:40 :::HCHP 23. Briefly, the allegations against the petitioner are that on 3rd March, 2020, the victim aged 15 years accompanied by her mother, Smt. Neelam, visited Women Police Station, BCS, New Shimla and handed over a written complaint to the police .
station. As per the allegations made in the complaint, the victim stated that she resided in a building at Hira Nagar alongwith her brother and sister. She mentioned her age to be 15 years and was giving exams of 10 th Class. She further stated that the petitioner-Chaudhary Charan Singh was the landlord of her friend and he would talk to her and occasionally, would also give cholocate and Maggi to her. She further stated that the landlord of her sister would also call her to the residence of her friend and in her residence used to do bad acts with her. He also used to say that he would transfer his plot in her name, if she remains quite. In the evening of 2 nd March, 2020, the petitioner again called her to the residence of her friend. On this, she visited the residence of her flat, where the petitioner as well as her friend were present. On her arrival, the friend of the victim left the residence and he started talking to her. In the meantime, petitioner Chaudhary Charan Singh forcibly opened her Pajama and committed bad act with her. When she asked him not to do it, then he threatened to do away with her life. The complainant further stated that she told this incident to her mother and she visited the Police Station alongwith her. The victim also revealed that the accused was the landlord of the friend of the victim.
The victim would normally visit her home, where she came in contact with the petitioner. One day, he asked her phone number and then started calling her. The victim also told that once when she had gone to the house of her friend, then the accused in the state of intoxication visited there. After that, her friend left the room to bring milk. When her friend had left the room, then the accused bolted the door from inside, undressed the victim and committed rape upon her. After that, on 4 th March, 2020 at about 3.30 a.m., the police got the medical legal examination of the victim conducted from DDU Zonal Hospital, Shimla.
4. While giving history to the doctor, the victim told her that the accused committed sexual intercourse with her on 2nd March, 2020 and even earlier, he had done the similar episodes on 4-5 times. She further told the doctor that the accused would made her to take bear and after that, he would commit sexual intercourse with her. She disclosed her menstrual period as on the previous date. The doctor did not ::: Downloaded on - 09/12/2020 20:19:40 :::HCHP 3 notice any injury and took the smears of vaginal swab, blood sample from the FTA card and the clothes.
5. The investigator also obtained the blood sample and other samples from the .
accused and sent the same for testing to Forensic Science Laboratory (FSL), Junga. After receipt of the opinion from the Labratory, the investigator produced the same before the Medical Officer, who examined the victim initially. As per the opinion given by the Medical Officer on 30.7.2020 on the Medico Legal Certificate itself, the doctor referred to the report of the laboratory and stated that one of the DNA profile was not consistent with that of Chaudhary Charan Singh. The doctor further stated that at the time of her initial examination, the victim had not given any history of assault by any other person.
6. The Counsel for the petitioner contends that the blood sample obtained by the investigator from the Pajama and T-shirt of the victim did not connect with the blood sample of the petitioner, when the laboratory obtained a DNA profile of both the blood samples, obtained from different sources. He further contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family. Learned counsel for the petitioner, on instructions, further contends that the petitioner has clean slate and has no criminal history.
7. While opposing the bail, the alternative contention on behalf of the State is that if this Court grants bail, such order must be subject to conditions, especially of not repeating the criminal activities.
ANALYSIS AND REASONING:
8. In Gurbaksh Singh Sibbia and others v. State of Punjab, 1980 (2) SCC 565, (Para 30), a Constitutional bench of Supreme Court held that the bail decision must enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42, (Para 18) a three-member bench of Supreme Court held that the persons accused of non-bailable offences are entitled to bail, if the Court concerned concludes that the prosecution has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its satisfaction for the need to release such persons on bail, in the given fact situations.
::: Downloaded on - 09/12/2020 20:19:40 :::HCHP 4The rejection of bail does not preclude filing a subsequent application, and the Courts can release on bail, provided the circumstances then prevailing requires, and a change in the fact situation. In State of Rajasthan, Jaipur v. Balchand, AIR 1977 .
