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2018 DIGILAW 1203 (HP)

Shiv Kumar v. State of Himachal Pradesh

2018-07-03

SANDEEP SHARMA

body2018
JUDGMENT : Sandeep Sharma, J. Bail petitioners, namely Shiv Kumar and Smt. Kesav Bala apprehending their arrest in case FIR No. 142 of 2018, dated 19.6.2018, under Sections 341, 323, 354 and 506 of the Indian Penal Code (for short ‘IPC’) and Section 8 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO’), registered at police Station, Sadar, District Kullu, Himachal Pradesh, approached this Court in the instant proceedings, seeking therein pre-arrest bail. 2. Sequel to order dated 26.06.2018, whereby this Court had ordered for enlargement of bail petitioners on bail in the event of their arrest in connection with FIR detailed hereinabove, SI Ajit Singh, police Station, Sadar, District Kullu, 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. 3. Mr. Dinesh Thakur, learned Additional Advocate General, on the instructions of the Investigating Officer, who is present in Court, fairly states that pursuant to order dated 26.6.2018, bail petitioners have joined the investigation and are fully cooperating with the investigating agency. 4. Close scrutiny of the record/status report, reveals that FIR detailed hereinabvoe, came to be lodged at the behest of the complainant/prosecutrix on 19.6.2018, wherein she alleged that on 19.6.2018, at about 3:40 PM, petitioner No.2 stopped her and gave beatings to her. She further alleged that bail petitioner No.2 forcibly took her into the fields and tried to strangulate her. Subsequently, petitioner No.2 called petitioner No.1, who happened to be her son on the spot. Petitioner No.1 abused the complainant/ prosecutrix and behaved indecently with her. Complainant also alleged that during the scuffle, petitioner No.1 made an attempt to outrage her modesty and he also touched her private parts. On the basis of aforesaid complaint, FIR, mentioned hereinabove, came to be lodged against the bail petitioners. 5. Mr. Vijay Chaudhary, learned counsel representing the bail petitioners while referring to the record/status report, vehemently submits that no case is made out against the bail petitioners and they have been falsely implicated in the instant case and as such, they deserve to be enlarged on bail. While inviting attention of this Court to the documents placed on record alongwith the bail petition, Mr. While inviting attention of this Court to the documents placed on record alongwith the bail petition, Mr. Chaudhary, learned counsel, argues that the complainant/prosecutrix is daughter of Smt. Phulla Kumari, who is tenant of the bail petitioners. Since, Smt. Phulla Kumari failed to pay the rent qua the house rented to her by the bail petitioners, bail petitioners were compelled to file proceedings under Section 14 of the Urban Rent Control Act, 1987, for eviction in the Court of learned Rent Controller, Kullu, District Kullu, HP and the same is still pending. Documents placed on record further suggests that vide Annexure P2, dated 4.12.2017, bail petitioner No.2 had filed a complaint before the Superintendent of Police, Kullu, District Kullu, intimating therein uncalled behaviour of the mother of complainant/prosecutrix, who allegedly on one pretext or other always made an attempt to falsely implicate the bail petitioners or their family members. Vide aforesaid communication, bail petitioner No. 2 requested Superintendent of Police, Kullu, to issue direction to SHO, Mahila Thana, Sarwari Kullu, to take legal action against the respondent under law. 6. Mr. Chaudhary further invites attention of this Court to the statement of the complainant/prosecutrix recorded under Section 164 Cr.P.C., to demonstrate that there are lot of inconsistencies in the two statements given by the complainant/prosecutrix i.e. one is under Section 154 Cr.P.C and another under Section 164 Cr.P.C. He further states that on 19.6.2018, the complainant had actually attacked petitioner No.2 and in this regard FIR already stands registered at police Station, Kullu. Lastly, Mr. Chaudhary, contended that since bail petitioners have already joined the investigation, as such, there is no occasion for their custodial interrogation and they being local resident of the area deserve to be enlarged on bail. 7. Learned Additional Advocate General, while fairly acknowledging the factum with regard to joining of the investigation by the bail petitioners, opposes the prayer made in the petition for grant of bail and contends that keeping in view the gravity of offence allegedly committed by the bail petitioners, they do not deserve any leniency, rather needs to be dealt with severely. Learned Additional Advocate General, while fairly acknowledging the factum with regard to joining of the investigation by the bail petitioners, opposes the prayer made in the petition for grant of bail and contends that keeping in view the gravity of offence allegedly committed by the bail petitioners, they do not deserve any leniency, rather needs to be dealt with severely. Learned Additional Advocate General further contends that though it has come in the investigation that there is dispute pending inter se the parties in the Court of learned Rent Controller Kullu, but that cannot be a ground to seek bail because admittedly on 19.6.2018 complainant/prosecutrix was not only attacked by the bail petitioners, but attempt was also made by the bail petitioner No.1 to outrage the modesty of the complainant/prosecutrix, who is a minor. Learned Additional Advocate General submits that there may be certain inconsistencies in the statement recorded under Section 164 Cr.P.C. vis-a-vis statement recorded under Section 