Himachal Pradesh High Court
Naveen Kumar vs State Of Himachal Pradesh on 16 December, 2020
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr.MP(M) No.1911 of 2020
Decided on: 16.12.2020
.
__________________________________________________________
Naveen Kumar ........ Petitioner
Versus
State of Himachal Pradesh .....Respondent
_________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the petitioner: Ms. Anjli Soni Verma and Mr. Sanjay Kumar
Advocates, through video-conferencing.
For the respondent: Mr. Arvind Sharma, Additional Advocate
General, through video-conferencing.
Mr. Kulwant Singh Gill, Advocate, for the
complainant, through video-conferencing.
__________________________________________________________
Sandeep Sharma, Judge (oral):
Sequel to order dated 30.10.2020, whereby bail petitioner was ordered to be enlarged on interim bail in the event of his arrest in case FIR No.26/2020, dated 20.9.2020, under sections 376, 384, 506 and 201 of IPC, registered at Women Police Station, Dharamshala, District Kangra, H.P., Mr. Arvind Sharma, learned Additional Advocate General has placed on record status report prepared on the basis of the investigation carried out by the Investigating Agency. Record perused and returned.
2. Close scrutiny of the status report/record reveals that on 20.09.2020, victim/prosecutrix aged 31 years, (name withheld to protect her identity), lodged a complaint at Women Police 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 18/12/2020 20:16:48 :::HCHP 2Station, Dharamshala, District Kangra, Himachal Pradesh, alleging therein that since the year, 2013, her relation with her husband was not cordial and in the year, 2014 she alongwith her .
daughter and father started living separately. She stated that in June, 2014, she went to Delhi in the search of job and stayed at the house of her sister at Karampura, Delhi and came into the contact of present bail petitioner. She alleged that bail petitioner, who had introduced himself to be unmarried developed physical relation with her and clicked her objectionable photographs. She alleged that factum with regard to clicking of photographs and video clips came to her knowledge from her relative namely Ravi. She alleged that bail petitioner after having clicked her objectionable photographs and videos kept on blackmailing her and in this manner, extorted huge amount from her. She alleged that bail petitioner purchased one car bearing registration No.HR-95-1144 in the name of his brother, but made her to pay its EMI. She alleged that when she asked bail petitioner to delete her photographs and videos, bail petitioner called her in a Hotel at Kangra and sexually assaulted her against her wishes. She alleged that again on 28th February, 2020, bail petitioner called her at Apple Regency, Shimla and raped her. She alleged that before 28.2.2020, bail petitioner ::: Downloaded on - 18/12/2020 20:16:48 :::HCHP 3 had also called her at Hotel Firhill and Hotel Apple Rose at Shimla and sexually assaulted her against her wishes. She alleged that bail petitioner extorted sum of Rs.10 lac by using her ATM and she .
was also compelled to sell her gold ornaments bearing 250 grams and as such, appropriate action in law may be taken against him.
In the aforesaid background, FIR, as detailed hereinabove, came to be lodged against the bail petitioner. Initially on 20.9.2020, bail petitioner after having obtained interim bail order from the Court of learned Additional Sessions Judge-I, Kangra at Dharamshala, H.P., joined the investigation but subsequently such application of him was dismissed and he was compelled to approach this Court in the instant proceedings.
3. Mr. Arvind Sharma, learned Additional Advocate General while fairly admitting the factum with regard to joining of investigation by the bail petitioner pursuant to order dated 30.10.2020, contends that though bail petitioner has joined the investigation and challan stands filed in the competent court of law, but keeping in view the gravity of the offence alleged to have been committed by him, prayer having been made on his behalf for grant of bail deserves outright rejection. While making this Court to peruse the status report, learned Additional Advocate General ::: Downloaded on - 18/12/2020 20:16:48 :::HCHP 4 contends that there is overwhelming evidence available on record suggestive of the fact that bail petitioner taking undue advantage of innocence of the victim/prosecutrix not only sexually assaulted .
her repeatedly against her wishes, rather also extorted huge amount of money and as such, it would not be in the interest of justice to enlarge him on bail at this stage because in the event of his being enlarged on bail, he may not only flee from justice, but may also tamper with the prosecution witnesses.
