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2020 DIGILAW 293 (HP)

Ritesh v. State Of Himachal Pradesh

2020-05-27

SANDEEP SHARMA

body2020
JUDGMENT Sandeep Sharma, J. - By way of present petition filed under S.439 CrPC, prayer has been made on behalf of the petitioner, who is behind the bars since 16.1.2020, for grant of regular bail in FIR No. 2, dated 9.1.2020, under Ss. 376 and 506 IPC, registered at Women Police Station, Baddi, District Solan, Himachal Pradesh. 2. Sequel to order dated 20.5.2020, respondent-State besides filing the status report has also made available copy of statement of the prosecutrix recorded under S.164 CrPC as also the MLC, perusal whereof reveals that on 9.1.2020, victim-prosecutrix, aged 26 years, (name withheld) lodged a complaint at Women Police Station, Baddi, District Solan, Himachal Pradesh, stating therein that the bail petitioner, whom she knew for quite a considerable time, has repeatedly sexually assaulted her against her wishes. She also alleged that since the year 2017, she has been working with Eastman Auto & Power Ltd. and in the year 2018, she came in contact with the bail petitioner and since then, they were good friends. She alleged that in the year 2019, she also attended the marriage of the bail petitioner, who immediately after his marriage, confided in her that he (bail petitioner) was not happy with his marriage and wanted to solemnise marriage with her(victim-prosecutrix). Victim-prosecutrix further alleged that despite her repeated requests, the bail petitioner, kept on insisting upon her to solemnise marriage with him. Victim-prosecutrix also alleged that in October 2019, bail petitioner came to her room and sexually assaulted her against her wishes on the pretext of marriage. She disclosed to the Police that though immediately after the aforesaid incident, she wanted to report the matter to the Police but on the request of the bail petitioner, she did not lodge report against the bail petitioner. However, in November 2019, bail petitioner again sexually assaulted her against her wishes, whereafter, she became pregnant. Victim-prosecutrix alleged that she, after having acquired knowledge of her pregnancy, contacted the bail petitioner but he not only refused to marry her but advised to terminate the pregnancy. In the aforesaid background, FIR as detailed herein above, came to be lodged against the bail petitioner on 9.1.2020 and since 16.1.2020, the bail petitioner is behind the bars. 3. Mr. Victim-prosecutrix alleged that she, after having acquired knowledge of her pregnancy, contacted the bail petitioner but he not only refused to marry her but advised to terminate the pregnancy. In the aforesaid background, FIR as detailed herein above, came to be lodged against the bail petitioner on 9.1.2020 and since 16.1.2020, the bail petitioner is behind the bars. 3. Mr. Arvind Sharma, learned Additional Advocate General, while fairly admitting the factum with regard to completion of investigation, contends that though nothing remains to be recovered from the bail petitioner but keeping in view the gravity of offence alleged to have been committed by bail petitioner, he does not deserve any leniency rather the bail petitioner needs to be dealt with severely as such, present petition may be rejected outrightly. Mr. Sharma, learned Additional Advocate General, while referring to the statements of victim-prosecutrix recorded under Ss. 154 and 164 CrPC, made a serious attempt to persuade this Court to agree with his contention that the bail petitioner repeatedly sexually assaulted the victim-prosecutrix against her wishes on the pretext of marriage, as such, he does not deserve any leniency. While referring to the medical evidence adduced on record, Mr. Sharma, learned Additional Advocate General contends that it stands established on record that the bail petitioner is the biological father of the foetus in the womb of the victim-prosecutrix, as such, bail petitioner has been rightly charged with offence under S.376 IPC. 4. Having heard learned counsel for the parties and perused the material available on record, especially statements of the victim-prosecutrix recorded under Ss. 154 and 164 CrPC, it is quite apparent that the victim-prosecutrix and the bail petitioner were known to each other since 2018 and during this time, they had developed good friendship. As per own statement of the victim-prosecutrix, marriage of the bail petitioner was solemnised in the year 2019 but despite knowing aforesaid factum, victim-prosecutrix kept on meeting bail petitioner, who allegedly sexually assaulted her against her wishes. If statement of the victim-prosecutrix recorded under S.164 CrPC is perused in its entirety, it clearly reveals that the victim-prosecutrix had disclosed to the wife of the bail petitioner that he wanted to marry her (victim-prosecutrix). As per own statement of the victim-prosecutrix, wife of the bail petitioner had told her (victim-prosecutrix) that she would