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Himachal Pradesh High Court · body

2019 DIGILAW 1878 (HP)

Hem Raj v. State Of Himachal Pradesh

2019-12-09

SANDEEP SHARMA

body2019
JUDGMENT Sandeep Sharma, J. - Instant bail petition under Section 439 CrPC has been filed by the bail petitioner, namely Hem Raj, who is behind bars since 11.11.2019, for grant of regular bail in connection with FIR No. 259/19, dated 11.11.2019, under Sections 376, 417 and 506 of IPC, and Section 3 of SC/ST Act, registered at P.S. West Shimla, District Shimla, H.P. 2. In terms of order dated 27.11.2019, ASI Ramesh Lata, has come present alongwith records. Mr. Anil Jaswal, learned Additional Advocate General, has also placed on record status report prepared on the basis of investigation carried out by the Investigating Agency. Record perused and returned. 3. It emerges from the record/status report made available to this Court that, on 11.11.2019, victim-prosecutrix (name withheld) aged 28 years, lodged a complaint at PS Boileuganj, District Shimla, H.P., alleging therein that the bail petitioner has repeatedly sexually assaulted her against her wishes on the pretext of marriage. Victim-prosecutrix alleged that for the last six years, she has been residing in Shimla and in the year, 2017, bail petitioner met her at Arki and stated that he likes her. Victimprosecutrix alleged that since year 2017, she was in constant touch with the present bail petitioner. Victim-prosecutrix alleged that in April, 2018, bail petitioner took her to his quarter at Shiv Nagar on the pretext that his mother has come, but when she reached there, there was nobody in the quarter and bail petitioner thereafter sexually assaulted her against her wishes. She also alleged that after the aforesaid incident, which has occurred in April, 2018, bail petitioner has been sexually assaulting her against her wishes repeatedly on the pretext of marriage. She alleged that lastly, in the month of July, 2019, bail petitioner developed physical relations with her at his quarter at Shiv Nagar, but when she asked him to solemnize marriage, he refused on the ground that she hails from Scheduled Caste category. In the aforesaid background, victim- prosecutrix prayed that appropriate action in accordance with law be taken against the bail petitioner. On the basis of aforesaid statement made by victim-prosecutrix, FIR detailed herein above, came to be lodged against the bail petitioner on 11.11.2019 and since then, he is behind the Bars. 4. Mr. In the aforesaid background, victim- prosecutrix prayed that appropriate action in accordance with law be taken against the bail petitioner. On the basis of aforesaid statement made by victim-prosecutrix, FIR detailed herein above, came to be lodged against the bail petitioner on 11.11.2019 and since then, he is behind the Bars. 4. Mr. Anil Jaswal, learned Additional Advocate General, on the instructions of Investigating Officer, while fairly stating that nothing remains to be recovered from the bail petitioner, contended that keeping in view the gravity of offence alleged to have been committed by the bail petitioner, his application for grant of bail deserves outright rejection. Mr. Jaswal, further contended that report of SFSL is still awaited and as such, it would not be in the interest of justice to release the present bail petitioner on bail because in the event of his being enlarged on bail, he may not only flee from justice, rather may make an attempt to temper with the evidence. 5. Having heard learned counsel for the parties and perused material available on record, especially statements of victim-prosecutrix recorded under Sections 161 and 164 Cr.PC made before the police as well as Judicial Magistrate, respectively, this Court is convinced and satisfied that victim-prosecutrix and the bail petitioner had prior acquaintance and they were in constant touch since year, 2017. From the statement of victim-prosecutrix, it clearly emerges that since, 2017, there was intimate relationship inter-se her and the present bail petitioner. Though victim-prosecutrix has claimed that in April, 2018, she was sexually assaulted for the first time against her wishes by the bail petitioner at his quarter at Shiv Nagar, but it has further come in her statement that thereafter repeatedly they both maintained physical relations. Interestingly, at no point of time, complaint, if any, ever came to be lodged against the present bail petitioner at the behest of the victimprosecutrix, who is 28 years old lady, between August, 2018 to November, 2019. Though in the case at hand, victim-prosecutrix has claimed that lastly, she was sexually assaulted against her wishes by the bail petitioner in the month of July, 2019 and her request to solemnize marriage was turned down by the bail petitioner by stating that she hails from Scheduled Caste category, but it is not understood that what prevented victim-prosecutrix to lodge complaint in the month of July, 2019. In the case at hand, FIR admittedly came to be lodged on 11.7.2019 and there is no plausible explanation rendered on record on account of delay in lodging FIR. It appears that victim-prosecutrix and bail petitioner were in intimate relationship with each other since, 2017 but when bail petitioner refused to marry victim-prosecutrix, case at hand came to be lodged against the bail petitioner. 6. Though aforesaid aspects of the matter are to be considered and decided by the court below on the basis of totality of evidence collected on record by the Investigating Agency, but keeping in view the aforesaid glaring aspects of the matter, this Court is of the view that no fruitful purpose would be served in case bail petitioner is allowed to incarcerate in jail for an indefinite period, especially keeping in view the duration of relationship inter-se victim-prosecutrix and the bail petitioner. Moreover, no material worth the name has been adduced on record suggestive of the fact that in the event of petitioner''s being enlarged on bail, he may flee from justice and as such, this Court has reason to presume that petitioner being local resident of the area would always be available for investigation and trial as and when called by the Investigating Agency. It is well settled that one is deemed to be innocent until guilt, if any, of him/her is not proved in accordance with law. 7. 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. The Hon''ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation,2012 1 SCC 49 has categorically held that 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. 8. 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. 8. The Hon''ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh and 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 has 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. See. Manoranjana Sinh Alias Gupta versus CBI, (2017) 5 SCC 218 , Prasanta Kumar Sarkar v. Ashis Chatterjee and Another, (2010) 14 SCC 496 9. In view of the aforesaid discussion as well as law laid down by the Hon''ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 1,00,000/- with one surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate/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 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. (e) He shall handover passport to the Investigating Agency. 10. 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. 11. (e) He shall handover passport to the Investigating Agency. 10. 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. 11. 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.