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Himachal Pradesh High Court · body

2019 DIGILAW 222 (HP)

Rakesh Kumar v. State of Himachal Pradesh

2019-03-05

SANDEEP SHARMA

body2019
JUDGMENT : SANDEEP SHARMA, J. 1. Bail petitioner namely, Rakesh Kumar, has approached this Court in the instant proceedings filed under Section 438 of the Code of Criminal Procedure, praying therein for grant of anticipatory bail in case FIR No. 64 of 2018, dated 31.12.2018, under Sections 376, 323 and 506 of IPC, registered at police Station, Mcleodganj, District Kangra, Himachal Pradesh. 2. Sequel to order dated 4.2.2019, ASI Rakesh Parmar has come present alongwith the record. Mr. Dinesh Thakur, learned Additional Advocate General, has also placed on record fresh 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 31.12.2018, complainant (hereinafter referred to as the prosecutrix) got her statement recorded under Section 154 Cr.P.C., at police Station Mcleodganj, District Kangra, Himachal Pradesh, alleging therein that she knows the bail petitioner since 2009 and since school time, they had close relationship. Prosecutrix further alleged in the complaint that since year, 2013, bail petitioner has been sexually assaulting her against her wishes on the pretext of marriage. She further alleged that bail petitioner did not allow her to continue her study after 10+2. Lastly, in April, 2018, bail petitioner forcibly committed sexual assault upon her against her wishes at place called Bhagsu road (Galli). She further alleged that in the year, 2017 her mother met bail petitioner with a proposal to marry prosecutrix, but bail petitioner blatantly refused. She further alleged that on 27.11.2018, at 6:30 PM, bail petitioner and his family members came to her house and threatened her as well as her family members. On the basis of aforesaid statement having been made by the prosecutrix, FIR detailed hereinabove, came to be lodged against the present bail petitioner. This Court vide order dated 2.1.2019, ordered that bail petitioner be enlarged on bail in the event of his arrest subject to his joining investigation. 4. Mr. Dinesh Thakur, learned Additional Advocate General, on the instructions of Investigating Officer, who is present in Court, fairly states that petitioner had been fully co-operating in the investigation since 2.1.2019 and at this stage, nothing remains to be recovered from him. Mr. Thakur, further states that investigation is complete and challan shall be filed shortly. 5. Mr. 4. Mr. Dinesh Thakur, learned Additional Advocate General, on the instructions of Investigating Officer, who is present in Court, fairly states that petitioner had been fully co-operating in the investigation since 2.1.2019 and at this stage, nothing remains to be recovered from him. Mr. Thakur, further states that investigation is complete and challan shall be filed shortly. 5. Mr. Rajesh Mandhotra, learned counsel representing the bail petitioner, while making this Court to travel through the record/status report, made serious attempt to persuade this Court to agree with his contention that there is nothing on record suggestive of the fact that prosecutrix was subjected to sexual intercourse forcibly against her wishes by the bail petitioner, rather her own statement itself reveals that she had closed proximity with the bail petitioner and as such, no case, if any, is made out under Section 376 of IPC against the bail petitioner. Mr. Mandhotra, while referring to the record, further argued that there is ample material adduced on record by the investigating agency suggestive of the fact that prosecutrix and her family had been pressurizing the bail petitioner to solemnize marriage with the prosecutrix. While referring to the medical evidence adduced on record by the investigating agency, Mr. Mandhotra, contended that there is no evidence at all to demonstrate forcible sexual intercourse, rather report of FSL totally belies the story put forth by the prosecutrix with regard to forcible sexual intercourse. Lastly, Mr. Mandhotra, contended that bail petitioner is young boy of 28 years and there is no case, if any, pending in any court of law and as such, he being first offender deserves to be enlarged on bail. 6. Learned Additional Advocate General, while praying for rejection of present bail petition having been filed by the petitioner, contended that keeping in view the gravity of offence alleged to have been committed by the bail petitioner, he does not deserve any leniency, rather needs to be dealt with severely. He further contended that though record/status report reveals that prosecutrix and bail petitioner were known to each other for quite long, but that could not be a ground for bail petitioner to commit sexual assault upon the prosecutrix against her wishes. He further contended that though record/status report reveals that prosecutrix and bail petitioner were known to each other for quite long, but that could not be a ground for bail petitioner to commit sexual assault upon the prosecutrix against her wishes. He further contended that since prosecutrix was subjected to medical examination after considerable time of alleged incident, no reliance, if any, can be placed by learned counsel for the petitioner on medical evidence at this stage. Lastly, Mr. Thakur, contended that bail petitioner in his statement given to the police has himself accepted that in the month of April, 2018, he had forcibly sexually assaulted the prosecutrix and as such, bail petition having been filed by the bail petitioner deserve out right rejection. 7. Having heard learned counsel for the parties and perused the material available on record by the Investigating Agency, this Court finds that there is ample evidence adduced on record suggestive of the fact that prosecutrix had been meeting bail petitioner since the year, 2009. She has categorically stated in her complaint that she knows bail petitioner since school time. As per prosecutrix, bail petitioner had sexually assaulted her against her wishes first time in the year, 2013, but there is no material available on record, from where it can be inferred that after aforesaid alleged incident prosecutrix ever made an attempt to lodge complaint either to police or his parents, rather her silence till lodging of the present FIR, which came to be lodged on 31.12.2018, certainly compels this Court to agree with the contention of learned counsel representing the bail petitioner that prosecutrix of her own volition had been joining the company of bail petitioner. Moreover, prosecutrix is major and as such, it cannot be said that she was not aware of the consequences of her being in the company of bail petitioner, to whom she knew for the last nine years. It appears that the prosecutrix wanted to marry present bail petitioner, but on account of certain differences, proposal could not be materialized and as such, case at hand came to be lodged against the present bail petitioner. It appears that the prosecutrix wanted to marry present bail petitioner, but on account of certain differences, proposal could not be materialized and as such, case at hand came to be lodged against the present bail petitioner. No doubt, as per the record, bail petitioner has admitted the factum with regard to subjecting prosecutrix to sexual assault in the year, 2018 against her wishes, but that cannot be a ground at this stage to reject the bail, especially in view of the medical evidence available on record. 8. Though, aforesaid aspects of the matter are to be considered and decided by the learned court below on the basis of the totality of evidence to be placed on record by the investigating agency during the trial, but having carefully perused the material, which has been otherwise taken note hereinabove, this Court sees no reason for the custodial interrogation of the bail petitioner, who has otherwise joined the investigation, as has been fairly admitted by the learned Additional advocate General. 9. It has been repeatedly held by Hon'ble 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 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. 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. 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. 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 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. 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 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. 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, behavior, 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, order dated 2.1.2019, passed by this Court is made absolute subject to the petitioner 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 Investigating Officer, besides the following conditions: a. He 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. 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. 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.