Himachal Pradesh High Court
_____________________________________________________________________ vs State Of Himachal Pradesh on 28 February, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Cr.MP(M) No. 177 of 2023
Date of Decision: 28.2.2023
_____________________________________________________________________
Abhinay Sood
.........Petitioner
Versus
State of Himachal Pradesh
.......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
For the Petitioner: Mr. N.K. Thakur, Senior Advocate with Mr.
R.S.Verma, Ms. Ritu Singh and Mr. Divya Raj
Singh, Advocates.
For the Respondents: Mr. Anup Rattan, Advocate General, with Mr.
Rajan Kahol and Mr. Vishal Panwar, Additional
Advocates General.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
By way of instant petition filed under Section 439 Cr.PC, prayer has been made by the bail petitioner for grant of regular bail in case FIR No. 111 of 2022 dated 26.9.2022, under Sections 376 and 506 of IPC and Sections 6 and 12 of POCSO Act, registered at PS Gagret, District Una, H.P. ::: Downloaded on - 01/03/2023 20:32:44 :::CIS 2
2. Respondent State has filed the status report in terms of order .
dated 20.1.2023 and ASI Shashi Pal, PS Gagret, District Una, has also come present with records. Records perused and returned.
3. Perusal of status report/record reveals that on 26.9.2022, police station Gagret received a complaint regarding sexual harassment from victim-prosecutrix (name withheld), wherein she alleged that present bail petitioner, who at that relevant time was teacher at Government Degree College Daulatpur, Una, has been sexually harassing her against her wishes. Complainant alleged that bail petitioner repeatedly harassed her and when she objected, he threatened to award less marks in the internals.
She alleged that subsequently, she was suspended from the class by the bail petitioner. Victim-prosecutrix also alleged that taking undue advantage of her innocence and minority, bail petitioner repeatedly sexually assaulted her against her wishes and also clicked her obscene photos. After having received aforesaid complaint, police recorded the statement of victim-prosecutrix under Section 161 CrPC on 27.9.2022, wherein she alleged that in the month of April, 2022, she was raped forcibly against her wishes at Kohinoor Hotel, Una. In the aforesaid background, police lodged FIR detailed hereinabove against the bail petitioner under Sections 376 & 506 IPC and Sections 6 and 12 of the POCSO Act.
::: Downloaded on - 01/03/2023 20:32:44 :::CIS 34. Apprehending his arrest, petitioner approached this Court by .
way of anticipatory bail filed under Section 438 CrPC, but same was dismissed as withdrawn, as a result of which, bail petitioner surrendered before the police on 17.10.2022 and since then, he is behind the bars.
Since investigation in the case is complete and challan stands filed in the competent court of law, bail petitioner has approached this Court in the instant proceedings for grant of regular bail.
5. Mr. Rajan Kahol, learned Additional Advocate General while fairly admitting factum with regard to filing of the Challan in the competent court of law contends that though nothing remains to be recovered from the bail petitioner, but keeping in the gravity of offence alleged to have been committed by the bail petitioner, he does not deserve any leniency and as such, it may not be in the interest of justice to enlarge him on bail. While making this Court peruse record, learned Additional Advocate General attempted to persuade this Court to agree with his contention that bail petitioner taking undue advantage of victim-prosecutrix not only extended threats and spoiled her career, but also committed rape upon her against her wishes and as such, it cannot be said that bail petitioner has been falsely implicated. While making this Court peruse medical evidence adduced on record, Mr. Rajan Kahol, learned Additional Advocate General, ::: Downloaded on - 01/03/2023 20:32:44 :::CIS 4 states that there is overwhelming evidence suggestive of the fact that .
victim-prosecutrix was subjected to forcible sexual intercourse. Lastly, learned Additional Advocate General submits that since statement of victim-prosecutrix is yet to be recorded in the trial court, it may not be in the interest of justice to enlarge the bail petitioner on bail because in that eventuality, he may not only flee from justice, but may also cause harm to the victim-prosecutrix.
6. Mr. N.K. Thakur, Senior Advocate, duly assisted by Ms. Ritu Singh, Advocate, while refuting the aforesaid submissions made by the learned Additional Advocate General contends that bare perusal of evidence collected on record clearly reveals that bail petitioner has been falsely implicated. He submits that as per material available on record by the investigating agency, victim-prosecutrix and bail petitioner had prior acquaintance and they had been talking and meeting each other frequently.
Mr. Thakur, states that perusal of Whatsapp Chat placed on record itself suggest that victim-prosecutrix was in love with the bail petitioner, who at that relevant time was teaching in the college, where victim-prosecutrix was studying. While disputing report of MLC and RFSL adduced on record by the investigating agency, Mr. Thakur, states that though allegation of forcible sexual intercourse, if any, is yet to be established on record, but ::: Downloaded on - 01/03/2023 20:32:44 :::CIS 5 even otherwise statement of victim-prosecutrix recorded under Sections .
161 and 164 CrPC clearly reveal that she of her own volition and without there being any external pressure joined the company of the bail petitioner and at no point of time, objected to his company. Lastly, Mr. Thakur submits that since challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner, no fruitful purpose would be served by keeping him behind the bars for indefinite period, rather in that eventuality, entire career of the bail petitioner would be ruined.