154 Cr.P.C, but if the statement recorded under Section 164 Cr.P.C., is carefully perused, it certainly suggest that on the date of alleged accident bail petitioner No.2 made an attempt to kill the complainant/prosecutrix and in this process the bail petitioner No.1 behaved indecently and as such, they do not deserve to be enlarged on bail. 8. Having carefully heard the learned counsel for the parties and perused the record, it is quite apparent that there is prior litigation between the parties pending adjudication before the learned Rent Controller, Kullu. It is also not in dispute that mother of the complainant is a tenant of the bail petitioners and in past also, they had some dispute and in that regard complaint was made to Superintendent of Police, Kullu. It is also not in dispute that on the date of alleged incident i.e. on 19.6.2018, petitioner No.2 also filed FIR No. 143 of 2018, dated 19.6.2018 under Sections 341, 323, 504 and 506 of IPC against the complainant and her mother. During investigation in the aforesaid FIR, it has emerged that bail petitioner No.1, who happened to be son of petitioner No.2, was not present on the spot on the date of alleged accident. Similarly, this Court finds considerable force in the arguments of Mr. During investigation in the aforesaid FIR, it has emerged that bail petitioner No.1, who happened to be son of petitioner No.2, was not present on the spot on the date of alleged accident. Similarly, this Court finds considerable force in the arguments of Mr. Vijay Chaudhary, learned counsel that there is an attempt on the part of the complainant to make major improvements in her statement recorded under Section 164 Cr.P.C., because admittedly, certain new facts have been mentioned in statement recorded under Section 164 Cr.P.C, which were otherwise not disclosed by the complainant prosecutrix at the time of her initial statement recorded under Section 154 Cr.P.C. Moreover, at this stage, there is no direct or indirect evidence adduced on record to substantiate the allegations raised by the complainant/prosecutrix or her mother. 9. True, it is that as per the medical evidence adduced on record, Medical Officer has opined that manhandling and sexual assault of victim cannot be ruled out, but as has been noticed hereinabove, on 19.6.2018, the complainant had scuffle with petitioner No.2 and as such, possibility of complainant having suffered injury, as pointed out by the Medical Officer in the scuffle allegedly took place between petitioner No.2 and the complainant cannot be ruled out. Though, aforesaid aspects of the matter are to be considered and decided by the learned court below on the basis of the evidence, if any, collected on record by the prosecution, however, at this stage, this Court taking note of the fact that the bail petitioners have already joined the investigation and are fully cooperating with the investigating agency, sees no reason for their custodial interrogation. Moreover, it has been informed that the investigation is almost complete and nothing is required to be recovered from the bail petitioners and as such, this Court sees no reason to keep the bail petitioners behind the bars during the trial. It is not in dispute that both the bail petitioners are local resident of the area and no material has been placed on record suggestive of the fact that in the event of their being enlarged on bail, there is every likelihood of their fleeing from the justice. 10. By now it is well settled that freedom of an individual is of utmost importance and cannot be curtailed for indefinite period. 10. By now it is well settled that freedom of an individual is of utmost importance and cannot be curtailed for indefinite period. Till the time guilt of accused is not proved, in accordance with law, he is deemed to be innocent. In the case at hand, the guilt, if any, of the bail petitioners is yet to be proved, in accordance with law. 11. 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 categorically held that freedom of an individual is of utmost importance and same cannot be curtailed merely on the basis of suspicion. Hon’ble Apex Court has further held that till the time guilt of accused is not proved, in accordance with law, he is deemed to be innocent. The relevant paras No. 2 to 5 of the judgment are reproduced 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. 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. 3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973. 5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in - In ReInhuman Conditions in 1382 Prisons 12. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in - In ReInhuman Conditions in 1382 Prisons 12. 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. 13. 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. 14. Consequently, in view of the above, order dated 26.6.2018, passed by this Court, is made absolute, subject to petitioner’s furnishing personal bond in the sum of Rs. 50,000/- with one surety in the like amount each to the satisfaction of the Investigating Officer, with following conditions : 1. 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; 2. 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; 2. They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; 3. They shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to the Court or the Police Officer; and 4. They shall not leave the territory of India without the prior permission of the Court. 15. It is clarified that if the petitioners misuse the liberty or violate any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail. 16. 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. The petition stands accordingly disposed of.