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2025 DIGILAW 355 (HP)

Ram Kumar Thakur v. State of Himachal Pradesh

2025-03-12

SANDEEP SHARMA

body2025
JUDGMENT : (Sandeep Sharma, J. ) Bail petitioner namely Ram Kumar Thakur, who is behind the bars since 2.9.2024, has approached this court in the instant proceedings filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, for grant of regular bail, in case FIR No. 71/24 dated 20.9.2024, registered at Police Station Tissa, District Chamba, Himachal Pradesh, under Sections 376, 354A, 506 of IPC and Section 5 of Immoral Traffic Prevention Act, 1956. 2. Respondent-State has filed the status report and ASI Pardeep Singh, PS. Tissa, District Chamba, Himachal Pradesh, has come present with records. Record perused and returned. 3. Close scrutiny of status report as well as other material made available to this Court reveals that on 2.9.2024, victim-prosecutrix ( name withheld ) got her statement recorded under Section 173 of the BNSS, alleging therein that she is a domestic working woman and after passing 12th in the year 2019, she went to Smt. Amar Dei, wife of Sh. Ashok, to learn sewing. Allegedly, afore Amar Dei while teaching her as well as other students, used to teach them not to get married, roam around, drink and talk to boys. Allegedly, in the year 2020, Amar Dei took her to PGI, where her husband was admitted. She alleged that she stayed for a month at Chandigarh and thereafter, came back to Tissa with Amar Dei. She further alleged that in March 2021, Amar Dei took her to Chamba on the pretext that she will get her married to one Ram Thakur i.e. present bail petitioner, but when she reached Chamba, Amar Dei took her to hotel where she allegedly booked two rooms. In one room, present bail petitioner, who was already present there, made the victim-prosecutrix consume Pepsi mixed with some toxic substance. Allegedly, bail petitioner taking advantage of the situation sexually assaulted the victim-prosecutrix against her wishes. She alleged that when she confronted Amar Dei and present bail petitioner for their indecent behaviour, they not only extended threats, but also threatened to upload her obscene video and photos taken by the bail petitioner on the internet. Allegedly, bail petitioner taking advantage of the situation sexually assaulted the victim-prosecutrix against her wishes. She alleged that when she confronted Amar Dei and present bail petitioner for their indecent behaviour, they not only extended threats, but also threatened to upload her obscene video and photos taken by the bail petitioner on the internet. Present bail petitioner kept on sexually assaulting the victim-prosecutrix till the end of the year 2023 and when victim-prosecutrix stopped talking to the present bail petitioner, he allegedly sent her video on mobile phone of Amar Dei, who further sent it on the Whastapp of her husband (Ashok), who also started blackmailing the victim-prosecutrix. In the afore background, victim-prosecutrix lodged complaint against Amar Dei, Ashok and the present bail petitioner. Above named co-accused already stand enlarged on bail, whereas present bail petitioner is behind the bars for more than six months. Since investigation in the case is complete and nothing remains to be recovered from the bail petitioner, he has approached this Court in the instant proceedings, praying therein for grant of regular bail. 4. Mr. Rajan Kahol, learned Additional Advocate General, while acknowledging factum with regard to filing of the challan in the competent court of law, states 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 him, he does not deserves any leniency. He further states that report of RFSL is still awaited. While making this Court peruse record, especially statement made by victim-prosecutrix, Mr. Kahol states that there is overwhelming evidence adduced on record suggestive of the fact that bail petitioner not only sexually assaulted the victim-prosecutrix against her wishes, but also blackmailed her by making her video viral. Mr. Kahol states that since statement of victim-prosecutrix is yet to be recorded, it may not be in the interest of justice to enlarge him on bail, who in that event may not only flee from justice, but may cause harm to the victim-prosecutrix. 5. Having heard learned counsel for the parties and perused the material available on record, this Court finds that first, incident of sexual assault, if any, had taken place in the month of March 2021, but interestingly, no complaint was ever lodged by the victim-prosecutrix, rather after the aforesaid incident, she kept on joining the company of the bail petitioner. 5. Having heard learned counsel for the parties and perused the material available on record, this Court finds that first, incident of sexual assault, if any, had taken place in the month of March 2021, but interestingly, no complaint was ever lodged by the victim-prosecutrix, rather after the aforesaid incident, she kept on joining the company of the bail petitioner. As per own statement of the victim-prosecutrix, she remained in constant touch with the bail petitioner till the end of the year 2023, and during afore period, bail petitioner had sexually assaulted her twice/thrice against her wishes. No plausible explanation has been rendered on record by the prosecutrix that when in the year 2021, she was subjected to forcible sexual intercourse, where was the occasion for her to join the company of bail petitioner for two years. Apart from above, this Court finds that alleged incident of sexual assault had taken place in the end of 2023, but even at that time, no complaint was made, rather complaint, which ultimately culminated into FIR, was lodged on 2.9.2024. If the statements of victim-prosecutrix made before the police and Judicial Magistrate are perused juxtaposing each other, this court is not persuaded to agree with Mr. Rajan Kahol, learned Additional Advocate General that bail petitioner taking note of advantage of victim-prosecutrix sexually assaulted her against her wishes, rather there is ample material available on record to infer that victim-prosecutrix, who was major, of her own free will, had been joining the company of the bail petitioner and till the filing of the complaint, victim-prosecutrix kept silent. It is only after alleged uploading of video by the co-accused Ashok, she lodged complaint. Whether obscene video, if any, was uploaded on the internet by the present bail petitioner is a question to be determined by the trial court in the totality of evidence collected on record by the prosecution, but keeping in view of the aforesaid glaring aspect 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. 6. Hon’ble Apex Court as well as this Court in catena of cases have repeatedly held that one is deemed to be innocent till the time guilt, if any, of his/her is not proved in accordance with law. 6. Hon’ble Apex Court as well as this Court in catena of cases have repeatedly held that one is deemed to be innocent till the time guilt, if any, of his/her is not proved in accordance with law. Apprehension expressed by the learned Additional Advocate General that in the event of petitioner’s being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions as has been fairly stated by the learned counsel for the petitioner. 7. 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. 8. The Hon’ble 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. 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.” 9. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218 , The Hon’ble Apex Court has held as under:- “ This Court in Sanjay Chandra v. CBI, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that 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 found guilty. It was underlined that the object of bail is neither punitive or preventive. This Court sounded a caveat 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 a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and the grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted.” 10. 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. 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. 11. 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, 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. 12. 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. 12. 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 two local sureties 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. 13. 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. 14. 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. 15. The bail petitioner is permitted to produce copy of the order downloaded from the High Court Website and the trial court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.