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Himachal Pradesh High Court · body

2018 DIGILAW 661 (HP)

Devinder Kumar v. State Of Himachal Pradesh

2018-04-17

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J —By way of instant bail petition filed under Section 439 of the Code of Criminal Procedure, prayer has been made for grant of regular bail in case FIR No.173 of 2016, dated 26.11.2016 under Sections 458, 376, 323, 506 of IPC, registered at police Station, Gohar, District Mandi, Himachal Pradesh. 2. Sequel to order dated 27.3.2018, ASI Narayan Lal, police Station, Gohar, District Mandi, has come present in Court alongwith the record of the case. Record perused and returned. 3. Mr. Vikrant Chandel, learned Deputy 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 26.11.2016 complainant ( for short ''prosecutrix'') lodged a complaint, alleging therein that on 24.11.2016, her husband had gone to attend some marriage. Allegedly, when prosecutrix at 10:00 PM was stitching clothes in her room, her three years old son and 13 years old niece were sleeping on the bed, bail petitioner, who reside in neighbourhood entered the room and bolted the same from inside. Allegedly, bail petitioner gagged the mouth of prosecutrix and thereafter sexually assaulted her. During aforesaid alleged incident, husband of the prosecutrix come back from the marriage and knocked the door. Bail petitioner after having heard the knock on the door, hided himself below the bed. Thereafter, allegedly bail petitioner while leaving the room of the prosecutrix not only extended threats to the prosecutrix and her husband, but also gave beatings to both of them. On the basis of aforesaid report, formal FIR, as detailed hereinabove, came to be lodged against the bail petitioner and he was taken into custody on 27.11.2016 and since then, he is behind the bars. 4. Mr. N.S.Chandel, learned counsel representing the bail petitioner, while referring to the record/status report, vehemently argued that bare perusal of the story put forth by the prosecution itself suggest that the prosecutrix was known to the bail petitioner and they had been meeting with each other in past also. Mr. 4. Mr. N.S.Chandel, learned counsel representing the bail petitioner, while referring to the record/status report, vehemently argued that bare perusal of the story put forth by the prosecution itself suggest that the prosecutrix was known to the bail petitioner and they had been meeting with each other in past also. Mr. Chandel, further contended that otherwise also, version put forth by the prosecutrix is unbelievable and cannot be relied upon, because admittedly as per her own version at the time of alleged incident, her three years old son as well as 13 years old niece were present in room and as such, it is not understood that in case the bail petitioner made an attempt to sexually assault the prosecutrix against her wishes, what prevented her to raise hue and cry. Referring to the statement made by the prosecutrix under Section 164 of the Code of Criminal Procedure, Mr. Chandel, contended that it clearly emerge from the reading of the same that the prosecutrix was a consenting party to the alleged incident and once factum with regard to illegitimate relationship with the bail petitioner came to the fore, she lodged false complaint against the bail petitioner. Mr. Chandel, further contended that the investigation in the case is complete and nothing is required to be recovered from the bail petitioner and he is behind the bars for almost 1 years for no fault of him and as such, he deserve to be enlarged on bail. He further contended that the bail petitioner is a local resident of the area and there is no likelihood of his fleeing from justice and he shall make himself available for investigation and trial as and when called by the investigating agency. 5. Mr. Vikrant Chandel, learned Deputy Advocate General, while opposing the aforesaid prayer having been made by learned counsel for the bail petitioner, contended that it is quite apparent from the record that on 24.11.2016 bail petitioner taking undue advantage of the absence of husband of the prosecutrix not only extended threats to her, but sexually assaulted her against her wishes and as such, he does not deserve any leniency, rather needs to be dealt with severely. While referring to the medical evidence adduced on record, learned Deputy Advocate General, contended that it stands duly established on record that on the alleged date of incident, bail petitioner sexually assaulted the prosecutrix against her wishes and while leaving the site of occurrence, he also gave beatings to the husband of the prosecutrix. While fairly admitting that the investigation in the case is complete and nothing is required to be recovered from the bail petitioner, Mr. Chandel, learned Deputy Advocate General, contended that in the event of petitioner''s being enlarged on bail, there is every possibility of his fleeing from justice and tempering with the evidence and as such, his bail petition may be rejected at this stage. 6. I have heard learned counsel representing the parties and carefully gone through the record made available. 7. As per prosecutrix, bail petitioner taking undue advantage of the absence of her husband, entered into her room on the alleged date of incident at 10:00 PM and thereafter sexually assaulted her. After having perused the material available on record, this Court finds force in the arguments of learned counsel representing the bail petitioner that story put forth by the prosecutrix does not appears to be probable because at the time of alleged incident apart from minor son of prosecutrix, 13 years old niece was also present there. It is none of the case of the prosecution that minor child and 13 years old niece were sitting in some other room, rather categorical case of the prosecutrix is that at the time of alleged incident, her minor son and 13 years old niece were sleeping on the bed in that room. It is also not understood that when bail petitioner entered into the room of the prosecutrix and bolted the same, what prevented the prosecutrix to raise hue and cry, if bail petitioner was not of her prior acquaintance as is alleged in the complaint. Version put forth by the prosecution that her mouth was gagged and thereafter she was sexually assaulted also does not appear to be trustworthy, especially when 13 years old niece of her was present in the room. As per report of the Doctor, who attended upon the prosecutrix at the time of her medical examination, no sign of violence was observed on the person of the prosecutrix. As per report of the Doctor, who attended upon the prosecutrix at the time of her medical examination, no sign of violence was observed on the person of the prosecutrix. Interestingly, there is another aspect of the matter that as per own statement of the prosecutrix, bail petitioner after having heard knock on the door, hided himself below the bed. There is nothing in the statement of the prosecutrix, from where it can be inferred that she immediately after opening the door disclosed to her husband that bail petitioner, who forcibly committed sexual intercourse with her is hiding below the bed. Though, aforesaid aspects of the matter are to be considered and decided by the Court below on the basis of the evidence collected on record by the prosecution, but this Court having perused the record , sees no reason to let the bail petitioner incarcerate in jail for indefinite period, especially when he has already suffered for more than 1 years Otherwise also, by now it is well settled that freedom of an individual is of utmost importance and same cannot be curtailed merely on the basis of suspicion. Till the time guilt of accused is not proved, in accordance with law, he is deemed to be innocent. In the case at hand, the guilt, if any, of the bail petitioners is yet to be proved, in accordance with law, and as such, no fruitful purpose would be served in case the bail petitioner is allowed to remain behind the bars during the pendency of the present case, rather great prejudice would be caused to him in case his freedom is curtailed for indefinite period. 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. 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. 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. 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. 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 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." 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. 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. One lac 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. 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.