SC 2447, (Para 2 & 3), Supreme Court noticeably illustrated that the basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the court. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. In Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240, (Para 16), Supreme Court in Para 16, held that the delicate light of the law favours release unless countered by the negative criteria necessitating that course. In Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22, (Para 6), Supreme Court held that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
9. Pre-trial incarceration needs justification depending upon the offense's heinous nature, terms of the sentence prescribed in the statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, criminal history of the accused, and doing away with the victim(s) and witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State. However, while deciding bail applications, the Courts should discuss evidence relevant only for determining bail. The difference in the order of bail and final judgment is similar to a sketch and a painting. However, some sketches are in detail and paintings with a few strokes.
10. The stand of the accused taken in the bail petition is that the petitioner was having inimical relations with Kanta alias Payal and Jasbeer, who were his tenants. He further stated that a large number of complaints were registered by the petitioner against both of them in Police Post Jatog.
::: Downloaded on - 09/12/2020 20:19:40 :::HCHP 511. The victim accompanied by her mother had visited the Police Station on 3 rd March, 2020 on the allegations that in the evening of previous day, i.e., 2 nd March, 2020, the petitioner had committed rape upon her. After that, on the intervening .
night of 3rd and 4th March, 2020, the police produced the victim for her medico legal examination from DDU Zonal Hospital, Shimla. While disclosing the history to the doctor, the victim told her that apart from this incident of rape, earlier from the last August onwards the accused had committed similar acts on 4-5 occasions. The victim did not mention any other person to be her perpetrator or having committed the sexual act on 2nd March, 2020. The doctor also obtained the smears from vaginal swabs and blood sample of the victim. The clothes, which the victim was wearing at the time of alleged sexual assault were also taken into possession and sent to Laboratory. Out of these clothes, one was a Pajama and another was a T- shirt top. After the arrest of the accused, the police also procured the blood sample of the accused and sent both the samples of the victim as well as of accused for matching to FSL, Junga. Vide report of the DNA Division of FSL, Junga dated 29.6.2020, the Assistant Director concluded that the DNA profile obtained from T- shirt and Pajama of the victim did not match with DNA profile obtained from FTA Card of Charan Singh.
12. Another important aspect is the conduct of the victim, which persuades this Court to grant bail. Although the victim did not tell the incident to her parents or friend may be because of the alleged threat, but the victim could have warned her friend to be careful from her landlord. However, she neither told her family nor friend nor cautioned her friend about her landlord.
13. In paragraph 8 of the bail petition reads that a false case was registered by the child victim at the instance of Kanta alias Payal and Jasbeer to teach lesson to the petitioner. Without going into the reasons for false implication, if any, the fact that DNA profile did not match and also the fact that the victim had told the doctor while telling her history that prior to this incident from the last August, the accused had called her on 4-5 occasions and the accused had committed sexual intercourse with her in the house of her friend. The conduct of the victim to keep on visiting the house of her sister, where according to her history given to the doctor, her ::: Downloaded on - 09/12/2020 20:19:40 :::HCHP 6 landlord would visit to ravish her is not that credible so as to deny the bail to the petitioner.
14. Given above, the facts and the DNA report as well as the history reported by .
the doctor make out a case for bail.
15. An analysis of entire evidence does not justify further incarceration of the accused, nor is going to achieve any significant purpose. Without commenting on the merits of the case, the stage of the investigation and the period of incarceration already undergone would make out a case for bail.
16. The possibility of the accused influencing the course of the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative conditions and stringent conditions. In Sushila Aggarwal, (2020) 5 SCC 1, Para 92, the Constitutional bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions.
17. Given the above reasoning, the Court is granting bail to the petitioner, subject to strict terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.
