Himachal Pradesh High Court
Jai Ram vs State Of Himachal Pradesh on 30 October, 2020
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No. 1795 of 2020
Decided on October 30, 2020
.
-----------------------------------------------------------------------------
Jai Ram ...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. Sumeet Raj Sharma,
Advocate.
For the respondent Mr. Arvind Sharma, Additional
Advocate General with Mr. Sunny
Dhatwalia, Deputy Advocate
r General.
-----------------------------------------------------------------------------
Sandeep Sharma, J. (Oral)
Bail petitioner, Jai Ram, who is behind bars since 12.9.2020, has approached this Court in the instant proceedings filed under S. 439 CrPC, for grant of bail in FIR No. 147, dated 12.9.2020 under Ss. 342, 354 and 323 IPC and S. 8 of Protection of Children from Sexual Offences Act registered at Police Station, Gohar, District Mandi, Himachal Pradesh. Status report field in terms of order dated 8.10.2020 reveals that on 12.9.2020, Smt. Revati Devi, grand mother of the victim, who is a minor got her statement recorded under S.154 CrPC, that on 12.9.2020, at 12.30 pm, her grand children informed her that the bail petitioner, who happens to be Chowkidar in a School, forcibly locked them in a room and thereafter took the victim to adjoining 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 30/10/2020 20:27:25 :::HCHP 2room with an intention to physically abuse her and as such, appropriate action in accordance with law be taken against the .
accused. On the basis of aforesaid statement given by above named complainant, FIR in question came to be lodged against the bail petitioner on 12.9.2020 and since then, he is behind the bars.
2. Mr. Arvind Sharma, learned Additional Advocate General, while fairly stating that the investigation in the case is complete and nothing remains to be recovered from the bail petitioner, stated that keeping in view the gravity of the offence alleged to have been committed by the bail petitioner, he does not deserve any leniency and his prayer for grant of bail may be rejected. While making this Court peruse the status report, Mr. Sharma, learned Additional Advocate General contends that there is overwhelming evidence collected on record of the case by the investigating agency suggestive of the fact that the petitioner is a habitual offender and in the past also has indulged in such activities. Mr. Sharma, further contends that otherwise also, it stands duly established on record that the bail petitioner firstly allured minor children with biscuits and toys and thereafter, made an attempt to outrage modesty of victim/physically abuse her by taking her to adjoining room, as such, his prayer for grant of bail may be rejected.
::: Downloaded on - 30/10/2020 20:27:25 :::HCHP 33. Having heard learned counsel for the parties and perused the material available on record, this Court finds that .
the complainant has categorically stated in her statement recorded under S.154 CrPC, that nothing wrong has been committed with her grand children by the bail petitioner and at this stage, the only allegation against the petitioner, who is behind bars for the last 2 and ½ months, is that he, with a view to outrage modesty/physically abuse the victim, took her to a room and offered biscuits/toys. Since at this stage, there is no prima facie evidence to demonstrate that some harm with an intention to outrage modesty of the victim, was caused by the bail petitioner, allegation, if any, with regard to attempt if any, to outrage modesty /physically abuse the victim is required to be proved in accordance with law by the investigating agency by leading cogent and convincing evidence. Mere statement of complainant that the petitioner, with a view to outrage modesty of the victim took her in a room is not sufficient to conclude complicity, if any, of the bail petitioner in the alleged offence, rather, cogent and convincing evidence is required to be led on record in this regard.
4. Leaving everything aside, this Court cannot lose sight of the fact that bail petitioner is behind bars for the last 2 and ½ months and his guilt, if any, is yet to be proved in accordance with law, as such, this Court sees no reason to let the bail petitioner ::: Downloaded on - 30/10/2020 20:27:25 :::HCHP 4 incarcerate in jail for an indefinite period during trial. Though, status report reveals that one case under Ss. 354, 326A IPC is .
already pending against the bail petitioner, but the same cannot be a ground for this Court to deny bail in the present case, especially when guilt, if any, of the bail petitioner in that case, is yet to be proved in accordance with law. Apprehension expressed by learned Additional Advocate General, that in the event of being enlarged on bail, bail petitioner may flee from justice or indulge in such offences again, can be best met by putting the bail petitioner to stringent conditions.
5. 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 ::: Downloaded on - 30/10/2020 20:27:25 :::HCHP 5 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 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 ::: Downloaded on - 30/10/2020 20:27:25 :::HCHP 6 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."
6. 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 ::: Downloaded on - 30/10/2020 20:27:25 :::HCHP 7 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 rcircumstances, 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."
7. 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 ::: Downloaded on - 30/10/2020 20:27:25 :::HCHP 8 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.
8. 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 rpunishment 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 ::: Downloaded on - 30/10/2020 20:27:25 :::HCHP 9 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 .
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."
9. 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 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.
10. In view of above, bail petitioner has carved out a case for himself. Consequently, present petition is allowed. Petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs.50,000/- with one local surety in the like amount, to the satisfaction of the Investigating Officer/learned ::: Downloaded on - 30/10/2020 20:27:25 :::HCHP 10 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 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.
11. 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.
12. 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.
Copy Dasti.
(Sandeep Sharma) Judge October 30, 2020 (vikrant) ::: Downloaded on - 30/10/2020 20:27:25 :::HCHP