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2018 DIGILAW 514 (HP)

Sanjeev Kumar v. State of Himachal Pradesh

2018-04-02

SANDEEP SHARMA

body2018
JUDGMENT : Sandeep Sharma, J. 1. Bail petitioner namely Sanjeev Kumar, who is behind the bars since 9.12.2017, 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. 133 of 2017 dated 7.12.2017, under Section 376 IPC and Sections 6 and 17 of Protection of Children from Sexual Offences Act, registered at Police Station, Tissa, District Chamba, Himachal Pradesh. 2. Sequel to order dated 26.3.2018, ASI Sat Pal has come present with the 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 FIR detailed herein above, came to be lodged at the behest of the complainant namely Ram Dei, who alleged that her minor daughter was enticed and taken away in her absence by accused Sanjeev Kumar and his father on 25.9.2017. Allegedly on 26.9.2017, complainant contacted her daughter (prosecutrix), over the telephone, who disclosed that she has been brought to village Kanoi by accused Sanjeev Kumar and his father, Chaman Singh. Since families of complainant and accused were known to each other and they had also agreed for marriage of the victim and Sanjeev Kumar, complainant thought it not proper to register complaint in the Police Station against aforesaid illegal act of Sanjeev Kumar and his father. Allegedly after one and a half months of aforesaid incident, mother of petitioner, who is also accused in the case, visited the house of complainant along with victim but she left victim there and returned back to her house. Since for considerable time, none from the family of bail petitioner came back to take the victim, complainant with the assistance of Panchayat made an endeavour to contact bail petitioner and his parents but accused refused to accept her as such case referred to herein above came to be registered against them at Police Station Tissa, District Chamba. 4. Mr. Kulbhushan Khajuria, learned counsel representing the bail petitioner contends that it is quite apparent from the record that the daughter of the complainant had herself of her own volition joined the company of bail petitioner. 4. Mr. Kulbhushan Khajuria, learned counsel representing the bail petitioner contends that it is quite apparent from the record that the daughter of the complainant had herself of her own volition joined the company of bail petitioner. He further stated that as per own statement of the complainant, victim remained with the family of the bail petitioner at Village Kanoi without there being any complaint, rather this fact was known to the complainant because during this period, she made no effort to contact her. Mr. Khajuria further contended that it has also come on record that families of victim and bail petitioner were known to each other for a considerable time and they had agreed for their marriage. While referring to the conduct of the mother of victim, learned counsel representing the bail petitioner contended that she despite having discovered the fact that her daughter is living with bail petitioner and his parents since 25.9.2017, never thought it proper to register the FIR, which ultimately came to be registered after a lapse of three months. While referring to the report of RFSL, learned counsel representing the bail petitioner contended that no case is made out against bail petitioner under Section 376 IPC and Sections 6 and 17 of the Protection of Children from Sexual Offences Act, as such, bail petitioner deserves to be enlarged no bail. While referring to judgments dated 19.1.2018 and 19.3.2018 passed by this Court in Cr.M.P.(M) N o. 39 of 2018 and Cr.M.P. No. 194 of 2018, learned counsel representing the bail petitioner contended that other co-accused have already been enlarged on bail, as such, present bail petitioner, who is a boy of tender age, deserves to be enlarged on bail. 5. Mr. Dinesh Thakur, learned Additional Advocate General, while opposing aforesaid prayer having been made by the learned counsel representing the bail petitioner, contended that keeping in view the gravity of the offence allegedly committed by bail petitioner, he does not deserve to be enlarged on bail. He further contended that true it is that as per forensic report, there is no recent evidence of sexual intercourse but that may not be sufficient to conclude that bail petitioner did not indulge in sexual assault, as has been categorically alleged by the victim. He further contended that true it is that as per forensic report, there is no recent evidence of sexual intercourse but that may not be sufficient to conclude that bail petitioner did not indulge in sexual assault, as has been categorically alleged by the victim. He further categorically stated that since in the report, it has been stated that there is no evidence of recent sexual intercourse, it cannot be concluded at this stage that the bail petitioner did not sexually assault the victim during the period she remained with him at his house. While fairly admitting that Challan stands filed in the competent Court of law and nothing is required to be recovered from the bail petitioner, Mr, Thakur, learned Additional Advocate General contended that in the event of petitioner being enlarged on bail, he may influence and tamper with evidence adduced on record by prosecution, as such, present petition may be dismissed. 6. I have heard the learned counsel for the parties and gone through the record carefully. 7. It is quite apparent from the record made available to this Court that families of bail petitioner and victim were known to each other for quite considerable time and in fact they had agreed inter se them to solemnize marriage of victim with bail petitioner. Bail petitioner and other co-accused Chaman Singh had taken the victim to their house but despite that, she(complainant) failed to report the matter to the police, rather she remained quiet for almost 3-4 months. There is nothing on record suggestive of the fact that during this period, she made any attempt, if any, to lodge complaint in Gram Panchayat. Similarly, there appears to be no effort on her part to bring her daughter back to her house during the period of three months. Explanation rendered by complainant for delay in lodging FIR, does not appear to be plausible, rather there appears to be considerable force in the argument of learned counsel representing the bail petitioner that complainant was in the know of the things that her daughter is residing with the family of bail petitioner. 8. Leaving everything aside, perusal of medical evidence as well as report of RFSL placed on record, nowhere corroborates version put forth by victim and complainant. RFSL has categorically opined that there is no evidence of sexual intercourse. 8. Leaving everything aside, perusal of medical evidence as well as report of RFSL placed on record, nowhere corroborates version put forth by victim and complainant. RFSL has categorically opined that there is no evidence of sexual intercourse. Even if the initial report of medical officer is perused, he has not given any conclusive report to the effect that victim was subjected to sexual intercourse, as such, this Court, at this stage, after having perused entire evidence collected on record by prosecution, sees no reason to keep the bail petitioner in custody for indefinite period. Guilt if any, of the bail petitioner is to be proved in accordance with law by prosecution by leading cogent and convincing evidence on record. Though, aforesaid aspect of the matter is to be considered and decided by the court below on the basis of evidence, if any, collected on record by prosecution, but this Court, sees no reason to let the bail petitioner incarcerate in jail for indefinite period, especially when Challan stands filed in the competent Court of law. 9. 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 can not 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. 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.” 10. 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; 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 un-convicted 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 un-convicted 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 un-convicted person for the propose of giving him a taste of imprisonment as a lesson.” 11. 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. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) 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. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) 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.” (Emphasis supplied) 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 also, normal rule is of bail and not jail. Apart from above, 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. Otherwise also, normal rule is of bail and not jail. Apart from above, 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 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; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. 14. In view of above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing bail bonds in the sum of Rs.1,00,000/- (Rs. One Lakh) with one local surety in the like amount, to the satisfaction of the Investigating Officer concerned, besides 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. (e) He shall surrender passport, if any, held by him. 15. 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. 16. (e) He shall surrender passport, if any, held by him. 15. 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. 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 instant petition alone. The petition stand accordingly disposed of.