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2018 DIGILAW 1594 (HP)

Kamaljeet Singh v. State Of Himachal Pradesh

2018-09-04

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J. - Bail petitioner namely Kamaljeet Singh, who is behind the bars since 18.02.2017, has approached this Court in the instant proceedings, filed under Section 439 Cr. P.C., praying therein for grant of regular bail in connection with FIR No. 2/17, dated 18.02.2017, under Sections 376 (D), 341 and 34 of IPC, registered at Women Police Station Baddi, District Solan, Himachal Pradesh. 2. Sequel to order dated 20th August, 2018, ASI Veena Paul has come present with record. Mr. Dinesh Thakur, learned Additional Advocate General has also placed on record status report, prepared on the basis of investigation carried out by the investigating Agency. Record perused and returned. 3. Perusal of record/status report reveals that complainantprosecutrix lodged a complaint at Women Police Station, Baddi, alleging therein that on 17th February, 2017, while she was returning to her home after performing her duties at ESI Hospital Katha, at about 7.20 P.M., present petitioner along with co-accused Purshotam, obstructed her way and took her behind the bushes and sexually assaulted her against her wishes. On the basis of the aforesaid statement of her made under Section 154 of Cr.P.C, an FIR was lodged against the present bail petitioner and co-accused Purshotam, who is a juvenile and at present is on bail. The present bail petitioner had earlier approached this Court by way of Cr. MPM No. 1574 of 2017, praying therein for grant of bail, however, same was dismissed as withdrawn. 4. Mr. Aditya Thakur, learned counsel for the bail petitioner, states that more than two years have been passed, but till date, trial has not commenced. While referring to the status report, Mr. Aditya Thakur, learned counsel, argued that the learned Court below has fixed next date for examining the prosecution witnesses on 9th January, 2019. Mr. Thakur, further argued that bare perusal of the record/status report clearly suggests that no case, if any, is made out under Section 376 (D) of IPC against the bail petitioner and as such, bail petitioner deserves to be enlarged on bail. While referring to the medical evidence adduced on record by the prosecution, Mr. Mr. Thakur, further argued that bare perusal of the record/status report clearly suggests that no case, if any, is made out under Section 376 (D) of IPC against the bail petitioner and as such, bail petitioner deserves to be enlarged on bail. While referring to the medical evidence adduced on record by the prosecution, Mr. Thakur, argued that no definite conclusion has been drawn by the Medical Officer after having examined the prosecutrix that she was subjected to forcible intercourse by accused rather, it is an admitted case of the parties that prosecutrix is 46 years old lady having nine children, and as such, no much reliance, if any, can be placed on the medical evidence. Lastly, Mr. Thakur, contended that since coaccused is already enlarged on bail, there is no force in the arguments of the prosecution that in the event of petitioner''s being enlarged on bail, he may influence and tamper with the evidence adduced on record by the prosecution, especially when challan stands filed in the competent court of law. 5. Mr. Dinesh Thakur learned Additional Advocate General, while opposing aforesaid prayer having been made by the learned counsel for the bail petitioner, fairly admitted that challan stands filed in the competent court of law but argued that keeping in view the gravity of offence allegedly committed by the present bail petitioner, he does not deserve any leniency and is not entitled to be enlarged on bail. While refuting the arguments advanced by Mr. Aditya Thakur, learned Additional Advocate General, contented that bare perusal of the report of the FSL as well as opinion rendered on record by the Medical Officer, clearly suggests that on the date of alleged occurrence, complainant-prosecutrix, was sexually assaulted by the bail petitioner as well as co-accused against her wishes. Lastly, Mr. Thakur, contended that otherwise also, no changed circumstance, if any, has been specifically indicated in the present application having been filed by the bail petitioner so as to entitle him to file instant application and as such, the present application deserves to be dismissed being not maintainable. 6. I have heard the learned counsel for the parties and gone through the record carefully. 7. 6. I have heard the learned counsel for the parties and gone through the record carefully. 7. After having heard learned counsel for the parties and perused the record, though this Court finds that prosecution has collected on record ample evidence suggestive of the fact that on the date of alleged occurrence, present bail petitioner and his co-accused not only obstructed the way of the complainant-prosecutrix ,rather she was sexually assaulted against her wishes, but taking note of the fact that the present bail petitioner is behind the bar for approximately two years and no much head way has been made as far as trial is concerned, deems it fit to consider the prayer for grant of bail at this stage. True it is that, no changed circumstance has been specifically averred in the application at hand but bare perusal of the status report filed on behalf of respondent-State, suggests that next date fixed by the learned Court below for summoning first prosecution witness is 9th January, 2019 and as such, there appears to be considerable force in the arguments of Mr. Aditya Thakur, learned counsel for the bail petitioner that petitioner cannot be allowed to incarcerate in jail for indefinite period during the pendency of the trial, especially when challan stands filed in competent court of law. This Court cannot loose sight of the fact that co-accused Purshotam, who is a juvenile, is already on bail and as such, there appears to be no force in the arguments made by learned Additional Advocate General that in the event of petitioner''s being enlarged on bail, he may influence and tamper with the evidence adduced on record by the prosecution. Similarly there is no material placed on record to substantiate that in the event of petitioner''s being enlarged on bail, he may flee from justice. Otherwise also, apprehension expressed by the learned Additional Advocate General, can be met by putting the bail petitioner to the stringent condition. By now it is well settled law that individual is deemed to be innocent till the time, he /she is proved guilty and as such, this Court is of the view that freedom of individual is of utmost importance and cannot be curtailed for an indefinite period. 8. By now it is well settled law that individual is deemed to be innocent till the time, he /she is proved guilty and as such, this Court is of the view that freedom of individual is of utmost importance and cannot be curtailed for an indefinite period. 8. Needless to say, guilt, if any, of the bail petitioner is yet to be proved in accordance with law by the prosecution by leading cogent and convincing evidence. It is well settled that till the time a person is not found guilty, one is deemed to be innocent. 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 a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon''ble Apex Court further held that while considering prayer for grant of bail, 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. Hon''ble Apex Court has further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid 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. 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. 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. 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. 9. 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. 10. The Hon''ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation , (2012) 1 SCC 40 ; 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." 11. 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 sou12nded 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 hi whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (i) nature and gravity of the accusation; (ii) severity of the punishment in the event of conviction; (iii) danger of the accused absconding or fleeing, if released on bail; 12 (iv) character, behaviour, means, position and standing of the accused; (v) likelihood of the offence being repeated; (vi) reasonable apprehension of the witnesses being influenced; and danger, of course, of justice being thwarted by grant of bail." 12. 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: (vii) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (viii) nature and gravity of the accusation; (ix) severity of the punishment in the event of conviction; (x) danger of the accused absconding or fleeing, if released on bail; (xi) character, behaviour, means, position and standing of the accused; (xii) likelihood of the offence being repeated; (xiii) reasonable apprehension of the witnesses being influenced; and (xiv) danger, of course, of justice being thwarted by grant of bail. 13. In view of the aforesaid discussion as well as law laid down by the Hon''ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail subject to his furnishing personal bonds in the sum of Rs. 13. In view of the aforesaid discussion as well as law laid down by the Hon''ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail subject to his furnishing personal bonds in the sum of Rs. 1,00,000/- with one local surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, 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 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 herein above shall not be construed to be a reflection on the merits of the cases and shall remain confined to the disposal of this application alone. The bail petition stands disposed of accordingly. Copy dasti.