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Himachal Pradesh High Court · body

2018 DIGILAW 1103 (HP)

Jagdish Chand v. State of Himachal Pradesh

2018-06-15

SANDEEP SHARMA

body2018
JUDGMENT : Sandeep Sharma, J. Since all the above captioned bail petitions arise out of same FIR, same are being taken up together, for disposal by way of this common judgment. 2. Bail petitioners, named hereinabove, by way of instant bail petitions filed under Section 439 of the Code of Criminal Procedure, have prayed for grant of regular bail in case FIR No.103 of 2017, dated 26.09.2017, under Sections 354-A and 376-C( 3) of IPC and Sections 6 and 10 of the Protection of Children from Sexual Offences Act, registered at Police Station, Tissa, District Chamba, Himachal Pradesh. 3. Sequel to order dated 12.06.2018, ASI Hem Raj, has come present alongwith the record. Mr. Dinesh Thakur, learned Additional Advocate General has also placed on record status report, prepared on the basis of the investigation carried out by the investigating agency. Record perused and returned. 4. Close scrutiny of the record/status report reveals that Chairperson, Child Welfare Committee, Chamba, District Chamba, Himachal Pradesh and District Child Protection Officer, Chamba, District Chamba, Himachal Pradesh, filed a complaint on 26.09.2017 before the Superintendent of Police, Chamba, alleging therein sexual harassment of children/inmates staying in Child Care Institution, Tissa at Chilli, District Chamba, Himachal Pradesh. Complainants, named hereinabove, alleged that it has come to the notice of the Child Welfare Committee and District Child Protection Unit that there is apprehension of offences being committed by the staff members of Child Care Institution, Tissa at Chilli, upon the children/inmates staying therein. On the basis of aforesaid complaint, FIR detailed hereinabove, came to be lodged against the present bail petitioners and other co-accused. After completion of the investigation, police presented the challan in the competent Court of law. Bail petitioners, named hereinabove, are behind the bars since 27.9.2017. Though, bail petitioners, as referred above, had approached this Court earlier for grant of bail, but subsequently those bail petitions were withdrawn with liberty to file afresh at an appropriate stage. 5. Learned counsel representing the bail petitioners, state that now bail petitions have been filed in the change circumstances because all the prosecutrixes except one have been examined and they have not supported the case of the prosecution and as such, bail petitioners deserve to be enlarged on bail. 5. Learned counsel representing the bail petitioners, state that now bail petitions have been filed in the change circumstances because all the prosecutrixes except one have been examined and they have not supported the case of the prosecution and as such, bail petitioners deserve to be enlarged on bail. Initially, in the statements recorded under section 164 of the Code of Criminal Procedure, five girls, who were residing at Child Care Institution, Tissa at Chilli, alleged that the accused/petitioners, named hereinabove, not only behaved indecently with them, but on many occasions tried to touch their private parts. One of the prosecutrix also alleged that one of the accused tried to outrage her modesty and sexually assault her against her wishes. 6. Learned counsel representing the bail petitioners while inviting attention of this Court to the judgment dated 29.5.2018 rendered by this Court in Cr.MP(M) No.652 of 2018, filed by one of the co-accused, namely Vyaso Ram, contend that this Court taking note of the statements made by the prosecutrixes ( five in number) before the learned trial Court, released him on bail and as such, present bail petitioners also deserve to be enlarged on bail. Learned counsel for the petitioners further contend that in view of the statements made by the prosecutrixes before the learned trial Court, no case is made out against the bail petitioners because all the prosecutrixes have resiled from their statements and have categorically stated before the learned trial Court that none of the accused including the present bail petitioners have ever behaved indecently or ever tried to outrage their modesty. 7. Mr. Dinesh Thakur, learned Additional Advocate General, while fairly admitting the factum with regard to passing of the judgment dated 29.5.2018, passed in Cr.MP(M) No.652 of 2018, contends that no doubt prosecutrixes in their statements before the learned trial Court below have not supported the case of the prosecution, but taking note of the fact that they all are minor living in child home, it would be too early to conclude that bail petitioners would be acquitted of the charges framed against them. However, Mr. However, Mr. Dinesh Thakur, learned Additional Advocate General, on the instructions of the Investigating Officer, who is present in Court, fairly admitted that all the prosecutrixes have resiled from their statements and have denied the allegations contained in the FIR as well as statements recorded under Section 164 of the Code of Criminal Procedure before the Magistrate. 8. Learned counsel for the petitioners while specifically inviting attention of this Court to order dated 11.4.2018, passed by the learned trial Court, contend that since sixth prosecutrix being mentally retarded was not able to make statement before the Court, her statement was not recorded. Learned counsel also invited attention of this Court to the opinion rendered by the Medical Board constituted by the Court, to demonstrate that sixth prosecutrix is suffering from moderate mental retardation (ICD-10 F71, mental age from 6 to under 9 years) with disability of seventy two percent (72%) permanent in nature. 9. Having carefully examined the statements made by five prosecutrixes before the trial Court, this Court is persuaded to agree with the contention raised by the learned counsel for the petitioners that no case is made out against the bail petitioners and other co-accused, named in the FIR. Though, these prosecutrixes were declared hostile, but even in their crossexamination nothing material could be elicited and as such, this Court finds considerable force in the arguments of learned counsel representing the bail petitioners that there is very remote/bleak possibility of conviction as far as accused named in the FIR, are concerned. 