Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 404 (HP)

Chaman Singh v. State Of Himachal Pradesh

2018-03-19

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J —By way of instant bail petition filed under Section 439 of Cr.PC, a prayer has been made on behalf of the bail petitioner, who is behind bars, for grant of regular bail in connection with FIR No. 133/17 dated 7.12.2017, under Section 376 of IPC and Sections 6 & 17 of the POCSO Act, registered at Tissa, District Chamba, H.P. 2. Sequel to order dated 5.3.2018, ASI Satpal, PS Tissa, District Chamba, HP, has come present in Court alongwith the record of the case. 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. 3. Perusal of the record/status report suggests that FIR, detailed hereinabove, was lodged at the behest of the complainant namely Ramdei, who alleged that her minor daughter was enticed and taken away in her absence by the accused namely Sanjeev Kumar and his father i.e. present bail petitioner on 25.9.2017. On 26.9.2017, complainant contacted her daughter over telephone, who disclosed that she has been brought to village Kanori by the accused Sanjeev Kumar and his father Chaman Singh (bail petitioner) . Since families of the complainant and accused were known to each other and they had also agreed for marriage of daughter of the complainant with accused Sanjeev Kumar, complainant thought it proper, not to register any complaint with the police station against the aforesaid illegal act of Sanjeev Kumar and Chaman Singh, but allegedly after one and half month of aforesaid incident, mother of the petitioner, who is also an accused in the case, along with co-accused Sanjeev Kumar, visited the house of the complainant alongwith daughter of the complainant. Mother of the accused namely Sanjeev Kumar after leaving daughter of the complainant at her house, came back to her village. Since no one from the family of the bail petitioner and other accused, came back to take the daughter of the complainant back, complainant made various efforts to contact the bail petitioner as well as other accused, but they all refused to take daughter of the complainant to their house. In the aforesaid background, case came to be registered against the bail petitioner, his wife Rattni Devi and son Sanjeev Kumar. 4. In the aforesaid background, case came to be registered against the bail petitioner, his wife Rattni Devi and son Sanjeev Kumar. 4. This Court, after having perused record, had ordered for release of wife of the petitioner on bail, vide judgment dated 19.1.2018, passed in Cr.MP(M) No. 39 of 2018. At this stage, it may be noticed that bail petitioner who happened to be father of the accused namely Sanjeev Kumar, who had allegedly committed offence punishable under Section 376 IPC with the daughter of the complainant, had also withdrawn Cr.MP(M) No. 38 of 2018, vide order dated 19.1.2018, with liberty to file afresh at appropriate stage. 5. Mr. K.B. Khajuria, Advocate, representing the bail petitioner while referring to the fresh status report placed on record, contended that bail petitioner has approached this Court in a changed circumstance, wherein admittedly, new fact with regard to the report submitted by the RFSL has come to the fore and as such, present petition is maintainable. While referring to the record/status report, learned counsel for the petitioner contended that it stands duly proved on record that at no point of time, daughter of the complainant was enticed/induced by the bail petitioner or his family members to accompany them to their house, rather as per own case set up by the Investigating Agency, families of the complainant and accused were well known to each other and they had agreed for marriage of daughter of the complainant with the co-accused namely Sanjeev Kumar. He further contended that there is no evidence available on record at this stage, suggestive of the fact that daughter of the complainant was compelled to go to the house of the bail petitioner, rather daughter of the complainant, who was engaged with the son of the bail petitioner, herself of her own volition stayed at the house of the bail petitioner for more than a month. While referring to the conduct of the mother of the complainant, learned counsel contended that she despite having discovered the fact that her daughter has been taken by the bail petitioner and his son on 25.9.2017, never thought it proper to register the FIR, which ultimately came to be lodged on 7.12.2017, i.e. after a period of three months. While referring to the report of RFSL, Mr. While referring to the report of RFSL, Mr. Khajuria, contended that no case, if any, is made out against the son of the bail petitioner under Section 376 IPC and Sections 6 and 17 of POCSO , Act, 2012 and as such, he deserves to be enlarged on bail. Lastly, Mr. Khajuria, contended that even if otherwise, there is nothing on record, from where it can be inferred that the bail petitioner is involved in the crime allegedly committed by his son namely Sanjeev Kumar under the aforesaid provisions of law. While referring to the judgment dated 19.1.2018, passed by this court, in CrMP(M) No. 39 of 2018, Mr. Khajuria, contended that another co-accused, who happened to be the wife of the bail petitioner, has been already ordered to be enlarged on bail and as such, present petitioner also deserves to be enlarged on bail. 6. Mr. Dinesh Thakur, learned Additional Advocate General, while fairly admitting the fact that present petition has been filed in a changed circumstance, opposed the prayer for grant of bail, having been made on behalf of the bail petitioner and contended that keeping in view the gravity of offence allegedly committed by the son of bail petitioner in connivance with the bail petitioner, he does not deserve to be enlarged on bail and present petition deserves to be dismissed. He further contended that true it is that as per forensic report, there is no evidence of recent sexual intercourse but that may not be sufficient to conclude that son of the bail petitioner did not indulge in sexual assault as has been alleged by the daughter of the complainant, because in report, it has been stated that there is no evidence of recent sexual intercourse, meaning thereby, there is no opinion, if any, qua the period during which daughter of the complainant remained with the co-accused Sanjeev Kumar. Lastly, Mr. Thakur, contended that in the event of petitioner''s being enlarged on bail, there is every likelihood of his influencing the evidence, which may be very crucial for ascertaining the guilt of the accused named in the FIR. 7. I have heard learned counsel representing the parties and gone through the record. 