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2018 DIGILAW 564 (HP)

Tara Chand v. State Of Himachal Pradesh

2018-04-06

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J —Bail petitioner, who is behind bars since 13.12.2017, has approached this Court by way of instant proceedings, filed under Section 439 of Cr.PC, with a prayer to grant regular bail in case FIR No. 69/17 dated 2.12.2017, under Sections 376, 506, 34 IPC and Section 6 of POCSO Act, registered at P.S. Kasauli, District Solan, H.P. 2. Sequel to orders dated 27.2.2018 and 19.3.2018, ASI Madan Mohan, I/o P.S. Kasauli, 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, came to be lodged at the behest of the complainant namely Paramjeet Kaur on 2.12.2017, who alleged that her minor daughter studies at Government Senior Secondary School at Jagjeetnagar in class 10+1. She further stated that her daughter goes to school in Kaushal Private Bus. On 28.11.2017, when her minor daughter had gone to school, she found one mobile phone in her bed. Since complainant had not provided her daughter with mobile phone, she having noticed dialed call, gave a phone call on a number i.e. 78073- 01800, and found that her daughter was with a person namely Bunty. Complainant asked Bunty to send her daughter to Gadkhal. On 2.12.2017, minor daughter of the complainant disclosed to the complainant that she knows a person namely Bunty for the last 1 years and he had given mobile phone to her one month ago. She further disclosed to her mother that on 29.7.2016, bail petitioner had taken her to hotel Anchal at Kasauli to celebrate his birthday, but he taking undue advantage of her innocence sexually assaulted her against her wishes. Daughter of the complainant also revealed to her mother (complainant) that on 29.11.2017, when Bunty had gone out of room to get some food, bail petitioner unauthorisedly entered into her room in hotel and sexually assaulted her against her wishes. On the basis of aforesaid statement having been made by the complainant under Section 154 Cr.PC, aforesaid FIR came to be lodged against the bail petitioner as well as other co-accused namely Bunty at PS Kasauli. 4. Mr. On the basis of aforesaid statement having been made by the complainant under Section 154 Cr.PC, aforesaid FIR came to be lodged against the bail petitioner as well as other co-accused namely Bunty at PS Kasauli. 4. Mr. Sudhir Thakur, Advocate, representing the bail petitioner while referring to the status report/record, vehemently contended that bail petitioner has been falsely implicated in the instant case because at this stage, there is no evidence collected on record suggestive of the fact that the bail petitioner sexually assaulted daughter of the complainant. He further stated that bare perusal of record itself reveals that daughter of the complainant was in constant touch with co accused Bunty for the last 1 years and during this period, she on her own volition, developed physical relations with him. While referring to the statement having been made by the prosecutrix i.e. daughter of the complainant, under Section 164 Cr.PC., Mr. Thakur, contended that name of bail petitioner has been taken in a very casual manner by the victim because as per her own statement, on 29.7.2017, daughter of the complainant had gone to hotel called Anchal at Kasauli with Bunty, where allegedly bail petitioner also came and sexually assaulted her. Mr. Thakur further stated that as per own statement of prosecutrix, she after the alleged incident had lunch with co-accused Bunty and thereafter, she remained in constant touch, rather in company of co-accused Bunty till 28.11.2017, when her mother gave a call to co-accused Bunty over a phone provided by him to her daughter. While referring to the medical evidence adduced on record, Mr. Thakur, contended that there is no definite opinion rendered on record by the doctor that victim was subjected to sexual intercourse as is alleged in the FIR. Mr. Thakur, further contended that investigation in the case, is complete and challan stands filed in the competent court of law and nothing is required to be recovered from the bail petitioner and as such, he deserves to be enlarged on bail. Learned counsel for the further contended that bail petitioner is a local resident of the area and he shall be always available for investigation as well as trial, as and when called upon by the Investigating Agency. 5. Mr. Learned counsel for the further contended that bail petitioner is a local resident of the area and he shall be always available for investigation as well as trial, as and when called upon by the Investigating Agency. 