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2019 DIGILAW 1100 (HP)

Manohar Lal v. State of Himachal Pradesh

2019-08-06

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, J. 1. Bail petitioner namely Manohar Lal, who is behind bars since 5.8.2017, has approached this Court in the instant proceedings for grant of bail in FIR No. 68, dated 5.8.2017, under Ss.363, 366 and 376 IPC and S.4 of Protection of Children from Sexual Offences Act, registered at Police Station, Padhar, District Mandi, Himachal Pradesh. 2. Sequel to orders dated 23.7.2019 and 1.8.2019, ASI Kulmesh Singh, I/O, Police Station, Padhar, District Mandi, Himachal Pradesh has come present with the record. Mr. Kunal Thakur, learned Deputy Advocate General has also placed on record status report prepared by the investigating agency on the basis of investigation carried out by it. Record perused and returned. 3. Record made available to this Court, reveals that on 5.8.2017, complainant Anoop Singh lodged a complaint at Police Station, Padhar, District Mandi, Himachal Pradesh, alleging therein that his minor daughter, aged 15 years (name withheld), had gone to School on 29.7.2017, but has not come back from School. Complainant further alleged that on 1.8.2017, victim-prosecutrix telephonically called him and informed that she was at Chandigarh and disconnected the phone. Complainant further alleged that thereafter father of the bail petitioner, Med Ram and one Kewlu Ram, came to his house and informed that Med Ram's son i.e. bail petitioner had also not come home for the last 2-3 days. He alleged that the person namely Kewlu Ram managed conversation between victim-prosecutrix and the complainant, who informed that she was in the company of the bail petitioner. Complainant alleged that he apprehends that the bail petitioner compelled the victim- prosecutrix to elope with him on the pretext of marriage and as such, appropriate action be taken against the bail petitioner. 4. Before appropriate proceedings could be initiated against the bail petitioner, he alongwith victim-prosecutrix appeared in the Police Station, Padhar. Wife of the complainant identified the victim-prosecutrix. Police after recording the statement of the victim-prosecutrix under S.161 Cr.P.C. also got recorded her statement under S.164 Cr.P.C. before Judicial Magistrate 1st Class, Joginder Nagar, Mandi. Though, initially the victim-prosecutrix refused to subject herself to medical examination, however, subsequently, on the pursuance of her parents, she agreed and accordingly, she was medically examined at Zonal Hospital, Mandi. On the basis of complaint (supra), a formal FIR came to be registered against the bail petitioner under the aforesaid provisions of law. 5. Mr. Though, initially the victim-prosecutrix refused to subject herself to medical examination, however, subsequently, on the pursuance of her parents, she agreed and accordingly, she was medically examined at Zonal Hospital, Mandi. On the basis of complaint (supra), a formal FIR came to be registered against the bail petitioner under the aforesaid provisions of law. 5. Mr. Kunal Thakur, learned Deputy Advocate General, on the instructions of the Investigating Officer, stated that the statements of seven prosecution witnesses out of total 19 stand recorded. He further stated that the statements of material prosecution witnesses i.e. victim-prosecutrix, her mother and father (complainant), stand recorded. While opposing prayer made in the instant application for grant of bail, Mr. Thakur, contended that keeping in view the gravity of the offence, alleged to have been committed by the bail petitioner, he does not deserve any leniency and as such, his prayer for grant of bail may be rejected. Mr. Thakur, further contended that since 12 witnesses are yet to be examined, it may not be in the interest of justice to release bail petitioner at this stage, because in such an eventuality, he may tamper with prosecution evidence or may dissuade the witnesses from deposing against him. 6. Mr. H.R. Chauhan, learned counsel for the bail petitioner, while making this Court to peruse the statements made by the victim-prosecutrix, her mother and complainant before the trial Court, strenuously argued that no offence, much less an offence under S.376 IPC is made out against the bail petitioner as such, his client deserves to be enlarged on bail. Mr. Chauhan, further contended that there are material contradictions and inconsistencies in the statements of the victim-prosecutrix recorded under Ss.161 and 164 Cr.P.C. and the statement recorded during trial. Learned counsel for the bail petitioner contended that perusal of evidence led on record clearly reveals that the victim-prosecutrix and bail petitioner had prior acquaintance and at no point of time, bail petitioner compelled her to join his company, rather, she of own volition, joined the company of the bail petitioner. lastly, Mr. Chauhan, argued that since statements of material prosecution witnesses stand recorded, no prejudice whatsoever, would be caused to prosecution case, in case bail petitioner, who has already suffered for more than two years, is ordered to be enlarged on bail. 7. lastly, Mr. Chauhan, argued that since statements of material prosecution witnesses stand recorded, no prejudice whatsoever, would be caused to prosecution case, in case bail petitioner, who has already suffered for more than two years, is ordered to be enlarged on bail. 7. Having heard learned counsel for the parties and perused the material available on record, especially initial statements of the victim-prosecutrix recorded under Ss.161 and 164 Cr.P.C. vis-a-vis her statement recorded in the court during trial, this court finds that there are material contradictions and inconsistencies with regard to abduction/kidnapping of the victim-prosecutrix by the bail petitioner. Initially the victim-prosecutrix in her statements recorded under Ss. 161 and 164 Cr.P.C. though claimed that she was taken to Mandi and Chandigarh by the bail petitioner but, she never stated that she was sexually assaulted by the bail petitioner. If her statements as referred to above are read in entirety, this court is compelled to agree with learned counsel for the bail petitioner that the victim-prosecutrix had prior proximity with the bail petitioner and had been meeting each other for quite long. Statement having been made by victim-prosecutrix further reveal that she of her own volition without there being any pressure from bail petitioner, joined his company and she was fully capable of understanding the consequences of her being in the company of the bail petitioner. 8. At this stage, it may be noticed that victim-prosecutrix during her stay with the bail petitioner called her parents twice, but never stated that she was being held captive forcibly. 9. Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court in the totality of evidence collected on record by the investigating agency, but having noticed aforesaid glaring aspects, this court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when bail petitioner has already suffered for more than two years. Apart form above, statements of material prosecution witnesses stand recorded, as such, no prejudice whatsoever is going to be caused to the prosecution case, in case prayer made by the bail petitioner for grant of bail is considered. 10. Apart form above, statements of material prosecution witnesses stand recorded, as such, no prejudice whatsoever is going to be caused to the prosecution case, in case prayer made by the bail petitioner for grant of bail is considered. 10. Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of U.P. and Another decided on 6.2.2018 has held that freedom of an individual can not be curtailed for indefinite period, especially when his/her guilt is yet to be 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. 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. 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. 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: Re-Inhuman Conditions in 1382 Prisons." 11. By now it is well settled that gravity alone cannot be a 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. 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 vs. Central Bureau of Investigation, (2012) 1 SCC 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. 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." 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. 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. In Manoranjana Sinh alias Gupta vs. CBI, (2017) 5 SCC 218 , Hon'ble Apex Court has held as under: "This Court in Sanjay Chandra vs. Central Bureau of Investigation, (2012) 1 SCC 40 , also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that 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 found guilty. It was underlined that the object of bail is neither punitive nor preventive. This Court sounded a caveat 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 a conduct whether an accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and that grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and that grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted." 14. 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. (viii) danger, of course, of justice being thwarted by grant of bail. 15. In view of above, bail petitioner has carved out a case for himself and as such, present petition is allowed. Bail 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 Chief Judicial Magistrate concerned/trial court, besides the 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. (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. 16. (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. 16. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 17. 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 petition alone. 18. The petition stands accordingly disposed of.