8. Lastly, Mr. Thakur, contended that in the event of petitioner''s being enlarged on bail, there is every likelihood of his influencing the evidence, which may be very crucial for ascertaining the guilt of the accused named in the FIR. 7. I have heard learned counsel representing the parties and gone through the record. 8. Careful perusal of record clearly reveals that family of the complainant and bail petitioner were known to each other and they had agreed inter-se them to solemnize marriage of the daughter of the complainant with son of the bail petitioner. It is also not in dispute that mother of the complainant despite having known the fact that on 25.9.2017, bail petitioner and co-acused Sanjeev Kumar, had taken her daughter to their house, failed to report the matter to the police, rather she chose to remain quite for almost three months. Investigation further reveals that during the aforesaid period of three months, mother of the complainant also did not make any effort to bring her daughter back to her house from the village of the petitioner. Explanation rendered by the complainant for delay in lodging the FIR, does not appear to be plausible because once she knew that marriage of her daughter has not been solemnized with co-accused Sanjeev Kumar, there was no occasion for her to allow her daughter to remain in the company of Sanjeev Kumar coaccused that too for a period of three months. Otherwise also, this Court finds considerable force in the argument of Mr. Khajuria, that at this stage, there appears to be no evidence collected on record by the Investigating Agency suggestive of the fact that bail petitioner or his wife, who has already been enlarged on bail, abetted/instigated the coaccused Sanjeev Kumar, to commit offence, if any, under Section 376 of IPC, against the daughter of the complainant. 9. Leaving everything aside, perusal of medical evidence as well as report of RFSL placed on record by the Investigating Agency nowhere corroborate the version put forth by the victim/prosecutrix. True it is that RFSL in its report has opined that there is no evidence of recent sexual intercourse but even if initial report submitted by the medical officer is seen/perused, he has also not given a conclusive report to the effect that daughter of the complainant was subjected to sexual intercourse. 10. True it is that RFSL in its report has opined that there is no evidence of recent sexual intercourse but even if initial report submitted by the medical officer is seen/perused, he has also not given a conclusive report to the effect that daughter of the complainant was subjected to sexual intercourse. 10. Though aforesaid aspects of the matter are to be considered and decided by the Court below on the basis of evidence adduced on record by the Investigating Agency, but definitely, this Court after having seen/perused the material collected on record by the prosecution, sees no reason to let the bail petitioner incarcerate in jail for an indefinite period and as such, he deserves to be enlarged on bail. 11. Otherwise also, this Court cannot lose sight of the fact that guilt, if any of the bail petitioner is yet to be proved in accordance with law and as such, his freedom cannot be ordered to be curtailed for an indefinite period. 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 the accused is not proved in accordance with law, he is deemed to be innocent. 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. This does not do any good to our criminal jurisprudence or to our society. 3. 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 Re-Inhuman Conditions in 1382 Prisons." 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 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. 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. 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. Law with regard to grant of bail is now well settled. The apex Court in Siddharam Satlingappa Mhetre versus State of Maharashtra and others , (2011) 1 SCC 694 , while relying upon its decision rendered by its Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab , (1980) 2 SCC 565 , laid down the following parameters for grant of bail:- "111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia''s case that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. 112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused''s likelihood to repeat similar or the other offences. (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail." 15. In Sundeep Kumar Bafna versus State of Maharashtra & another , (2014) 16 SCC 623 , wherein it has been held as under:- "8. Some poignant particulars of Section 437 CrPC may be pinpointed. First, whilst Section 497(1) of the old Code alluded to an accused being "brought before a Court", the present provision postulates the accused being "brought before a Court other than the High Court or a Court of Session" in respect of the commission of any non-bailable offence. As observed in Gurcharan Singh vs State (Delhi Admn) , (1978) 1 SCC 118 , there is no provision in the CrPC dealing with the production of an accused before the Court of Session or the High Court. But it must also be immediately noted that no provision categorically prohibits the production of an accused before either of these Courts. As observed in