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Himachal Pradesh High Court · body

2014 DIGILAW 1387 (HP)

Vikas Kumar v. State of Himachal Pradesh

2014-10-09

TARLOK SINGH CHAUHAN

body2014
Judgment Tarlok Singh Chauhan, J. The petitioner has approached this Court under Section 438 Cr.P.C. for grant of anticipatory bail in connection with FIR No. 116 of 2014 dated 23.9.2014 registered at Police Station, Chotta Shimla, under Section 376 IPC. 2. Records of the investigation have been made available to the court and the learned Additional Advocate General has also filed status report. 3. The case of the prosecution appears to be that the complainant lodged a complaint alleging therein that she after qualified B.Sc was pursuing her MBA when she came in contact with the petitioner, who was also studying with her. After completion of MBA, both of them were appointed at Baddi in different Companies and in Shimla and Baddi both were residing in same address and it is claimed that the petitioner raped her on the assurance that he will marry her. In fact, they performed temple marriage in the presence of friends of the prosecutrix near her residence at Shimla and photographs of the same were also taken by mobile phone. After some time, the petitioner got a job at Chandigarh and after his posting there, he told the prosecutrix that his parents were not agreeable to their marriage. It is on these allegations that the aforesaid FIR came to be registered against the petitioner. 4. I have heard learned counsel for the parties and have also gone through the records carefully. 5. The learned Additional Advocate General has strenuously contended that the petitioner is an accused of having committed a serious offence and therefore, he does not deserve to be enlarged on bail. While on the other hand, Mr. B.L. Soni, assisted by Mr. Aman Parth Sharma, Advocate, learned counsel for the petitioner has strenuously argued that the petitioner has been falsely roped in this case and the prosecution has taken undue advantage of the fact that the petitioner was known to her. 6. The law with regard to grant of bail is now well settled. As early as in the year 1978, the Hon’ble Supreme Court in Gurcharan Singh vs. State (Delhi Administration) (1978) 1 SCC 118 laid the following criteria for grant of bail: "22. In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail subject to sub- section (3) of Section 437 CrPC if it deems necessary to act under it. In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail subject to sub- section (3) of Section 437 CrPC if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437(1) CrPC and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence. ****** 24. Section 439(1) CrPC of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437(1) there is no ban imposed under Section 439(1), CrPC against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1) CrPC of the new Code. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1) CrPC of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437(1) and Section 439(1) CrPC of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out." 7. The Hon’ble 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. 8. Thereafter, in a detailed judgment, the Hon’ble Supreme Court in Siddharam Satlingappa Mhetre versus State of Maharashtra and others, (2011) 1 SCC 694 , while relying upon its decision rendered by its Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565 , laid down the following parameters for grant of bail:- “111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelies in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelies in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. 112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or the other offences. (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record. 114. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the Judge concerned, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. If a wise discretion is exercised by the Judge concerned, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the court of Sessions or the High Court is always available.” (Emphasis supplied) 9. In Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40 , the Hon’ble Supreme Court made the following pertinent observations in paras 21, 22, 23, and 40 as under:- “21. In bail applications, generally, it has been laid down from the earliest times that 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 is 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. 22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted 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 this country, 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. 23. 23. Apart from the question of prevention being the object of a 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 un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. 40. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.” 10. Now, when the factual matrix of the case is seen, it is apparent that the complainant and the petitioner are no strangers and may have indulged in physical relationship. But whether at the time of such physical relationship the petitioner had obtained the consent by inducement or misconception of facts is a question which can only be proved during trial. 11. In this background, I am tempted to quote the observations made by the Hon’ble Single Judge of the Delhi High Court in dealing with the Bail Application No.2145/2009 titled Mohd. Iqbal versus State, wherein following observations were made:- “There is an old Jewish saying “if you are close when you should be distant, you will be distant when you should be close”. It is for both man and woman to restrain themselves and not to indulge in intimate activities prior to the marriage. Undoubtedly it is responsibility, moral & ethical, both, on the part of men not to exploit any woman by extending false promise or through devious acts to force or induce the girl for sexual relationship. It is for both man and woman to restrain themselves and not to indulge in intimate activities prior to the marriage. Undoubtedly it is responsibility, moral & ethical, both, on the part of men not to exploit any woman by extending false promise or through devious acts to force or induce the girl for sexual relationship. But ultimately, it is woman herself who is the protector of her own body. Promise to marry may or may not culminate into marriage. It is the prime responsibility of the woman in the relationship or even otherwise to protect her honour, dignity and modesty. A woman should not throw herself to a man and indulge in promiscuity, becoming source of hilarity. It is for her to maintain her purity, chastity and virtues.” 12. The facts of the case reflect that it is one such case where for some reasons the relationship inter se the parties has not only turned sour but has turned bitter. No doubt, the offence for which the petitioner has been charged is of grave and serious nature, but then a balance has to be struck between the rights of the petitioner and rights of the police to carry out free and fair police investigation. 13. On the basis of the records, it cannot be said that the petitioner would in any manner impede the course and cause of justice, the petitioner in any manner would hamper the free, fair and full investigation, whether ultimately the petitioner would be convicted for the offences in question, will have to be determined during the course of the trial after complete material is placed on record by the parties. 14. In the given facts and circumstances, the petitioner has made out a prima facie case for grant of bail. The petitioner is a permanent resident of Village and Post Office Sunhani, Tehsil Jhandutta, District Bilaspur, H.P. and, therefore, there is no probability of his fleeing from the justice and otherwise also stringent conditions for securing his presence for the purpose of investigation, trial etc. can always be imposed. Accordingly, the interim order dated 26.9.2014, is made absolute. 15. The petitioner is a permanent resident of Village and Post Office Sunhani, Tehsil Jhandutta, District Bilaspur, H.P. and, therefore, there is no probability of his fleeing from the justice and otherwise also stringent conditions for securing his presence for the purpose of investigation, trial etc. can always be imposed. Accordingly, the interim order dated 26.9.2014, is made absolute. 15. Needless to add, the petitioner shall fully comply with the statutory conditions laid down under Section 438 of the Criminal Procedure Code and would comply with all the conditions as contained in the order dated 26.9.2014, viz; (i) the petitioner shall furnish bail bond in the sum of `25,000/- with one surety of the like amount to the satisfaction of the Judicial Magistrate Ist Class, Court No.1, Shimla; (ii) the petitioner shall fully co-operate with the investigation; (iii) he will not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; (iv) he shall not make any inducement, threat or promise 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; (v) he shall not leave the country without prior permission of the Court. (vi) he shall not misuse his liberty in any manner. Learned Judicial Magistrate Ist Class, Court No.1, Shimla is directed to comply with the directions issued by the High Court, vide communication No. HHC.VIG./Misc. Instructions/93-IV. 7139 dated 18.03.2013. 16. Any observation made hereinabove shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made hereinabove. Petition stands disposed of.