7. Having heard learned counsel for the parties and perused material available on record, especially statements of victim-prosecutrix recorded under Sections 161 and 164 Cr.PC, this Court finds that victim-
prosecutrix was studying in a college, where present bail petitioner was teacher. Whatsapp chat adduced on record by the investigating agency clearly suggests that both the bail petitioner and victim-prosecutrix had been meeting and talking to each others frequently. Whatsapp chat available on record further suggests that victim-prosecutrix was in love with the bail petitioner, who being a teacher had been guiding and mentoring the victim-prosecutrix. Though victim-prosecutrix alleged that while she was minor in the month of December, 2021, she was subjected to ::: Downloaded on - 01/03/2023 20:32:44 :::CIS 6 forcible sexual intercourse against her wishes, but it is not understood that .
if it was so, where was the occasion for her to again join the company of the bail petitioner in April, 2022, when allegedly, bail petitioner again sexually assaulted her against her wishes at Kohinoor Hotel. Interestingly, at no point of time, complaint, if any, ever came to be lodged to the police or parents by the victim-prosecutrix with regard to the alleged incident of forcible sexual intercourse in the month of December, 2021 and April, 2022. It is only after seven months of the alleged incident in the month April, 2022, victim-prosecutrix made complaint to the Principal of the College that she is being mentally tortured by the bail petitioner. There is no material available on record suggestive of the fact that prior to 26.9.2022, complaint, if any, was ever made by the victim-prosecutrix to the Principal or any of the teacher concerned with regard to indecent behaviour, if any, of the present bail petitioner. As per own case of the victim-prosecutrix, while she was studying in 3rd Semester in BCA, present bail petitioner suspended her from the class and only permitted her to re-
join the class when she agreed to talk to him, however, interestingly, even at that stage, victim-prosecutrix chose not to lodge complaint, if any, with the college administration or her parents or police. Though victim-
prosecutrix claimed that once she tried to bring the matter to the notice of ::: Downloaded on - 01/03/2023 20:32:44 :::CIS 7 her classmate, bail petitioner tried to hit her, however, interestingly, no .
statement of classmate, before whom, bail petitioner tried to hit victim-
prosecutrix, was ever recorded. As per statement of victim-prosecutrix given to the Judicial Magistrate, when she stopped talking to the bail petitioner, he entered her house and told her parents that she has spoiled his life, meaning thereby, factum with regard to intimacy/relationship, if any, inter-se bail petitioner and victim-prosecutrix was very much in the knowledge of her parents, but yet they chose not to lodge any complaint.
8. Having carefully perused the entire material available on record, this Court is not persuaded to agree with learned Additional Advocate General that bail petitioner taking undue advantage of her minority and innocence compelled her to join his company, rather material suggests something else. One of the Whatsapp Chat suggests that bail petitioner was not very much interested to go ahead with the relationship, if any, inter-se him and victim-prosecutrix, but yet victim-prosecutrix wanted to pursue such relationship being one sided love. No doubt, at the time of the first incident of sexual harassment in December, 2021, victim-
prosecutrix was minor having age of 17 years 11 months and 28 days (Date of Birth 1.1.2004), but having noticed the conduct of the victim-
prosecutrix, which is apparent from the record, this Court is not persuaded ::: Downloaded on - 01/03/2023 20:32:44 :::CIS 8 to agree with learned Additional Advocate General that bail petitioner .
compelled her to join his company, rather she of her own volition and without there being any external pressure joined his company on different dates. Moreover, two other incidents i.e. February, 2022 and April, 2022, allegedly happened when victim-prosecutrix was major. Since victim-
prosecutrix after being mentally and physically tortured in December, 2021 by the bail petitioner failed to lodge the complaint and thereafter, again joined the company of the bail petitioner in February and April, 2022, it cannot be said that victim-prosecutrix was being harassed mentally and physically. Even after April, 2022, it took almost 5-6 months for the victim-
prosecutrix to lodge complaint that too with the principal of the college. At this stage, learned Additional Advocate General while referring to the medical evidence adduced on record vehemently argued that factum with regard to sexual act duly stands established on record, but he was unable to answer the query of the court that how after 5-6 months, DNA of bail petitioner could be obtained from the undergarment of the victim-
prosecutrix, which she had admittedly changed as has been categorically recorded by the doctor while medically examining her on 28.9.2022. As per own case of the victim-prosecutrix, lastly she was sexually assaulted against her wishes in April, 2022, whereas her undergarments were taken ::: Downloaded on - 01/03/2023 20:32:44 :::CIS 9 into possession by the police authorities for sending the same for chemical .
analysis on 28.9.2022.
9. Though case at hand is to be decided by the court below in the totality of evidence collected on record by the investigating agency, but having taken note of the aforesaid aspects of the matter, this Court sees no reason to curtail the freedom of the bail petitioner for indefinite period during trial, especially when challan stands filed in the competent court of law and nothing remains to be recovered from him. Hon'ble Apex Court as well as this Court in catena of cases have repeatedly held that one is deemed to be innocent till the time guilt, if any, of his/her is not proved in accordance with law. In the case at hand also, guilt, if any, of the accused is yet to be proved in accordance with law, by leading cogent and convincing material on record. Apprehension expressed by the learned Additional Advocate General that in the event of petitioner's being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions as has been fairly stated by the learned counsel for the petitioner.
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 ::: Downloaded on - 01/03/2023 20:32:44 :::CIS 10 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.
11. 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 cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has been further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty.
12. Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held 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.
::: Downloaded on - 01/03/2023 20:32:44 :::CIS 1113. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC .
218, Hon'ble Apex Court has held that the 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, character of the accused, circumstances which are peculiar to the accused involved in that crime.
14. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced.
15. 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. 1,00,000/- with one local surety in the like amount to the ::: Downloaded on - 01/03/2023 20:32:44 :::CIS 12 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 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.
16. 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.
17. 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.
18. The petitioner is permitted to produce copy of the order downloaded from the High Court Website and the trial court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.
February 28, 2023 (Sandeep Sharma),
(manjit) Judge
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