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2018 DIGILAW 2055 (HP)

Jagjit Singh @ Vicky v. State Of Himachal Pradesh

2018-11-21

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J. - Bail petitioner, namely Jagjit Singh @ Vicky, has approached this Court in the instant proceedings filed under Section 438 of the Code of Criminal Procedure, praying therein for grant of prearrest bail in relation to FIR No.17 of 2018, dated 13.09.2018, under Sections 376, 506 of IPC read with Section 67 of the Information Technology Act, 2000, registered at Women Police Station, Sadar, District Una, H.P. 2. Sequel to orders dated 18.9.2018 & 31.10.2018, ASI Asha Devi has come present alongwith the record. Mr. Dinesh Thakur, learned Additional Advocate General has also placed on record fresh status report, prepared on the basis of the investigation carried out by the Investigating Agency. Record perused and returned. 3. Careful perusal of the record/status report, reveals that complainant (hereinafter referred to as prosecutrix) lodged a complaint on 13.9.2018 at Women Police Station, Sadar, District Una, H.P., alleging therein that present bail petitioner, who was of her prior acquaintance, sexually assaulted her against her wishes and threatened her that in case she discloses anything to her parents or her relatives, he would eliminate her. Prosecutrix further alleged that after the alleged incident of sexual intercourse, bail petitioner alongwith his friends namely, Naresh Kumar and Goldy Kumar started teasing her and they uploaded her photographs on the face book and Internet. She also alleged that bail petitioner after loading her photographs on the face book and Internet kept on pressuring her for maintaining physical relations with him. She further alleged that her photographs loaded on the face book and Internet have been seen by her relatives and villagers and as such, she has no option, but to self immolate. On the basis of aforesaid complaint, FIR detailed hereinabove, came to be lodged against the present bail petitioner and other coaccused namely, Naresh Kumar and Goldy at Women Police Station, Sadar, District Una, H.P. under Sections 376, 354A, 354C, 354D, 506 and 34 IPC and Section 67 of Information Technology Act. 4. Police also got the statement of prosecutrix recorded under Section 164 Cr.P.C, wherein she reiterated what she stated in her initial complaint made to the police on 13.9.2018, contents whereof have already taken note hereinabove. Police also got the prosecutrix medically examined on 13.9.2018 and Medical Officer vide report dated 18.9.2018 opined that there is nothing to suggest that prosecutrix was sexually assaulted. Police also got the prosecutrix medically examined on 13.9.2018 and Medical Officer vide report dated 18.9.2018 opined that there is nothing to suggest that prosecutrix was sexually assaulted. Police also seized mobile phone of present bail petitioner and sent the same to RFSL, Dharamshala for extracting/retrieving the data with regard to uploading of photographs of prosecutrix. RFSL, Dharamshala vide report dated 26.9.2018, has categorically recorded that no data related to the case was found in the exhibits marked as Ex.3 and Q1 i.e. smart phone and memory card of present bail petitioner. 5. Mr. T.S.Chauhan, learned counsel representing the bail petitioner, while inviting attention of this Court to the record/status report, vehemently argued that no case, if any, is made out against the bail petitioner under Sections 376, 354 A, 354C, 354D, 506 and 34 IPC and Section 67 of Information Technology Act, and as such, he deserves to be enlarged on bail. While referring to the medical evidence adduced on record by the Investigating Agency, Mr. Chauhan, contended that it has specifically opined by the Doctor that prosecutrix was not sexually assaulted. He further contended that it stands duly proved with the report of RFSL, Dharamshala that bail petitioner had not uploaded the photographs of the prosecutrix, as alleged by her. Lastly, Mr. Chauhan, contended that investigation in the case is complete and nothing is required to be recovered from the bail petitioner and as such, he deserves to be enlarged on bail. Mr. Chauhan, further contended that pursuant to order dated 18.9.2018, bail petitioner has joined the investigation and fully cooperating and as such, his custodial interrogation is not required. He being first offender deserves to be enlarged on bail. 6. Mr. Dinesh Thakur, learned Additional Advocate General, while fairly acknowledging the factum with regard to completion of investigation, contended that pursuant to order dated 18.9.2018, bail petitioner has joined the investigation and is fully cooperating. He also admitted that as per the report submitted by the RFSL, no data has been recovered from the phone of the bail petitioner, suggestive of the fact that he had uploaded the photographs of prosecutrix on the face book and Internet. He further contended that keeping in view the gravity of the offences allegedly committed by the bail petitioner, he does not deserves to be enlarged on bail. 7. He further contended that keeping in view the gravity of the offences allegedly committed by the bail petitioner, he does not deserves to be enlarged on bail. 7. Having heard learned counsel for the parties and perused the material available on record, this Court finds that prosecutrix is major and alleged incident is of December, 2017, whereas, FIR mentioned hereinabove, came to be lodged on 13.9.2018 i.e approximately after one year and there is no explanation rendered on record by the prosecutrix that why for such long period she kept mum, rather her own initial statement given to the police and subsequent statement recorded under Section 164 Cr.P.C. suggest that she had prior acquaintance with the bail petitioner and they had been meeting each other. Even contents of the FIR suggest that prosecutrix lodged the complaint only when her photographs allegedly came to be uploaded on the face book and Internet and admittedly prior to that she never lodged the complaint, if any ,with regard to aforesaid incident either to her parents, police or to her any friends. 8. Leaving everything aside, medical evidence adduced on record, nowhere suggest that the prosecutrix was subjected to forcibly sexual intercourse, as alleged by her. Similarly, report submitted by the RFSL, Dharamshala suggests that no data with regard to the case was found in the mobile phone of the bail petitioner. Though, aforesaid aspects of the matter are to be considered and decided by the court below on the basis of the totality of evidence collected on record by the investigating agency, but having perused the material available on record at this stage, this Court sees no reason for the custodial interrogation of bail petitioner, especially when he has already joined the investigation and is fully cooperating, as has been fairly admitted by the learned Additional Advocate General. 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. 9. It has been repeatedly held by Hon''ble Apex Court as well as this Court that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved, in accordance with law. 10. 9. It has been repeatedly held by Hon''ble Apex Court as well as this Court that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved, in accordance with law. 10. 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. 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. 11. 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 SCC 40 ; 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. The Hon''ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation , (2012) 1 SCC 40 ; 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." 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. 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 18.09.2018, passed by this Court, is made absolute, subject to petitioner''s furnishing personal bonds in the sum of Rs. 1,00,000/- ( Rs. One Lakh) with one surety in the like amount, to the satisfaction of the Investigating Officer, besides the 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. 15. 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. 16. 15. 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. 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 bail petition stands disposed of accordingly. Copy dasti.