Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 1357 (HP)

Anil Kumar v. State of Himachal Pradesh

2017-12-08

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. 1. By way of instant bail petition filed under Section 438 Cr.PC prayer has been made for grant of bail in FIR No. 304/2017 dated 15.11.2017, under Sections 376 and 504 IPC, registered at Police Station, Sadar, District Solan, Himachal Pradesh. 2. Sequel to order dated 4.12.2017, ASI Nokh Ram has come present with the record. Mr. P.M. Negi, learned Additional Advocate General has also placed on record status report, prepared on the basis of investigation carried out by the investigating agency till date. Record perused and returned. 3. Perusal of record suggests that FIR herein above came to be registered against the bail petitioner at the behest of the complainant-prosecutrix, who alleged that the bail petitioner had met her six months back in relation to sale-purchase of some vehicle. Complainant further alleged that the bail petitioner started talking to her on her mobile phone, whereafter, they developed good relations. As per complainant, she developed physical relations with the bail petitioner, who promised to marry her in the near future. During this period, complainant-prosecutrix became pregnant and thereafter she again requested bail- petitioner to marry her, who advised the complainant to wait for some time. Since the bail petitioner was not coming forth to solemnize marriage and complainant-prosecutrix was carrying pregnancy, she threatened the bail petitioner to lodge report with the police. Thereafter, bail petitioner allegedly gave some medicine to the complainant-prosecutrix, in a cup of coffee, whereafter, complainant-prosecutrix had to get the pregnancy terminated. 4. Mr. Varun Thakur, learned counsel representing the bail petitioner, while inviting attention of this Court to the record/status report vehemently argued that no case is made out against the bail-petitioner under Sections 376 and 504 IPC, rather, it is a clear cut case of consent, as such, bail petitioner deserves to be enlarged on bail. Mr. Thakur, further contended that there is nothing on record to substantiate the allegation that bail petitioner gave some medicine in a cup of coffee to the complainant-prosecutrix, as a consequence of which, she had to abort the pregnancy. Mr. Thakur, further contended that the bail petitioner is a local resident of area and there is nothing on record, from where it can be inferred that in the event of petitioner being enlarged on bail, he shall not make himself available for trial/investigation. 5. Mr. Mr. Thakur, further contended that the bail petitioner is a local resident of area and there is nothing on record, from where it can be inferred that in the event of petitioner being enlarged on bail, he shall not make himself available for trial/investigation. 5. Mr. P.M. Negi, learned Additional Advocate General, while opposing aforesaid prayer having been made by the learned counsel for the bail petitioner for grant of bail, argued that keeping in view the conduct of the petitioner as well as gravity of offence committed by bail petitioner, he does not deserve any leniency and present petition deserves to be dismissed. Mr. Negi, further contended that it has come in the investigation that bail petitioner has been consistently meeting the complainant-prosecutrix and during this period, he sexually assaulted the complainant-prosecutrix on false assurance of marriage as such, he does not deserve to be enlarged on bail. Mr. Negi, further contended that even after passing of order dated 4.12.2017, wherein interim bail was granted to the bail petitioner, he failed to join the investigation and as such, there is every likelihood of his fleeing from justice, in the event of being enlarged on bail. 6. I have heard the learned counsel for the parties and gone through the record carefully. 7. After having carefully perused the record, this Court finds that bail petitioner was well known to the complainant-prosecutrix and he had been meeting her frequently for the last six months and during this period both of them developed intimate relations. Perusal of investigation as well as status report itself suggests that complainant-prosecutrix on the pretext of marriage herself developed physical relations with the bail petitioner. Complainant-prosecutrix is a thirty year old lady and as such, argument advanced by Mr. Negi, that bail petitioner sexually assaulted the complainant-prosecutrix on false promise of marriage, deserves to be rejected ourightly. Though, aforesaid aspect of the matter with regard to consent, if any, is to be considered and decided by the learned trial Court, on the basis of material adduced on record by the prosecution, this Court, after having carefully perused record/status report, sees no reason for custodial interrogation of the bail- petitioner, who otherwise being a local resident, shall always be available for investigation and thereafter for trial. There is nothing on record suggestive of the fact that in the event of petitioner being enlarged on bail, he may flee from justice, as such, he deserves to be enlarged on bail. 8. By now it is well settled that gravity alone cannot be 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 vs. Central Bureau of Investigation, (2012) 1 SCC 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 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 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 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 refuse bail to an un-convicted person for the propose of giving him a taste of imprisonment as a lesson.” 9. Law with regard to grant of bail is now well settled. The Apex Court in Siddharam Satlingappa Mhetre vs. 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. (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. 