10. True, it is that all the prosecutrixes in their initial statements recorded under Section 164 of the Code of Criminal Procedure before the learned Magistrate, had levelled allegations of sexual assault against the bail petitioners, but shockingly in their statements recorded before the learned trial Court they have categorically stated that they had not levelled any allegations against the bail petitioners, rather they were compelled by the Child Helpline Chamba to file complaint against the bail petitioners as well as other co-accused. During trial, when prosecutrixes were confronted with their statements made by them before the Magistrate under Section 164 Cr.P.C, they categorically stated that they had made false statements before the Magistrate, on the askance of Child Helpline, Chamba. 11. During trial, when prosecutrixes were confronted with their statements made by them before the Magistrate under Section 164 Cr.P.C, they categorically stated that they had made false statements before the Magistrate, on the askance of Child Helpline, Chamba. 11. Leaving everything aside, medical evidence adduced on record, nowhere suggest sexual assault, if any, committed upon the prosecutrixes by the bail petitioners and other co-accused, named in the FIR. Since trial is yet to be concluded, aforesaid aspects of the matter are to be considered and decided by the learned trial Court below on the basis of the entire evidence adduced on record by the prosecution, but having taken note of the statements admittedly made by prosecutrixes before the learned trial Court, this Court sees no justification to keep the bail petitioners behind the bars for indefinite period, especially when they have already suffered more than 9 months. Moreover, guilt, if any, of the bail petitioners is yet to be proved, in accordance with law, by the prosecution by leading cogent and convincing evidence. There is not dispute that this Court taking note of the statements made by the prosecutrixes before the trial Court, has already enlarged co-accused Vyaso Ram on the bail vide judgment dated 29.5.2018, passed in Cr.MP(M) No.652 of 2018. 12. Hon'ble Apex Court in Ranjitsingh Brahmajeetsing Sharma v. State of Maharashtra (2005) 5 SCC 294 , while dealing with case registered under Maharashtra Control of Organised Crime Act, 1999 (MCOCA), which also contains stringent provisions, has categorically held that if the Court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. It has been held as under: “38. We are furthermore of the opinion that the restrictions on the power of the Court to grant bail should not be pushed too far. If the Court, having regard to the material s brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the Court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. The satisfaction of the Court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. If such an expansive meaning is given, even likelihood of commission of an offence under Section 279 of the Indian Penal Code may debar the Court from releasing the accused on bail. A statute, it is trite, should not be interpreted in such a manner as would lead to absurdity. What would further be necessary on the part of the Court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The Court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea. Every little omission or commission, negligence or dereliction may not lead to a possibility of his having culpability in the matter which is not the sine qua non for attracting the provisions of MCOCA. A person in a given situation may not do that which he ought to have done. The Court may in a situation of this nature keep in mind the broad principles of law that some acts of omission and commission on the part of a public servant may attract disciplinary proceedings but may not attract a penal provision.” 13 Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., decided on 6.2.2018 has held that freedom of an individual cannot be curtailed for indefinite period, especially when his guilt has not been proved. It has further held by the Hon’ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon’ble Apex Court has held as under: 2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 14. 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; wherein it 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.” 15. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218 , The Hon’ble Apex Court has held as under: “This Court in Sanjay Chandra v. CBI, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that 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 found guilty. It was underlined that the object of bail is neither punitive or preventive. This Court sounded a caveat 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 a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and the grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted.” 16. 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, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. 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. 17. The Hon’ble Apex Court in Prasanta Kumar Sarkar v. 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. 18. Consequently, in view of the above, present bail petitions are allowed. Petitioners are ordered to be enlarged on bail subject to their furnishing personal bond in the sum of Rs. 1,00,000/- ( Rs. 18. Consequently, in view of the above, present bail petitions are allowed. Petitioners are ordered to be enlarged on bail subject to their furnishing personal bond in the sum of Rs. 1,00,000/- ( Rs. One lakh) with one local surety each in the like amount, to the satisfaction of the learned trial Court, with following conditions: (a). They shall make themselves 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). They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; (c). They shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; and (d). They shall not leave the territory of India without the prior permission of the Court. 19. It is clarified that if the petitioners misuse their liberty or violates any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of their bail. 20. 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 applications alone. The bail petitions stand disposed of accordingly.