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2018 DIGILAW 650 (HP)

Ghanshyam v. State Of Himachal Pradesh

2018-04-16

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J —Bail petitioner, namely Ghanshyam, who is behind the bars since 16.3.2018, has approached this Court for grant of regular bail in case FIR No. 18 of 2018, dated 16.3.2018, under Sections 363, 366, 354, 354-D of Indian Penal Code and Section 12 of POCSO Act, registered at Police Station, Janjehli, District Mandi, Himachal Pradesh. 2. Sequel to order dated 9.4.2018, ASI Mohan Joshi, police Station, Janjehli, District Mandi, has come present in Court alongwith the record of the case. Record perused and returned. 3. 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, perusal whereof, suggests that on 16.3.2018 complainant, who is 17 years old girl, alleged that on 12.3.2018 bail petitioner forcibly stopped her way and asked for her mobile number. Since, the complainant refused to give her mobile number, bail petitioner allegedly manhandled her. Having heard the cries of the complainant, her father and grandfather came to the spot, whereafter bail petitioner on their persuasion left the spot. Subsequently, on 15.3.2018 bail petitioner again stopped the way of the complainant and caught hold of her hand and claimed that he would marry her, complainant refused the proposal of marriage on the pretext that she wants to study. Allegedly, bail petitioner pulled the complainant forcibly towards her house, but subsequently, with the intervention of school teachers, bail petitioner let the complainant go to her house. In the aforesaid background, FIR detailed hereinabove, came to be lodged against the petitioner on 16.3.2018. Bail petitioner is in custody since 16.3.2018. 4. Mr. Narender Kumar Reddy, learned counsel representing the bail petitioner, while referring to the record/ status report, vehemently argued that bare perusal of the statement made by the complainant under Section 164 of Cr.P.C., nowhere suggests that case, if any, is made out against the bail petitioner under Sections 363, 366, 354, 354-D of Indian Penal Code and Section 12 of POCSO Act, and as such, he deserve to be enlarged on bail. Mr. Reddy, further contended that the complainant has categorically stated that the bail petitioner has not committed any crime, if any, punishable under Section 354 of IPC. Mr. Reddy, further contended that the complainant has categorically stated that the bail petitioner has not committed any crime, if any, punishable under Section 354 of IPC. He further contended that there is no allegation, if any, contained in the complaint that bail petitioner forcibly took the complainant to his house or anywhere else against the wishes of the complainant, rather he with the intervention of parents of complainant and teachers left the spot of occurrence. He further contended that investigation in the case is complete and nothing is required to be recovered from the bail petitioner and as such, no fruitful purpose will be served in case the bail petitioner is allowed to incarcerate in jail for indefinite period. 5. Mr. Dinesh Thakur, learned Additional Advocate General, while opposing the aforesaid prayer having been made by learned counsel for the petitioner, contended that keeping in view the nature of offence allegedly committed by the bail petitioner, he does not deserve any leniency, rather needs to be dealt with severely. He further contented that it has specifically come in the statement of the complainant that the bail petitioner on two occasions caught hold of her against her wishes and threatened her with dire consequences. Mr. Thakur, further contended that in the event of petitioner''s being enlarged on bail, he will not only hamper the investigation, rather there is every likelihood of his fleeing from justice and as such, present petition may be dismissed. 6. I have heard learned counsel representing the parties and carefully gone through the record made available. 7. This Court finds from the record that the bail petitioner and complainant are known to each other for considerable time. It also emerge from the investigation that bail petitioner wants to marry the complainant and in this process he stopped her way on two occasions, but lateron on the persuasion of elder and with the intervention of teachers, let the complainant go to her house. It has come in the statement of the complainant that bail petitioner though forcibly wanted to marry her, but has not caused any harm to the person of the complainant. Complainant has alleged that bail petitioner with a view to solemnize marriage with her, made an attempt to take her away against her wishes and in this process bail petitioner outraged her modesty. Complainant has alleged that bail petitioner with a view to solemnize marriage with her, made an attempt to take her away against her wishes and in this process bail petitioner outraged her modesty. As has been noticed above, on both the occasions when allegedly bail petitioner made an attempt to outrage modesty of the complainant, family members and teachers were present, but at this stage there appears to be no evidence collected on record in the shape of the statement, if any, made by the family members or teachers to corroborate aforesaid version of the complainant. Perusal of medical evidence adduced on record also suggests that injury, if any, suffered on account of scuffle which allegedly took place between the bail petitioner and the complainant is simple in nature. This Court cannot loose the sight of the fact that bail petitioner is already behind the bars for more than one month and as such, sees no reason to let the bail petitioner incarcerate in jail for indefinite period, especially when the investigation in the case is almost complete. Otherwise also, it is well settled that till the time guilty of the accused is not proved, in accordance with law, he is deemed to be innocent. 8. 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 accused is not proved, in accordance with law, he is deemed to be innocent. The relevant paras No.2 to 5 of the 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. 9. 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." 10. 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. 11. 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. 12. In view of above, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bonds in the sum of Rs. 12. In view of above, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bonds in the sum of Rs. 50, 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. 13. 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. 14. 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.