4. Mr. Kulwant Singh Gill, learned counsel representing the complainant submits that evidence collected on record by the Investigating Agency clearly indicates that bail petitioner not only blackmailed and extorted money from the victim/ prosecutrix but also extended threats to the victim/prosecutrix that in case his demand are not met, he would upload her objectionable photographs and videos in the social media. Mr. Gill, further contends that since there is threat to the life of the victim/prosecutrix from the bail petitioner, it would not be in the interest of justice to enlarge him on bail and as such, his application for grant of bail may be rejected.
5. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that ::: Downloaded on - 18/12/2020 20:16:48 :::HCHP 5 the victim/prosecutrix has been in constant touch with the bail petitioner since June, 2014 and at no point of time bail petitioner compelled her to join his company. It is none of the allegation of the .
victim/prosecutrix that in June,2014 bail petitioner sexually assaulted her against her wishes, rather it is admitted case of the victim/prosecutrix that bail petitioner after having introduced himself as unmarried developed physical relation with her. There is no material worth credence available on record that immediately after the alleged incident in June, 2014, complaint, if any, ever came to be lodged at the behest of the victim/prosecutrix against the bail petitioner, rather statements of the victim/prosecutrix recorded under Sections 154 and 164 Cr.P.C., clearly reveal that even after June, 2014 victim/prosecutrix had been meeting bail petitioner and during this period they had developed physical relation. Though, victim/prosecutrix has claimed that she was being blackmailed, but it is not understood that once relations of victim/ prosecutrix and bail petitioner had worsen, what prevented her to lodge complaint with the police at the very threshold and why thereafter she kept on meeting bail petitioner. Very own admission of the victim/prosecutrix that on 28.9.2020, she on the askance of the bail petitioner had come to Apple Regency Hotel, ::: Downloaded on - 18/12/2020 20:16:48 :::HCHP 6 Shimla and thereafter at Firhil Hotel Shimla, compels this Court to infer that the victim/prosecutrix of her own volition and without there being any external pressure had been joining the company of .
the bail petitioner. Though, there is allegation that bail petitioner for the purchase of car made victim/prosecutrix to pay EMI, but investigation reveals that payment, if any, for purchase of vehicle in question was not made directly by the victim/prosecutrix, rather same was made though person namely Vinay Mishra, whose account details are yet to be collected on record. Investigation reveals that margin money for the payment of car in question was paid by the father of the bail petitioner, whereas remaining amount was got financed through Magna Finance Corporation. There is no material available on record suggestive of the fact that EMI from the account of the victim/prosecutrix was paid to Magma Finance Corporation.
6. Leaving everything aside, this Court having taken note of the conduct of the victim/prosecutrix, which is quite apparent from her statements recorded under sections 154 and 164 Cr.P.C, is unable to accept that bail petitioner took undue advantage of the innocence of the victim/ prosecutrix and it cannot be concluded that the victim/prosecutrix, who is 31 years old, was incapable of ::: Downloaded on - 18/12/2020 20:16:48 :::HCHP 7 understanding the consequences of her being in the company of the bail petitioner, with whom she had acquaintance since the .
year, 2014.
7. Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court on the basis of totality of evidence collected on record by the investigating agency, but having noticed aforesaid glaring aspect of the matter, this Court sees no reason for the custodial interrogation of the bail petitioner, who has otherwise joined the investigation and nothing remains to be recovered from him.
8. It has been repeatedly held by Hon'ble Apex Court as well as this Court in catena of cases that one is deemed to be innocent till the time his /her guilt is not proved, in accordance with law. In the case at hand, the guilt, if any, of the bail petitioner is yet to be proved, in accordance with law. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioner 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 admitted by learned counsel representing the petitioner.
::: Downloaded on - 18/12/2020 20:16:48 :::HCHP 89. 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 ::: Downloaded on - 18/12/2020 20:16:48 :::HCHP 9 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 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 ::: Downloaded on - 18/12/2020 20:16:48 :::HCHP 10 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:-
" 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 ::: Downloaded on - 18/12/2020 20:16:48 :::HCHP 11 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.
12. 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;::: Downloaded on - 18/12/2020 20:16:48 :::HCHP 12
(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, order dated 30.10.2020 passed by this Court, is made absolute, subject to his furnishing personal bond in the sum of Rs. 2,00,000/- (Rs. two lac) with two local sureties 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.
e. He shall surrender passport, if any, held by him.
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.::: Downloaded on - 18/12/2020 20:16:48 :::HCHP 13
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.
Copy dasti.
(Sandeep Sharma),
Judge
16th December, 2020
(shankar)
r to
::: Downloaded on - 18/12/2020 20:16:48 :::HCHP