18. Following the decision of this Court in Manish Lal Shrivastava v. State of Himachal Pradesh, Cr.MP(M) No. 1734 of 2020, decided on 1st Dec 2020, the petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. One ten thousand (INR 10,000/-), and shall either furnish two sureties of a similar amount, both of whom, in case of default from putting in an appearance, can produce the accused before the Court to the satisfaction of the Judicial Magistrate, Shimla/ Chief Judicial Magistrate, District Shimla, HP/ or any other Judicial magistrate of District Shimla, HP or the aforesaid personal bond and fixed deposit(s) for Rs. Ten thousand only (INR 10,000/-), made in favour of "Chief Judicial Magistrate, District Shimla, H.P.", from any of the banks where the stake of the State is more than 50%, or any of the stable private banks, e.g., HDFC Bank, ICICI Bank, Kotak Mahindra Bank, etc., with the clause of automatic renewal of principal, and liberty of the interest reverting to the linked account. The arresting officer shall give a time of ten working days to enable the accused to prepare a fixed deposit. Such a fixed deposit need not ::: Downloaded on - 09/12/2020 20:19:40 :::HCHP 7 necessarily be made from the account of the petitioner. If such a fixed deposit is made on paper, then the original receipt shall be handed over to the arresting officer. If made online, then its printout, attested by any Advocate, and if possible countersigned by the .
accused, shall be filed, and the depositor shall get the online liquidation disabled. The petitioner or his Advocate shall inform at the earliest, either by e-mail or by post/courier, the concerned branch of the bank about the fixed deposit, whether made on paper or in any other mode, along with its number as well as FIR number, that it has been tendered as surety. After that he shall hand over such proof along with endorsement to the Investigator. It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. It shall also be open for the petitioner to apply for substitution of fixed deposit with surety bonds and vice-versa. Subject to the proceedings under S. 446 CrPC, if any, the entire amount of fixed deposit along with interest credited, if any, shall be endorsed/returned to the depositor(s). Such Officer shall have a lien over the deposits until discharged by substitution, and in case any Court takes cognizance then such Court, upon which the investigator shall hand over the deposit to such Court, which shall have a lien over it up to the expiry of the period mentioned under S. 437-A CrPC, 1973, or as the case may be. The furnishing of the personal bonds shall be deemed acceptance of the following and all other stipulations, terms, and conditions of this bail order:
a) The petitioner to give security to the concerned Court(s) for attendance.
Once the trial begins, the petitioner shall not, in any manner, try to delay the trial. The petitioner undertakes to appear before the concerned Court, on the issuance of summons/warrants by such Court. The petitioner shall attend the trial on each date, unless exempted, and in case of appeal, also promise to appear before the higher Court, in terms of Section 437-A CrPC.
b) The attesting officer shall mention on the reverse page of personal bonds, the permanent address of the petitioner along with the phone number(s), WhatsApp number (if any), email (if any), and details of personal bank account(s) (if available).
c) The petitioner shall join investigation as and when called by the Investigating Officer or any Superior Officer. Whenever the investigation takes place within the boundaries of the Police Station or the Police Post, then the petitioner shall not be called before 8 AM and shall be let off before 5 PM. The ::: Downloaded on - 09/12/2020 20:19:40 :::HCHP 8 petitioner shall not be subjected to third-degree methods, indecent language, inhuman treatment, etc.
d) The petitioner shall cooperate with the investigation at all further stages .
as may be required, and in the event of failure to do so, it will be open for the prosecution to seek cancellation of the bail granted by the present order.
e) The petitioner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police officials, or any other person acquainted with the facts of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.
f) Once the trial begins, the petitioner shall not in any manner try to delay the trial. The petitioner undertakes to appear before the concerned Court, on the issuance of summons/warrants by such Court. The petitioner shall attend the trial on each date, unless exempted.
g) In addition to standard modes of processing service of summons, the concerned Court may serve the accused through E-Mail (if any), and any instant messaging service such as WhatsApp, etc. (if any). [Hon'ble Supreme Court of India in Re Cognizance for Extension of Limitation, Suo Moto Writ Petition (C) No. 3/2020, I.A. No. 48461/2020- July 10, 2020].