5. Mr. Dinesh Thakur, learned Additional Advocate General, while opposing prayer having been made by the learned counsel for the petitioner contended that keeping in view the gravity of offence allegedly committed by the bail petitioner, he does not deserve to be enlarged on bail. He further contended that bare perusal of statement of prosecutrix recorded under Section 164 of Cr.PC suggests that bail petitioner taking undue advantage of the innocence of victim, who was admittedly minor at the time of alleged incident, not only threatened her but sexually assaulted her as is quite apparent from the MLC adduced on record. He further contended that investigation reveals that victim i.e. daughter of complainant was minor at the time of alleged incident. Learned Additional Advocate General further contended that it has also come in the investigation that the both the accused Bunty and present bail petitioner are related to each other and they both had taken daughter of the complainant to hotel at Kasauli on 29.7.2017, where present bail petitioner after sending the co-accused Bunty out from the room, sexually assaulted the bail petitioner. While fairly acknowledging that challan stands filed in the competent court of law and nothing is required to be recovered from the bail petitioner, on instructions, Mr. Dinesh, contended that in the event of petitioner''s being enlarged on bail, he may influence and temper evidence collected on record and as such, prayer having been made by the petitioner may be rejected. 6. I have heard learned counsel representing the parties and gone through the record. 7. It is quite apparent from the record/status report that daughter of the complainant was known to co-accused Bunty, who happened to be conductor in Kaushal Bus, owned by the present bail petitioner. Perusal of statement made by the complainant under Section 154 Cr.PC, on the basis of which, Formal FIR came to be registered and statement made by victim under Section 164 of Cr.PC, clearly suggests that victim had been meeting co-accused Bunty for the last 1 years and during this period, she had developed physical relations with him. Perusal of statement made by the complainant under Section 154 Cr.PC, on the basis of which, Formal FIR came to be registered and statement made by victim under Section 164 of Cr.PC, clearly suggests that victim had been meeting co-accused Bunty for the last 1 years and during this period, she had developed physical relations with him. On or before 3.12.2017, she never lodged complaint, if any, either to her parents or to the police with regard to the aforesaid illegal act of co-accused Bunty and present bail petitioner. Otherwise also, bare perusal of complaint as well as statement made under Section 164 Cr.PC, suggests that allegation against the present bail petitioner is with regard to the incident allegedly happened on 29.7.2017. As per own statement of victim, co-accused had taken her to hotel Anchal for celebrating his birthday. After having perused statement of prosecution of prosecutrix, this Court finds considerable force in the argument of Sudhir Thakur, Advocate, representing the bail petitioner that allegation against the bail petitioner has been made in a very casual manner because it is not understood that if bail petitioner had sexually assaulted her on 29.7.2017, in the absence of co accused Bunty, what prevented her/victim to disclose this fact to her friend namely Bunty (co-accused) , to whom she knew for 1 years. But in the case at hand, victim instead of disclosing aforesaid incident to Bunty, not only had lunch in the same hotel, rather she remained in the constant touch with co-accused Bunty till 28.11.2017 and during this period, she also developed physical relations with Bunty for 2-3 times as has been stated in her statement recorded under Section 164 CrPC. Further perusal of medical evidence adduced on record nowhere indicates involvement, if any, of the bail petitioner in the crime alleged to be committed by him. Moreover, this Court cannot lose sight of the fact that alleged incident pertains to 29.7.2017, whereafter as per own statement of victim, she remained in constant touch with co-accused Bunty, who sexually assaulted her during this period and as such, medical evidence, if any, collected after 29.11.2017, may not be of any relevance as far as case registered against the present bail petitioner is concerned. Prosecution with a view to prove age of the victim, got X-rays of victim conducted at CHC, who in its report has held that as per the biological and serological report from FSL Junga and radiologist age estimation the radiologist age estimated from the basis of fusion of epiphyses from the following X-rays is between 15-19 years As per the biological and serological report from FSL Junga, the possibility of sexual intercourse cannot be ruled out. 8. 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. 9. 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. 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. 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. 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. 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 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." 11. 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. 12. 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." 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; (viii) reasonable apprehension of the witnesses being influenced; and (ix) danger, of course, of justice being thwarted by grant of bail. 14. 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. 14. 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. 2,00, 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/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. 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 this application alone. The petition stands accordingly disposed of. Copy dasti.