Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 1859 (HP)

Sushil Kumar v. State of Himachal Pradesh

2018-10-25

SANDEEP SHARMA

body2018
JUDGMENT : Sandeep Sharma, J. Bail petitioner namely, Sushil Kumar, who is behind the bars since 7.2.2018, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No.37 of 2018, dated 5.2.2018, under Sections 363, 376 of IPC and Section 4 of the Protection of Children from Sexual Offences Act, registered at police Station, Sadar District Mandi, Himachal Pradesh. 2. Sequel to orders dated 5th/11th October, 2018, SI Pawan Kumar, 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. Record/status report reveals that FIR, detailed hereinabove, came to be lodged at the behest of mother of the prosecutrix, who alleged that her minor daughter, who at the time of alleged incident was 17 years and 11 months old, has been kidnapped by some unknown person. On the basis of aforesaid complaint having been filed by the complainant, police made certain inquires, but fact remains that on 6.2.2018 daughter of the complainant herself returned back to her residence and disclosed to her mother that bail petitioner took her to one hotel last night and sexually assaulted her. After recording the statement of the complainant, police registered a case against the bail petitioner under Sections 363, 376 of IPC and Section 4 of the POCSO Act. 4. Mr. Nimish Gupta, learned counsel representing the bail petitioner, while inviting attention of this Court to record/status report, vehemently argued that no case is made out against the bail petitioner because there is no material adduced on record suggestive of the fact that bail petitioner had kidnapped the victim/prosecutrix, rather she of her own volition joined the company of bail petitioner and remained in his company. He further contended that medical evidence adduced on record, nowhere suggests commission of offence, if any, under Section 376 IPC committed by the bail petitioner. While referring to the previous medical history of victim/prosecutrix, Mr. Gupta, made an attempt to persuade this Court to agree with his contention that prosecutrix is habitual and as such, bail petitioner, who is behind the bars for the last more than 9 months, deserves to be enlarged on bail. While referring to the previous medical history of victim/prosecutrix, Mr. Gupta, made an attempt to persuade this Court to agree with his contention that prosecutrix is habitual and as such, bail petitioner, who is behind the bars for the last more than 9 months, deserves to be enlarged on bail. He further contended that challan stands already filed in the competent Court of law and since nothing is required to be recovered from the bail petitioner, bail petitioner cannot be allowed to incarcerate in jail for indefinite period. 5. Mr. Dinesh Thakur, learned Additional Advocate General, while fairly acknowledging the factum with regard to filing of challan in the competent Court of law, contended that keeping in view the gravity of the offence allegedly committed by the bail petitioner, he does not deserves to be enlarged on bail. Learned Additional Advocate General further contended that it has specifically come in the medical evidence that victim/prosecutrix is not mentally well and bail petitioner taking undue advantage of her mental condition not only eloped with her, but also sexually assaulted her against her wishes. While refuting the contention of learned counsel for the petitioner that nothing has emerged in the medical evidence against the bail petition, learned Additional Advocate General, contended that it has specifically come in the medical evidence that victim/prosecutrix was subjected to sexual intercourse. He further contended that previous history, if any, of victim/prosecutrix cannot be a ground for bail petitioner to seek bail in the case at hand, when admittedly it stands duly proved on record that bail petitioner taking undue advantage of the innocence of victim prosecutrix, who at the time of alleged incident was minor, sexually assaulted her. 6. Having heard learned counsel for the parties and perused the material available on record, this Court finds that it has specifically come in the statement of the victim/prosecutrix recorded under Section 164 Cr.P.C that she of her own volition had joined the company of bail petitioner on the date of alleged incident. She has specifically stated in her statement given before the Magistrate that she of her own volition remained with bail petitioner in the hotel when alleged incident had happened. She has specifically stated in her statement given before the Magistrate that she of her own volition remained with bail petitioner in the hotel when alleged incident had happened. Otherwise also, as per first statement/report made by the complainant to the police her daughter immediately after coming to her house had disclosed that bail petitioner took her in a hotel, but she nowhere stated that her daughter disclosed her that bail petitioner forcibly sexually assaulted her against her wishes. 7. Having carefully perused the statement of victim/prosecutrix recorded under Section 164 Cr.P.C., this Court finds no force in the arguments of learned Additional Advocate General that since victim/prosecutrix was mentally retarded, statement, if any, made by her is of no consequence because there is no mention, if any, with regard to mental illness of prosecutrix in the statement recorded by the Magistrate under Section 164 Cr.P.C. Since factum with regard to mental illness, if any, of prosecutrix is/was well within the knowledge of the police, it is not understood why this fact was not brought to the knowledge of the Magistrate, who recorded her statement under Section 164 Cr.P.C. Otherwise also, careful perusal of the statement having been made by the prosecutrix under Section 164 Cr.P.C, nowhere suggests that she is/was incapable of understanding/answering the question put to her by the court, rather narration of facts given by her clearly suggest that she is/was capable of understanding the question clearly. 8. Having carefully perused the statement made by the prosecutrix before the Magistrate, this Court is persuaded to agree with the contention of Mr. Nimish Gupta, learned counsel representing the petitioner that prosecutrix of her own volition without there being any pressure from the side of the bail petitioner joined his company and thereafter remained in his company throughout the night. Apart from above, record also reveals that in past also prosecutrix was admitted in hospital on account of abortion, which fact itself suggests that prosecutrix was capable of understanding the consequences of her being in the company of bail petitioner. 9. Apart from above, record also reveals that in past also prosecutrix was admitted in hospital on account of abortion, which fact itself suggests that prosecutrix was capable of understanding the consequences of her being in the company of bail petitioner. 9. Though, aforesaid aspects of the matter are to be considered and decided by the learned court below on the basis of the evidence collected by the prosecution, but at this stage, this Court having perused the material available on record sees no reason to allow the bail petitioner to incarcerate in jail for indefinite period, especially when he has already suffered for more than nine months in jail. 10. Otherwise also, it is well settled that till the time guilt of a person is not proved in accordance with law, he/she is deemed to be innocent. Challan stands filed in the competent Court of law and no material has been adduced on record, from where it can be inferred that in the event of petitioner’s being enlarged on bail, he may flee from justice and as such, this Court sees no reason to curtail the freedom of the petitioner for indefinite period, especially when the investigation in the case is almost complete. 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 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. 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. 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. 12. 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. 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.” 13. 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. 14. 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. 15. Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing personal bond in the sum of Rs. 1,00,000/( Rs. 15. Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing personal bond in the sum of Rs. 1,00,000/( Rs. One lakh) with one local surety in the like amount, to the satisfaction of the learned 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 them 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. 16. It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of his bail. 17. 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 bail petition stands disposed of accordingly.