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2014 DIGILAW 741 (HP)

Vijay Kumar v. State of Himachal Pradesh

2014-06-13

TARLOK SINGH CHAUHAN

body2014
JUDGMENT Tarlok Singh Chauhan, Judge (Oral). The petitioner has approached this Court under Section 438 Cr.P.C. for grant of pre-arrest bail in case FIR No. 60 of 2014 dated 31.5.2014 registered at Police Station, Bharari, District Bilaspur, H.P. under Sections 376, 506 IPC. 2. It has been pleaded that a false case has been registered against the petitioner under Section 376 IPC vide FIR No. 60 of 2014 dated 31.5.2014 at Police Station, Bharari, District Bilaspur, H.P. It is claimed that the complainant is habitual of involving innocent villagers in false cases and she has lodged cases against one Piar Singh under Section 354 IPC, who is aged about 56 years. Not only this, the complainant has recently lodged cases under Sections 354, 506 IPC against one Raman Kumar and Anju Bala and also against the present petitioner. The complainant is habitual of picking up quarrels with the Panchayat Pradhan and Members during the meeting which led to criminal case being registered against the complainant under Sections 451, 448 and 323 IPC. She attacked Anju Bala and her husband with a sickle. On 30.5.2014 the petitioner had visited the house of Raman Kumar alongwith others including Pradhan of Gram Panchayat. The complainant was locked in a room by the family members of Raman Kumar just to save their lives. When the police visited the spot, on inquiry the petitioner had told the police that the complainant was habitual of filing false complaints and she had attacked the family members of Raman Kumar. His statement was recorded by the police. The petitioner further stated that he was neither on talking nor on visiting terms with the complainant for the past three years and had been falsely implicated in the present case. 3. Pursuant to the notice issued by this Court, the records of the case have been produced alongwith the status report. 4. I have heard Mr. N.S.Chandel, learned counsel for the petitioner, Mr. R.P.Singh, learned Assistant Advocate General for the State and Mr. B.C.Negi, learned counsel for the complainant and have also gone through the status report and the records of investigations carefully. 5. Mr. R.P.Singh, learned Assistant Advocate General has vehemently argued that the petitioner is guilty of not only a serious offence but a heinous one as he is charged with rape and has sexually exploited the complainant. B.C.Negi, learned counsel for the complainant and have also gone through the status report and the records of investigations carefully. 5. Mr. R.P.Singh, learned Assistant Advocate General has vehemently argued that the petitioner is guilty of not only a serious offence but a heinous one as he is charged with rape and has sexually exploited the complainant. No doubt, the petitioner had helped the complainant while she is raising construction of the house by providing bricks, sand, cement and steel etc. but thereafter during odd hours of the night he initially raped the complainant about two years and thereafter had repeatedly raped the complainant. Therefore, in such facts and circumstances, the bail should not be granted to the petitioner. 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. 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. 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. 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) ikelihood 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. 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 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 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. Bearing in mind the aforesaid guidelines and parameters for grant of bail, one is required to see factual matrix of the present case. It is not disputed that the parties are initially well acquainted with each other and are neighbours. What appears to be rather strange is the fact that the complainant has specifically stated that for the past about 5-6 months though the complainant were not on talking terms yet she was raped by the petitioner. This rather appears to be strange and unimaginable. 11. Here it is pertinent to mention that initially the charge of rape relates back to a period of over two years when for the first time it is claimed that the petitioner had raped the complainant in her house where he had come to stay during the night on the pretext that a quarrel had taken place in his house. Further the case of the complainant is that the petitioner thereafter had been off and on coming to the house of the complainant for night stay and raping her. Further the case of the complainant is that the petitioner thereafter had been off and on coming to the house of the complainant for night stay and raping her. On such allegations, the court would not like to comment further on the conduct of the petitioner lest it prejudice the case of the prosecution. 12. Mr. B.C.Negi, learned counsel for the complainant has vehemently argued that the parameters for grant of anticipatory bail in a serious offence are required to be satisfied. He further contended that anticipatory bail could only be granted in exceptional circumstances that where the Court is prima facie of the view that the applicant had falsely been enroped in the crime and would not misuse the liberty. 13. There is no quarrel with the proposition of law canvassed by Mr. B.C.Negi, learned counsel for the complainant. The law is required to be applied not in abstract but on the factual matrix of the case. 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 investigating agency to carry out free and fair 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 or that the petitioner would in any manner 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. I find no reasonable apprehension that the petitioner would misuse his liberty. Here it may be noted that in case such instance arises, then the prosecution is always free to approach this Court for cancellation of bail. But for the present, taking into consideration the given facts and circumstances, the petitioner has made out prima-facie case for grant of pre-arrest bail. 15. The petitioner is otherwise permanent resident of District Bilaspur, Himachal Pradesh and there is hardly any probability or possibility of his fleeing from justice and moreover, for securing the presence of the petitioner, stringent conditions can always be imposed. 16. Accordingly, the interim order dated 9.6.2014 is made absolute. 15. The petitioner is otherwise permanent resident of District Bilaspur, Himachal Pradesh and there is hardly any probability or possibility of his fleeing from justice and moreover, for securing the presence of the petitioner, stringent conditions can always be imposed. 16. Accordingly, the interim order dated 9.6.2014 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. 17. The petitioner shall fully comply with the statutory conditions laid down under Section 438 of the Code of Criminal Procedure and would comply with all the conditions as contained in the order dated 9.6.2014, viz; (i) The petitioner shall furnish bail bonds in the sum of `50,000/- with one surety of the like amount to the satisfaction of the Judicial Magistrate 1st Class, Bilaspur, District Bilaspur, H.P.; (ii) the petitioner shall fully co-operate with the investigation as and when required by the Investigating Agency ; (iii) the petitioner shall not, directly or indirectly, 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 to any police officer; (iv) the petitioner shall not tamper with the prosecution evidence or threaten the witnesses; (v) the petitioner shall not leave the country without prior permission of the Court; (vi) the petitioner shall not misuse his liberty in any manner. Learned Judicial Magistrate 1st Class, Bilaspur, District Bilaspur, H.P. is directed to comply with the directions issued by the High Court, vide communication No. HHC.VIG/ Misc. Instructions/93-IV. 7139 dated 18.3.2013. 18. 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.