h) The concerned Court may also inform the accused about the issuance of bailable and non-bailable warrants through the modes mentioned above.
i) In the first instance, the Court shall issue summons and may send such summons through SMS/ WhatsApp message/ E-Mail.
j) In case the petitioner fails to appear before the Court on the specified date, then the concerned Court may issue bailable warrants, and to enable the accused to know the date, the Court may, if it so desires, also inform the petitioner about such Bailable Warrants through SMS/ WhatsApp message/ E- Mail.
k) Finally, if the petitioner still fails to put in an appearance, then the concerned Court may issue Non-Bailable Warrants to procure the petitioner's presence and send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper to achieve the purpose.
l) In case of non-appearance, then irrespective of the contents of the bail ::: Downloaded on - 09/12/2020 20:19:40 :::HCHP 9 bonds, the petitioner undertakes to pay all the expenditure (only the principal amount without interest), that the State might incur to produce him before such Court, provided such amount exceeds the amount recoverable after forfeiture .
of the bail bonds, and also subject to the provisions of Sections 446 & 446-A of CrPC. The petitioner's failure to reimburse the State shall entitle the trial Court to order the transfer of money from the bank account(s) of the petitioner.
However, this recovery is subject to the condition that the expenditure incurred must be spent to trace the petitioner alone and it relates to the exercise undertaken solely to arrest the petitioner in that FIR, and during that voyage, the Police had not gone for any other purpose/function what so ever.
m) The petitioner shall intimate about the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, within thirty days from such modification, to the Police Station of this FIR, and also to the concerned Court.
n) The petitioner shall abstain from all criminal activities. If done, then while considering bail in the fresh FIR, the Court shall take into account that even earlier, the Court had cautioned the accused not to do so.
o) Considering the apprehension expressed by the learned counsel appearing for the respondent, the petitioner should stay far away from the place of occurrence while on bail - (Vikramsingh v. Central Bureau of Investigation, 2018 All SCR (Crl.) 458).
p) The petitioner shall neither stare, stalk, make any gestures, remarks, call, contact, message the victim, either physically, or through phone call or any other social media, nor roam around the victim's home. The petitioner shall not contact the victim.
q) The petitioner shall surrender all firearms along with ammunitions, if any, along with the arms license to the concerned authority within 30 days from today. However, subject to the provisions of the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back, in case of acquittal in this case.
r) In case of violation of any of the conditions as stipulated in this order, the State/Public Prosecutor may apply for cancellation of bail of the petitioner.
::: Downloaded on - 09/12/2020 20:19:40 :::HCHP 10Otherwise, the bail bonds shall continue to remain in force throughout the trial and also after that in terms of Section 437-A of the CrPC.
s) During the trial's pendency, if the petitioner repeats the offence or .
commits any offence where the sentence prescribed is seven years or more, then the State may move an appropriate application for cancellation of this bail.
19. The learned Counsel representing the accused and the Officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of this bail order to the petitioner, in vernacular and if not feasible, in Hindi or English.
20. In case the petitioner finds the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even before the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition.
21. Consequently, the petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing bail bonds in the terms described above.
22. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency, from further investigation in accordance with law.
23. Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.
24. The SHO of the concerned Police Station or the Investigating Officer shall arrange to send a copy of this order, preferably a soft copy, to the complainant and the victim, at the earliest. In case the victim notices stalking or any violation of this order, she may either inform the SHO of the concerned Police Station or write to the Trial Court or even to this Court.
25. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.
::: Downloaded on - 09/12/2020 20:19:40 :::HCHP 11The petition stands allowed in the terms mentioned above. All pending applications, if any, stand closed.
Copy Dasti.
.
(Anoop Chitkara), Judge.
9th December, 2020 (mamta)
r to
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