leave her husband (bail petitioner), to facilitate their marriage. As per own statement of the victim-prosecutrix, wife of the bail petitioner had told her (victim-prosecutrix) that she would leave her husband (bail petitioner), to facilitate their marriage. Leaving everything aside, this Court finds that the first alleged assault took place in October, 2019 but no report ever came to be lodged against bail petitioner at that juncture, rather victim-prosecutrix again permitted bail petitioner to have sexual intercourse with her in November, 2019. Moreover, factum with regard to pregnancy had come to the notice of the victim-prosecutrix in December, 2019 as per her own statement but instead of lodging complaint, if any, against the bail petitioner, she kept on requesting the bail petitioner to marry her. It is only after refusal, if any, by the bail petitioner to marry her that the victim-prosecutrix lodged FIR against the bail petitioner on 9.1.2020, i.e. after 2-3 months of alleged sexual assaults. Victim-prosecutrix, was 26 years of age at the time of alleged assault as such, it cannot be said that she was incapable of understanding the consequences of her continuing in relationship with the bail petitioner, who was already married. There is nothing in the statement of the victim-prosecutrix, from where it can be inferred that she was subjected to forcible sexual intercourse by the bail petitioner, rather, as per statement of the victim-prosecutrix itself, bail petitioner kept on sexually assaulting her on the pretext of marriage. As has been taken note herein-above, victim-prosecutrix despite there being sufficient opportunities, failed to lodge a complaint/FIR against the bail petitioner at the first instance, rather, she, after having suffered forcible sexual assault in October, 2019, again allowed him to sexually assault her in November, 2019, as such, it is difficult to conclude at this stage that the bail petitioner took undue advantage of his friendship with the victim-prosecutrix. No doubt, medical evidence on record indicates that the bail petitioner is the biological father of the foetus borne by the victim-prosecutrix but that fact cannot be a ground to deny bail to the bail petitioner, especially when conduct of the victim- prosecutrix itself suggests that she was involved with the bail petitioner and wanted to marry him. 5. No doubt, medical evidence on record indicates that the bail petitioner is the biological father of the foetus borne by the victim-prosecutrix but that fact cannot be a ground to deny bail to the bail petitioner, especially when conduct of the victim- prosecutrix itself suggests that she was involved with the bail petitioner and wanted to marry him. 5. Though the 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 taken note of the aforesaid glaring aspects of the matter, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when nothing remains to be recovered from him. There is no material on record suggestive of the fact that in the event of bail petitioner being enlarged on bail, he may flee from justice or may cause harm or dissuade the prosecution witnesses from deposing against him. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions 6. 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 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. 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. 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. 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." 7. In Sanjay Chandra versus Central Bureau of Investigation, (2012) 1 SCC 40 , Hon'ble Apex Court has held 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. The object of bail is neither punitive nor preventative. 8. 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. 9. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another, (2010) 14 SCC 496 , has laid down the various principles to be kept in mind, while deciding petition for bail i.e. prima facie case against the accused, nature and gravity of offence, severity of punishment, likelihood of repeating of the offence by accused etc. 10. 9. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another, (2010) 14 SCC 496 , has laid down the various principles to be kept in mind, while deciding petition for bail i.e. prima facie case against the accused, nature and gravity of offence, severity of punishment, likelihood of repeating of the offence by accused etc. 10. In view of above, bail petitioner has carved out a case for himself. Consequently, present petition is allowed. Petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs.2,00,000/- with one local surety in the like amount, to the satisfaction of the Magistrate available at the station, 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; and (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. 11. 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. 12. 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. The petition stands accordingly disposed of.