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2021 DIGILAW 572 (HP)

Ravi Kumar S/o Sh. Kishan Lal v. State of H. P.

2021-08-18

SANDEEP SHARMA

body2021
ORDER : 1. Bail petitioner-Ravi Kumar, who is behind bars since 1.8.2021, has approached this court in the instant proceedings filed under S.439 Cr.P.C. for grant of regular bail in FIR No. 59, dated 21.7.2021, registered at Police Station Parwanoo, District Solan, under S. 354D IPC and S.4 of the Protection of Children from Sexual Offences Act. 2. Status report filed in terms of order dated 4.8.2021, reveals that the victim-prosecutrix (name withheld) lodged a complaint at Police Station Parwanoo, on 21.7.2021, alleging therein that bail petitioner resides at a distance of 1 km from her house and he has been stalking her for so many days. She alleged that bail petitioner keeps on pressurizing her for marriage, as a consequence of which she is under mental stress. She alleged that though she repeatedly conveyed to the bail petitioner that she does not want to marry her but yet the bail petitioner stalks her. She alleged that on 19.7.2201, at 3.30 p.m. while she was grazing her cattle at a distance of 200 metre from her house, bail petitioner contacted her and asked her to solemnize marriage with him but she refused. In the aforesaid background, FIR detailed herein above, came to be lodged against the bail petitioner, who approached court of learned Special Judge Solan, for interim bail. Initially bail petitioner was enlarged on bail but ultimately on 31.7.2021 bail granted in his favour came to be cancelled as a result of which, bail petitioner is behind the bars since 1.8.2021. Since investigation is almost complete and nothing remains to be recovered from bail petitioner, he has approached this court in the instant proceedings. 3. Mr. Narinder Thakur, learned Deputy Advocate General, while fairly admitting factum with regard to completion of investigation submits that though nothing remains to recovered from bail petitioner but keeping in view gravity of offence alleged to have been committed by the bail petitioner, prayer made on his behalf for grant of bail, deserves outright rejection. Mr. 3. Mr. Narinder Thakur, learned Deputy Advocate General, while fairly admitting factum with regard to completion of investigation submits that though nothing remains to recovered from bail petitioner but keeping in view gravity of offence alleged to have been committed by the bail petitioner, prayer made on his behalf for grant of bail, deserves outright rejection. Mr. Thakur, Learned Deputy Advocate General, further contends that there is ample evidence collected on record suggestive of the fact that bail petitioner has been troubling victim-prosecutrix for months together and as such, in the event of being enlarged on bail, bail petitioner may not only flee from justice but can cause harm to victim-prosecutrix as such, prayer for grant of bail made on behalf of the bail petitioner, deserves rejection outrightly. 4. Having heard learned counsel for the parties and perused material available on record, this court finds that victim-prosecutrix lodged complaint alleging therein that bail petitioner had been following/stalking her for so many days and he constantly put pressure on her to solemnize marriage with him. Since victim-prosecutrix is not interested to marry the bail petitioner, she refused to meet the bail petitioner but yet he kept on stalking her. Bare perusal of complaint nowhere discloses offence, if any, under S.11 of Act because ‘sexual harassment’ as defined under S.11 of the Act can be said to be committed when a person, with ‘sexual intent’ utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or makes a child exhibit his body or any part of his body so as it is seen by such person or any other person. Though S.11 (iv) of the Act talks about stalking also but to constitute ‘sexual harassment’ stalking has to be with ‘sexual intent’. In the instant case, though there is allegation that bail petitioner constantly follows/stalks the victim-prosecutrix and pressurizes her for marriage, there is no allegation that he did the same with sexual intent. 5. Though S.11 (iv) of the Act talks about stalking also but to constitute ‘sexual harassment’ stalking has to be with ‘sexual intent’. In the instant case, though there is allegation that bail petitioner constantly follows/stalks the victim-prosecutrix and pressurizes her for marriage, there is no allegation that he did the same with sexual intent. 5. Though, the aforesaid aspect of the matter is to be dealt by learned trial court in the totality of evidence led on record, but having taken note of the complaint of victim-prosecutrix, there appears to be no reason at this stage for this court to conclude guilt, if any of bail petitioner under S.11 of the Act. Similarly, this court finds that the offence, if any under S.354D IPC, if committed for the first time is bailable. Since there is nothing in the status report suggestive of the fact that any other case under S.354D stood registered against bail petitioner prior to lodging of FIR, prayer for grant of bail made by the bail petitioner otherwise deserves to be considered. Leaving everything aside, guilt, if any of the petitioner is yet to established in the totality of evidence led on record by prosecution as such, it would not be in the interests of justice to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when nothing remains to be recovered from him. Apprehension expressed by learned Deputy Advocate General that in the event of being enlarged on bail, bail petitioner can harm victim-prosecutrix can be best met by putting bail petitioner to stringent conditions. 6. Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh and Another 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. 7. Hon’ble Apex Court in Sanjay Chandra vs. Central Bureau of Investigation, (2012) 1 SCC 49 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. 7. Hon’ble Apex Court in Sanjay Chandra vs. Central Bureau of Investigation, (2012) 1 SCC 49 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. In Manoranjana Sinh alias Gupta vs. CBI, (2017) 5 SCC 218 , Hon'ble Apex Court has held that the 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 vs. Ashis Chatterjee and Another, (2010) 14 SCC 496 , has laid down various principles to be kept in mind, while deciding petition for bail viz. prima-facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced. 10. In view of above, bail petitioner has carved out a case for himself, as such, present petition is allowed. Bail petitioner is ordered to be enlarged on bail, subject to his furnishing bail bonds in the sum of Rs. 50,000/- with one local surety in the like amount, to the satisfaction of learned trial Court, 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. (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. (d) He shall not leave the territory of India without the prior permission of the Court. 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 the petition alone. 13. The petition stands accordingly disposed of.