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.” (Emphasis supplied) 10. Hon'ble Apex Court, in Sundeep Kumar Bafna vs. State of Maharashtra, (2014) 16 SCC 623 , has held as under:- “8. Some poignant particulars of Section 437 Cr.PC may be pinpointed. First, whilst Section 497(1) of the old Code alluded to an accused being “brought before a Court” the present provision postulates the accused being “brought before a Court other than the High Court or a Court of Session” in respect of the commission of any non-bailable offence. Some poignant particulars of Section 437 Cr.PC may be pinpointed. First, whilst Section 497(1) of the old Code alluded to an accused being “brought before a Court” the present provision postulates the accused being “brought before a Court other than the High Court or a Court of Session” in respect of the commission of any non-bailable offence. As observed in Gurcharan Singh vs. State (Delhi Admn.) (1978) 1 SCC 118 , there is no provision in the Cr.PC dealing with the production of an accused before the Court of Session or the High Court. But it must also be immediately noted that no provision categorically prohibits the production of an accused before either of these Courts. The Legislature could have easily enunciated, by use of exclusionary or exclusive terminology, that the superior Courts of Sessions and High Court are bereft of this jurisdiction or if they were so empowered under the Old Code now stood denuded thereof. Our understanding is in conformity with Gurcharan Singh, as perforce it must. The scheme of the Cr.PC plainly provides that bail will not be extended to a person accused of the commission of a non-bailable offence punishable with death or imprisonment for life, unless it is apparent to such a Court that it is incredible or beyond the realm of reasonable doubt that the accused is guilty. The enquiry of the Magistrate placed in this position would be akin to what is envisaged in State of Haryana vs. Bhajan Lal, 1992 (Supp) 1 SCC 335, that is, the alleged complicity of the accused should, on the factual matrix then presented or prevailing, lead to the overwhelming, incontrovertible and clear conclusion of his innocence. Cr.PC severely curtails the powers of the Magistrate while leaving that of the Court of Session and the High Court untouched and unfettered. It appears to us that this is the only logical conclusion that can be arrived at on a conjoint consideration of Sections 437 and 439 of the Cr.PC. Obviously, in order to complete the picture so far as concerns the powers and limitations thereto of the Court of Session and the High Court, Section 439 would have to be carefully considered. And when this is done, it will at once be evident that the Cr.PC has placed an embargo against granting relief to an accused, (couched by us in the negative), if he is not in custody. And when this is done, it will at once be evident that the Cr.PC has placed an embargo against granting relief to an accused, (couched by us in the negative), if he is not in custody. It seems to us that any persisting ambivalence or doubt stands dispelled by the proviso to this Section, which mandates only that the Public Prosecutor should be put on notice. We have not found any provision in the Cr.PC or elsewhere, nor have any been brought to our ken, curtailing the power of either of the superior Courts to entertain and decide pleas for bail. Furthermore, it is incongruent that in the face of the Magistrate being virtually disempowered to grant bail in the event of detention or arrest without warrant of any person accused of or suspected of the commission of any non-bailable offence punishable by death or imprisonment for life, no Court is enabled to extend him succour. Like the science of physics, law also abhors the existence of a vacuum, as is adequately adumbrated by the common law maxim, viz. where there is a right there is a remedy. The universal right of personal liberty emblazened by Article 21 of our Constitution, being fundamental to the very existence of not only to a citizen of India but to every person, cannot be trifled with merely on a presumptive plane. We should also keep in perspective the fact that Parliament has carried out amendments to this pandect comprising Sections 437 to 439, and, therefore, predicates on the well established principles of interpretation of statutes that what is not plainly evident from their reading, was never intended to be incorporated into law. Some salient features of these provisions are that whilst Section 437 contemplates that a person has to be accused or suspect of a non-bailable offence and consequently arrested or detained without warrant, Section 439 empowers the Session Court or High Court to grant bail if such a person is in custody. The difference of language manifests the sublime differentiation in the two provisions, and, therefore, there is no justification in giving the word ‘custody’ the same or closely similar meaning and content as arrest or detention. The difference of language manifests the sublime differentiation in the two provisions, and, therefore, there is no justification in giving the word ‘custody’ the same or closely similar meaning and content as arrest or detention. Furthermore, while Section 437 severally curtails the power of the Magistrate to grant bail in context of the commission of non-bailable offences punishable with death or imprisonment for life, the two higher Courts have only the procedural requirement of giving notice of the Bail application to the Public Prosecutor, which requirement is also ignorable if circumstances so demand. The regimes regulating the powers of the Magistrate on the one hand and the two superior Courts are decidedly and intentionally not identical, but vitally and drastically dissimilar. Indeed, the only complicity that can be contemplated is the conundrum of ‘Committal of cases to the Court of Session’ because of a possible hiatus created by the Cr.P.C.” 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 also, normal rule is of bail and not jail. Apart from above, 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 Apex Court in Prasanta Kumar Sarkar vs. 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. 13. In view of above, interim order dated 4.12.2017, is made absolute, subject to the petitioner furnishing fresh bail bonds in the sum of Rs. (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. 13. In view of above, interim order dated 4.12.2017, is made absolute, subject to the petitioner furnishing fresh bail bonds in the sum of Rs. 20,000/- with a surety in the like amount, to the satisfaction of the Investigating Officer concerned, besides 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. (d) He shall not leave the territory of India without the prior permission of the Court. (e) Petitioner shall join investigation at 10.00 AM on 9.12.2017 in the Police Station concerned. 14. 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. 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. 16. The petition stands accordingly disposed of.