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2019 DIGILAW 171 (HP)

Anu Devi v. State Of Himachal Pradesh

2019-02-07

SANDEEP SHARMA

body2019
JUDGMENT Sandeep Sharma, J. (Oral) - Bail petitioner namely, Anu Devi, who is behind the bars since 23.1.2019, 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.4/2019, dated 21.01.2019, under Sections 376 and 354A & C of IPC and under Sections 4 and 8 of POCSO Act, 2012 , registered at police Station, Nalagarh, District Solan, Himachal Pradesh. 2. Sequel to order dated 1.2.2019, ASI, Veena Paul has come present alongwith the record. 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. Record perused and returned. 3. Close scrutiny of the record/status report, reveals that on 20.1.2019 complainantprosecutrix lodged complaint at Women Police Station, Baddi, District Solan, Himachal Pradesh through Child Welfare Officer, Solan, alleging therein that 34 years back her brother had raped her against her wishes. She also alleged in the complaint that at the time of alleged incident, her mother had gone with her Uncle. She also alleged in the complaint that person, namely Ravi Kumar also tried to outrage her modesty by touching her private parts. She specifically alleged in the complaint that factum with regard to aforesaid illegal act of her brother and Uncle was though brought to the notice of her mother (present bail petitioner) by her, but she instead of taking any action scolded her. In the complaint, complainantprosecutrix also alleged that person, namely Ravi Kumar also made an attempt to make her video while she was taking bath, but her mother failed to take any action against her brother and uncle, named hereinabove, and as such, she does not want to live with her. On 21.1.2019, police after recording the statement of Smt. Vijay Lama under Section 161 Cr.P.C., took the complainant prosecutrix for her medical examination. On 22.1.2019, police got the statement of complainant/prosecutrix recorded under Section 164 Cr.P.C., before learned Additional Chief Judicial Magistrate, Nalagarh. On 23.1.2019, police arrested the present bail petitioner as well as other accused, namely Ravi Kumar and since then they are behind the bars. Subsequently, on 27.1.2019, police also arrested brother of the complainant prosecutrix, who was subsequently ordered to be released on bail by Juvenile Justice Board being a Juvenile. 4. Mr. On 23.1.2019, police arrested the present bail petitioner as well as other accused, namely Ravi Kumar and since then they are behind the bars. Subsequently, on 27.1.2019, police also arrested brother of the complainant prosecutrix, who was subsequently ordered to be released on bail by Juvenile Justice Board being a Juvenile. 4. Mr. H.S.Rana, learned counsel representing the bail petitioner, while referring to the record/status report, vehemently argued that no case, if any, is made out against the present bail petitioner, who happened to be mother of the complainantprosecutrix much less under Section 21 of POCSO Act and as such, she deserves to be enlarged on bail. Mr. Rana, further contended that as per own case of the complainantprosecutrix, she was ravished by her brother 34 years back, but there is nothing on record that immediately after alleged incident, she ever reported the matter either to her mother(present bail petitioner) or to the police, rather she chose to keep mum for almost 4 years, which itself suggests that story put forth by the complainantprosecutrix, is not trustworthy. 5. Mr. Rana, while referring to the medical evidence adduced on record, made an attempt to persuade this Court to agree with his contention that no definite opinion, if any, with regard to forcible sexual intercourse, if any, committed by the brother of the complainantprosecutrix, who happened to be son of present bail petitioner, has been rendered. Lastly, Mr. Rana, contended that though there is no evidence at all on record to connect the present bail petitioner with the offence alleged to have been committed by her but even if for the sake of arguments, allegations are taken to be correct, only case which can be said to be against the bail petitioner is that she failed to lodge the report against the indecent behaviour of her son and person namely, Ravi Kumar despite having acquired knowledge. Mr. Rana, contended that it is yet to be established on record by the investigating agency that complainant prosecutrix had informed present bail petitioner with regard to aforesaid alleged incident and as such, it would not be proper to keep her behind the bars for indefinite period during the trial, especially when nothing is required to be recovered from her. 6. Mr. 6. Mr. Dinesh Thakur, learned Additional Advocate General, while fairly admitting the factum with regard to completion of investigation, contended that keeping in view the gravity of offence alleged to have been committed by the bail petitioner, who happened to be mother of the complainant prosecutrix, she does not deserve any sympathy, rather needs to be dealt with severely. While referring to the