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2014 DIGILAW 417 (HP)

Kalyan Singh v. State of Himachal Pradesh

2014-04-21

TARLOK SINGH CHAUHAN

body2014
Judgment Tarlok Singh Chauhan, J. 1. The petitioner has approached this Court for grant of anticipatory bail in connection with case FIR No.22/2014 dated01.03.2014, registered under Sections 376, 506, 354-D of the Indian Penal Code, at Police Station, Sadar Nahan, District Sirmaur. 2. The status report has been presented by the learned Additional Advocate General, wherein, it was alleged that the petitioner was not only a neighbour, but a distant cousin of the complainant and about six months back, the petitioner had allured the complainant by exploiting her poverty and assured that he would pay for her educational expenses and would obtain a loan for that purpose in case she accompanied him to the town. The parents of the complainant permitted the complainant to accompany the petitioner to the town. 3. It is the further case of the prosecution that initially the petitioner assured the complainant that he would get government grant for the educational expenses of the complainant, but after about one month the complainant was constrained to join the computer classes at Dadahu. During this period, the petitioner brought some forms to her for the purpose of getting job and assured her that he would get her a job. Thereafter, the petitioner forcibly committed sexual assault on the complainant. This continued for about six months despite strong opposition from the complainant. Ultimately, the complainant came back to her home and informed the police about the aforesaid incident and also informed that the petitioner had made certain video recordings in his mobile phone on the basis of which he had been blackmailing the complainant. On the complaint of the complainant’s parents regarding this incident, the petitioner straightaway said that their daughter i.e. complainant had been kept by him for time pass. 4. The further version of the prosecution story is that the petitioner thereafter contacted the complainant and informed her that he had a roll number and incase she desired the same, she should meet the petitioner. The petitioner thereafter on the pretext of handing over the roll number, asked the complainant to accompany him in a hotel where he blackmailed the complainant on the pretext that he had certain video recordings and would post them on the internet incase she did not accompany him to the hotel. The petitioner thereafter on the pretext of handing over the roll number, asked the complainant to accompany him in a hotel where he blackmailed the complainant on the pretext that he had certain video recordings and would post them on the internet incase she did not accompany him to the hotel. The petitioner took the complainant forcibly under threat to the hotel where the petitioner after having been under heavy intoxication committed sexual assault and in the morning left the complainant in the hotel on the pretext of his attending a meeting. 5. During hearing of the petition, it was candidly admitted by the prosecution that as per the findings of the Forensic Laboratory, no video recordings were found in the mobile phone of the petitioner. It was not disputed that the petitioner has joined the investigation as and when called for. The learned Additional Advocate General has contended that the petitioner is an accused of very serious and heinous offence and, therefore, cannot be enlarged on bail. 6. On the other hand, Shri Karan Singh Kanwar, learned counsel for the petitioner, has vehemently argued that the petitioner was not a stranger to the complainant. Infact, it was the complainant, who had been writing endless letters to the petitioner, some of which have been placed on record. The complainant in these letters had expressed her unending love towards the petitioner. It is admitted case that the petitioner is a divorcee while the complainant is a spinster and they were not strangers as can be gathered from the letters placed on the record. 7. 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 subsection (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. 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." 8. 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. (viii) Danger, of course, of justice being thwarted by grant of bail. 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 guidelines 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 guidelines 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 repeatsimilar 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. 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. (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 consideredand 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. 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 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. 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 thediscretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. 40. The grant or refusal to grant bail lies within thediscretion 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. In this backdrop, one has to see factual matrix of the present case. A perusal of the letters placed on record by the petitioner, which are admittedly in the handwriting of the complainant, would reveal that she had deep love for the petitioner and this is probably the precise reason why the complainant had remained with the petitioner for a period of nearly six months and had indulged in physical relationship. 11. Whether at the time of physical relationship, the petitioner had obtained consent by inducement or by misconception of facts is the question which needs consideration during the trial, but, prima facie, at this stage, it cannot be said with certainty that it was so. 12. 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. But ultimately, it is woman herself who is the protector of her own body. Promise to marry may or may not culminate into 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.” 13. The only pretext on which the complainant had claimed to have been blackmailed was on account of the alleged video recordings in the mobile phone of the petitioner which have not been found to be existing as per report of the F.S.L. 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. 14. 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. In the given facts and circumstances, the petitioner has made out a prima facie case for grant of pre-arrest bail. The petitioner is a permanent resident of District Sirmaur, Himachal Pradesh and is, otherwise, working though on contact basis in a government department 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 06.03.2014, as extended from time to time, is made absolute. The petitioner shall be on bail till the challan is presented in the Court for trial whereafter he shall approach the Court for grant of regular bail in accordance with law. 15. can always be imposed. Accordingly, the interim order dated 06.03.2014, as extended from time to time, is made absolute. The petitioner shall be on bail till the challan is presented in the Court for trial whereafter he shall approach the Court for grant of regular bail in accordance with law. 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 06.03.2014, viz. (i) The petitioner shall furnish bail bonds in the sum of Rs. 25,000/- with one surety of the like amount to the satisfaction of the Judicial Magistrate Ist Class, Nahan. (ii) It is clarified that 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. Learned Judicial Magistrate 1st Class, Nahan, 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. Copy dasti.