Gurcharan Singh vs State (Delhi Admn) , (1978) 1 SCC 118 , there is no provision in the CrPC dealing with the production of an accused before the Court of Session or the High Court. But it must also be immediately noted that no provision categorically prohibits the production of an accused before either of these Courts. The Legislature could have easily enunciated, by use of exclusionary or exclusive terminology, that the superior Courts of Sessions and High Court are bereft of this jurisdiction or if they were so empowered under the Old Code now stood denuded thereof. Our understanding is in conformity with Gurcharan Singh, as perforce it must. The scheme of the CrPC plainly provides that bail will not be extended to a person accused of the commission of a non-bailable offence punishable with death or imprisonment for life, unless it is apparent to such a Court that it is incredible or beyond the realm of reasonable doubt that the accused is guilty. The enquiry of the Magistrate placed in this position would be akin to what is envisaged in State of Haryana vs Bhajan Lal , (1992) Supp1 SCC 335, that is, the alleged complicity of the accused should, on the factual matrix then presented or prevailing, lead to the overwhelming, incontrovertible and clear conclusion of his innocence. CrPC severely curtails the powers of the Magistrate while leaving that of the Court of Session and the High Court untouched and unfettered. It appears to us that this is the only logical conclusion that can be arrived at on a conjoint consideration of Sections 437 and 439 of the CrPC. Obviously, in order to complete the picture so far as concerns the powers and limitations thereto of the Court of Session and the High Court, Section 439 would have to be carefully considered. And when this is done, it will at once be evident that the CrPC has placed an embargo against granting relief to an accused, (couched by us in the negative) , if he is not in custody. It seems to us that any persisting ambivalence or doubt stands dispelled by the proviso to this Section, which mandates only that the Public Prosecutor should be put on notice. It seems to us that any persisting ambivalence or doubt stands dispelled by the proviso to this Section, which mandates only that the Public Prosecutor should be put on notice. We have not found any provision in the CrPC or elsewhere, nor have any been brought to our ken, curtailing the power of either of the superior Courts to entertain and decide pleas for bail. Furthermore, it is incongruent that in the face of the Magistrate being virtually disempowered to grant bail in the event of detention or arrest without warrant of any person accused of or suspected of the commission of any non-bailable offence punishable by death or imprisonment for life, no Court is enabled to extend him succour. Like the science of physics, law also abhors the existence of a vacuum, as is adequately adumbrated by the common law maxim, viz. ''where there is a right there is a remedy''. The universal right of personal liberty emblazened by Article 21 of our Constitution, being fundamental to the very existence of not only to a citizen of India but to every person, cannot be trifled with merely on a presumptive plane. We should also keep in perspective the fact that Parliament has carried out amendments to this pandect comprising Sections 437 to 439, and, therefore, predicates on the well established principles of interpretation of statutes that what is not plainly evident from their reading, was never intended to be incorporated into law. Some salient features of these provisions are that whilst Section 437 contemplates that a person has to be accused or suspect of a non-bailable offence and consequently arrested or detained without warrant, Section 439 empowers the Session Court or High Court to grant bail if such a person is in custody. The difference of language manifests the sublime differentiation in the two provisions, and, therefore, there is no justification in giving the word ''custody'' the same or closely similar meaning and content as arrest or detention. Furthermore, while Section 437 severally curtails the power of the Magistrate to grant bail in context of the commission of non-bailable offences punishable with death or imprisonment for life, the two higher Courts have only the procedural requirement of giving notice of the Bail application to the Public Prosecutor, which requirement is also ignorable if circumstances so demand. Furthermore, while Section 437 severally curtails the power of the Magistrate to grant bail in context of the commission of non-bailable offences punishable with death or imprisonment for life, the two higher Courts have only the procedural requirement of giving notice of the Bail application to the Public Prosecutor, which requirement is also ignorable if circumstances so demand. The regimes regulating the powers of the Magistrate on the one hand and the two superior Courts are decidedly and intentionally not identical, but vitally and drastically dissimilar. Indeed, the only complicity that can be contemplated is the conundrum of ''Committal of cases to the Court of Session'' because of a possible hiatus created by the CrPC." 16. The Apex Court in Prasanta Kumar Sarkar versus 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; (viii) reasonable apprehension of the witnesses being influenced; and (ix) danger, of course, of justice being thwarted by grant of bail. 17. 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 in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 17. 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 in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 1,00, 000/- with one local surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate, 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/her 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. 18. 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. 19. 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. Copy dasti.