initial statement made by the complainantprosecutrix read with her statement recorded under Section 164 Cr.P.C, Mr. Thakur, contended that there is positive evidence adduced on record by the investigating agency suggestive of the fact that present bail petitioner even despite having acquired knowledge with regard to indecent behaviour of her son and person, namely Ravi Kumar failed to lodge complaint in the competent Court of law and as such, she has been rightly framed for having committed the offence under Section 21 of POCSO Act. 7. Having heard learned counsel for the parties and perused the material available on record, this Court finds that report with regard to incident, which allegedly took place 34 years back came to be lodged on 21.1.2019 by the complainant prosecutrix. As per the record, complainant prosecutrix was 14 years old at the time of alleged incident. It is not the case of the complainantprosecutrix that she immediately after illegal act committed upon her by her brother, had disclosed/ informed her mother, rather as per own statement of complainantprosecutrix, she disclosed factum with regard to incident, which had taken place 34 years back recently i.e. before filing of present complaint. Otherwise also, there is no material available on record suggestive of the fact that complainantprosecutrix made an attempt at any point of time to lodge complaint either to her mother or to the police. It is only few days prior to lodging of present complaint when allegedly coaccused Ravi Kumar made an attempt to outrage her modesty, complainantprosecutrix allegedly disclosed to her mother with regard to incident, which had allegedly occurred 34 years back. 8. It is only few days prior to lodging of present complaint when allegedly coaccused Ravi Kumar made an attempt to outrage her modesty, complainantprosecutrix allegedly disclosed to her mother with regard to incident, which had allegedly occurred 34 years back. 8. Otherwise also, perusal of complaint reveals that complainantprosecutrix only had prayed that she does not want to live with her mother and accordingly, since 21.1.2019 she has been residing in the open shelter, Kathed, District Solan, H.P. Leaving everything aside, in nutshell case of the investigating Agency against the present bail petitioner is that she failed to lodge report after having acquired knowledge with regard to illegal Act of her Son and coaccused Ravi Kumar from her daughter. However, this Court cannot loose sight of the fact that factum with regard to disclosure of illegal act of her brother and person, namely Ravi Kumar by the complainantprosecutrix to the present bail petitioner is yet to be established on record by the investigating agency by leading cogent and convincing evidence and as such, this Court sees no reason to curtail the freedom of bail petitioner, who is behind the bars since 23.1.2019. Otherwise also, bail petitioner in the case at hand is a woman and as such, her prayer for grant of bail is required to be considered in the light of the provisions contained under Section 437 Cr.P.C., wherein it has been provided that Court can direct a person referred to in clause (i) or clause (ii) of Section 437 Cr.P.C. to be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm. Since, nothing remains to be recovered from the present bail petitioner, there appears to be no justification for keeping her behind the bars for indefinite period during the trial. 9. It has been repeatedly held by Honble Apex Court as well as this Court that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved, in accordance with law. 10. Recently, the Honble 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. 10. Recently, the Honble 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. Honble 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. Honble 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. 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. 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 firsttime 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 ReInhuman Conditions in 1382 Prisons 11. 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 ReInhuman Conditions in 1382 Prisons 11. The Honble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 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 Honble 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 her 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 her furnishing personal bond in the sum of Rs. 1,00,000/ (Rs. One lakh) with one surety in the like amount, to the satisfaction of the learned trial Court, with following conditions: a. she shall make herself 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. she shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c. she 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. she shall not leave the territory of India without the prior permission of the Court. 15. It is clarified that if the petitioner misuses her liberty or violates any of the conditions imposed upon her, 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. Copy dasti.