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Himachal Pradesh High Court · body

2019 DIGILAW 1304 (HP)

Partap v. State of Himachal Pradesh

2019-09-04

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, J. Bail petitioner namely, Partap, who is behind the bars since 19.7.2019, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No.19/2019, dated 13.3.2019, under Section 9 of the Prohibition of Child Marriage Act, 2006 and Section 6 of the Protection of Children from Sexual Offences Act, registered at police Station, Shillai, District Sirmaur, Himachal Pradesh. 2. Sequel to order dated 20.8.2019, ASI Dalip Singh has come present alongwith the record. Mr. Sudhir Bhatnagar, learned Additional Advocate General, has also placed on record status report, prepared on the basis of the investigation carried out by the Investigating Agency. Record perused and returned. 3. Close scrutiny of the record/status report, reveals that on 13.3.2019 complainant namely, Smt. Sumitra Sharma, Coordinator Child Helpline, Sirmaur, sent a complaint to police Station, Shillai, District Sirmaur, H.P., alleging therein that victim/prosecutrix (hereinafter referred to as the prosecutrix’, name withheld to protect her identity), who is minor, is residing at Village Badol alongwith the bail petitioner for the last one year with an intention to solemnize marriage. Complainant further alleged that as per information, prosecutrix has also minor child aged 7 months. On the basis of aforesaid complaint, police inquired the matter and found that the prosecutrix had been residing at Village Badol in the house of the bail petitioner for the last one year. Police recorded the statement of the prosecutrix under Section 154 Cr.P.C, wherein she stated that she know the bail petitioner since her childhood and they both wanted to solemnize marriage. She stated that on 6/7th December, 2017 she of her own volition and as per local custom solemnized marriage with the bail petitioner, whereafter they have been living at Village Badol as husband and wife. She also stated that she has delivered one baby at Community Health Centre, Sangrah. On the basis of aforesaid statement made by the prosecutrix, formal FIR, as detailed hereinabove, came to be lodged against the present bail petitioner on 13.3.2019 under Section 9 of the Prohibition of Child Marriage Act. However, Section 6 of the Protection of Children from Sexual Offences Act, came to be incorporated in the FIR subsequently and since 19.7.2019 bail petitioner is behind the bars. However, Section 6 of the Protection of Children from Sexual Offences Act, came to be incorporated in the FIR subsequently and since 19.7.2019 bail petitioner is behind the bars. Police also got the statement of the prosecutrix recorded under Section 164 Cr.P.C, wherein she reiterated that she of her own volition and without there being any external pressure, solemnized marriage with the bail petitioner, to whom she knew since her childhood. She in her statement given before the learned Magistrate stated that prior to her marriage, her husband Partap was married to her elder sister, who unfortunately died on account of prolonged illness. She stated that before the death of her elder sister, she had promised her that she will take care of her children and as such, she solemnized marriage with the bail petitioner. She also stated that she has her own child and she is living happily with the bail petitioner. She also stated that complaint was made at the insistence of Coordinator Child Helpline, who had assured that in the event of filing complaint they would take care of her child and would also pay money. Record reveals that after registration of aforesaid case, prosecutrix is residing with her parents at her matrimonial house. 4. Mr. Sudhir Bhatnagar, learned Additional Advocate General, on the instructions of Investigating Officer, stated that though investigation in the case is not complete, but at this juncture nothing remains to be recovered from the bail petitioner. Learned Additional Advocate General further contended that though statement of the prosecutrix suggests that she of her own volition solemnized marriage with the bail petitioner, but keeping in view her age, consent, if any, is immaterial and as such, present bail petition having been filed by the bail petitioner may be dismissed. 5. Having heard learned counsel representing the parties and perused the material available on record, especially statement of the prosecutrix made under Section 164 Cr.P.C, this Court is convinced and satisfied that at no point of time prosecutrix came to be abducted/kidnapped by the bail petitioner, rather she of her own volition joined the company of the bail petitioner and developed intimate relationship. It further emerge from the record that marriage inter se prosecutrix, who was admittedly minor at the time of alleged incident, took place with the prior consent/agreement of families of bail petitioner as well as prosecutrix. It further emerge from the record that marriage inter se prosecutrix, who was admittedly minor at the time of alleged incident, took place with the prior consent/agreement of families of bail petitioner as well as prosecutrix. Factum with regard to child marriage came to fore after lodging of the complaint by Child Helpline Sirmaur. Investigation clearly reveals that out of aforesaid wedlock, one child was born to the prosecutrix and his name stands duly entered in the Pariwar Register. Investigation further reveals that name of bail petitioner has been recorded as father of child born out of their wedlock in the Pariwar Register maintained by the Gram Panchayat concerned. 6. No doubt, in the case at hand, age of the prosecutrix was less then 18 years at the time of alleged incident, but having taken note of the fact that prosecutrix had been living in the house of the bail petitioner for the last one year and she has delivered one baby boy, this Court sees no reason to let the bail petitioner incarcerate in jail for indefinite period, during the trial. 7. It clearly emerge from the record that previous wife of the bail petitioner, who happened to be elder sister of the prosecutrix, has already expired living behind two children and as such, there appears to be force in the arguments of learned counsel for the petitioner that at present there is none to look after the family of the bail petitioner. Moreover, this Court with a view to protect the future of the prosecutrix as well as her minor child, deems it fit to enlarge the bail petitioner on bail at this stage, especially when nothing remains to be recovered from him. Question with regard to validity of marriage inter se prosecutrix and the bail petitioner would be decided in appropriate proceedings before the appropriate Court of law. 8. Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court on the basis of totality of evidence to be collected on record by the prosecution, but having noticed aforesaid glaring aspects, this Court sees no reason to curtail the freedom of the bail petitioner for indefinite period. 9. By now it is well settled that freedom of an individual is of utmost importance and cannot be curtailed for indefinite period. 9. By now it is well settled that freedom of an individual is of utmost importance and cannot be curtailed for indefinite period. 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 petitioner is yet to be proved, in accordance with law. 10. 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 a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon’ble Apex Court further held that while considering prayer for grant of bail, 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. Hon’ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. 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. 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. 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. 11. The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012) 1 SCC 49; 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. 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.” 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, bail is not to be withheld as a punishment. 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. 13. The Hon’ble Apex Court in Prasanta Kumar Sarkar v. 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. Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing personal bond in the sum of Rs. 1,00,000/-(Rs. 14. Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing personal bond in the sum of Rs. 1,00,000/-(Rs. One lac) with one local surety in the like amount, to the satisfaction of the learned 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 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 his 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. 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 bail petition stands disposed of accordingly.