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Himachal Pradesh High Court · body

2017 DIGILAW 1407 (HP)

Madan Lal v. State of Himachal Pradesh

2017-12-18

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. 1. By way of instant bail petition filed under Section 439 CrPC, prayer has been made for grant of bail in FIR No. 170/11 dated 13.7.2011, under Sections 376, 323 and 506 IPC, registered at Police Station, Jawali, District Kangra, Himachal Pradesh. 2. Sequel to order dated 11.12.2017, ASI Gurdhian Singh has come present with the record. Mr. M.L. Chauhan, 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 the status report/record suggests that FIR mentioned herein above came to be registered against the bail petitioner at the behest of the complainant-prosecutrix, who alleged that in the year 2010, bail petitioner met her and proposed to marry her. Complainant-prosecutrix, though disclosed to him that she belongs to a lower Caste, as such, marriage inter se them may not be possible, however, bail petitioner, who also belongs to an Other Backward Class (OBC), eloped with the complainant prosecutrix on the pretext that he will marry her. As per complainant-prosecutrix, bail petitioner sexually assaulted her repeatedly on the pretext of marriage. When she became pregnant, she insisted the bail petitioner to marry her. Later on, it transpired that the bail petitioner is already married to some other lady and as such, complainant-prosecutrix along with her newly born child, left the company of the bail petitioner and went to her maternal house at Batungli. Complainant-prosecutrix further alleged that bail-petitioner came to her maternal house and forcibly took her ten months old baby along with him. 4. Mr. Manoj Pathak, learned counsel representing the bail petitioner, while referring to the status report/record, vehemently argued that no case is made out against the bail petitioner under Section 376 IPC, because, bare narration of facts as detailed in the record/status report suggests that the story put forth by the prosecution/investigating agency is concocted one and can not be believed. Mr. Manoj Pathak, learned counsel representing the bail petitioner, while referring to the status report/record, vehemently argued that no case is made out against the bail petitioner under Section 376 IPC, because, bare narration of facts as detailed in the record/status report suggests that the story put forth by the prosecution/investigating agency is concocted one and can not be believed. Mr. Pathak, further contended that allegedly the bail petitioner took the complainant-prosecutrix along with him in the year 2001, where after complainant-prosecutrix allegedly gave birth to one child, but in case the date as mentioned by the complainant-prosecutrix in her complaint i.e. 16.6.2010, when allegedly she ran away with her new born child to her maternal house, is taken into consideration, this in itself falsifies the story put forth by the complainant-prosecutrix. Mr. Pathak, further contended that alleged incident pertains to the year 2010, but FIR came to be registered against the bail petitioner on 13.7.2011 and there is nothing on record, suggestive of the fact that during this period, complainant-prosecutrix made any attempt to lodge a complaint, if any, against the bail petitioner, either to her parents, or to the police and as such, delay in lodging FIR is in itself a sufficient ground to release the bail petitioner on bail. Lastly Mr. Pathak, contended that bail petitioner is a local resident of the area and shall always remain available for facing trial and no material has been placed on record by the prosecution suggestive of the fact that in the event of his being enlarged on bail, there is any likelihood of his fleeing from justice. 5. Mr. M.L. Chauhan, learned Additional Advocate General, while refuting the aforesaid contentions having been made by the learned counsel representing the bail petitioner, contended that keeping in view the gravity of the offence allegedly committed by the bail petitioner as well as his past conduct, he does not deserve to be enlarged on bail, and present petition deserves to be dismissed. Mr. Chauhan, learned Additional Advocate General, while fairly admitting that there is delay in lodging FIR, contended that there is ample evidence adduced on record by investigating agency that complainant-prosecutrix gave birth to a child, which was subsequently taken away by the bail petitioner forcibly. Mr. Mr. Chauhan, learned Additional Advocate General, while fairly admitting that there is delay in lodging FIR, contended that there is ample evidence adduced on record by investigating agency that complainant-prosecutrix gave birth to a child, which was subsequently taken away by the bail petitioner forcibly. Mr. Chauhan, learned Additional Advocate General also contended that FIR pertains to the year 2011, but investigation in the same could not be completed for the sole reason that bail petitioner remained absconding and never joined the investigation, as such, he does not deserve to be shown any leniency, rather, in the event of petitioner being enlarged on bail, he may influence or tamper with the evidence adduced on record by the prosecution. 6. I have heard the learned counsel for the parties and gone through the record carefully. 7. Perusal of status report/record clearly suggests that the incident pertains to the year 2010. Though there is no specific date mentioned by the complainant-prosecutrix, in her statement recorded under Section 154 CrPC, on the basis of which formal FIR came to be registered, but as per her own statement, complainant-prosecutrix categorically stated that on 16.6.2010, she left the company of bail petitioner, meaning thereby child, if any, was born prior to June, 2010, as such, story narrated by the complainant-prosecutrix that she met bail petitioner for the first time in the year 2010 is itself doubtful. Otherwise also, there is no possible explanation rendered on record by the complainant prosecutrix for the delay in lodging FIR, which definitely came to be registered after approximately one year of the alleged incident. Similarly, there is nothing on record suggestive of the fact that during the aforesaid period, complaint, if any, was ever lodged by the complainant-prosecutrix either to the police or to her parents. It is not in dispute that complainant-prosecutrix is a major and is capable of understanding consequences of the offence allegedly committed by bail petitioner. Medical evidence adduced on record by the prosecution/investigating agency nowhere supports the case of the prosecution, rather categorical finding has come on record that complainant-prosecutrix is habitual of having sexual intercourse. It is not in dispute that complainant-prosecutrix is a major and is capable of understanding consequences of the offence allegedly committed by bail petitioner. Medical evidence adduced on record by the prosecution/investigating agency nowhere supports the case of the prosecution, rather categorical finding has come on record that complainant-prosecutrix is habitual of having sexual intercourse. Though aforesaid aspect of the matter is to be considered and decided by the trial Court, but this Court, after having carefully perused the status report/record, sees no reason to let the petitioner incarcerate in jail for indefinite period, especially when he being a local resident, shall always remain available to face trial and his guilt is yet to be proved. As far as apprehension of the learned Additional Advocate General that it may be difficult to secure the presence of the bail petitioner during trial is concerned, bail petitioner can be put to stringent conditions, for grant of 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 versus Central Bureau of Investigation (2012)1 Supreme Court Cases 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 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. 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 refuse bail to an unconvicted 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 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. 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.” (Emphasis supplied) 10. Hon'ble Apex Court, in Sundeep Kumar Bafna versus State of Maharashtra (2014)16 SCC 623 , has held as under:- “8. Some poignant particulars of Section 437 CrPC 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 CrPC 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. 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 CrPC 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. CrPC 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 CrPC. 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 CrPC 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 CrPC 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. We have not found any provision in the CrPC 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. 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. 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 CrPC.” 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. Petitioners is local resident of Himachal Pradesh and shall remain available to face the trial and to undergo imprisonment, if any, which may be imposed on conclusion of the trial. 12. The 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. 13. 13. In view of above, present petition is allowed and the petitioner is ordered to be enlarged on bail in the aforementioned FIR, subject to his furnishing personal bonds in the sum of Rs.50,000/- with one local surety in the like amount to the satisfaction of learned Judicial Magistrate 1st Class, concerned 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 him/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. 14. It is clarified that if the petitioner misuses the liberty or violate 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 these petition alone. The petition stands accordingly disposed of.