Rajinder Kumar vs State Of Himachal Pradesh on 7 November, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CrMP(M) No. 1369 of 2017
Decided on November 7, 2017

.
Rajinder Kumar … Petitioner

Versus
State of Himachal Pradesh Respondent

Coram:

Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 yes.

For the petitioner : Mr. Ashwani Dhiman, Advocate.

For the respondent : Mr. P.M. Negi, Additional Advocate
General.

ASI Ranjeet Singh, I/O, Police
r Station, Keylong, District Lahaul
Spiti.

Sandeep Sharma, Judge (oral):

By way of instant bail petition filed under Section 439

CrPC, prayer has been made for grant of bail in case FIR No.

23/17 dated 14.6.2017 under Sections 354-A and 342 IPC and

Section 10 of Protection of Children from Sexual Offences Act,

registered at Police Station, Keylong.

2. Sequel to order dated 30.10.2017, ASI Ranjeet Singh, has

come present with the record. Mr. P.M. Negi, learned Additional

Advocate General has also placed on record status report,

prepared on the basis of investigation carried out by the

investigating agency till date. Record perused and returned.

1

Whether the reporters of the local papers may be allowed to see the judgment?

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3. Record/status report reveals that aforesaid FIR came to

be registered against bail petitioner at the behest of one Rakesh

Chandel, who at the relevant time, was Head Master of

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Government Senior Secondary School, Jahlma, alleging therein

that he received one complaint from the mother of the

prosecutrix that bail petitioner, who at the relevant time was

Security Trainer in the School, made an attempt to outrage

modesty of her daughter. Aforesaid Headmaster referred

complaint to the Sexual Harassment Committee, which in its

report conformed and acknowledged the allegations made by

the victim/prosecutrix. Record further discloses that bail

petitioner taking advantage of innocence of the prosecutrix

/victim made an attempt to outrage her modesty, which factum

was subsequently disclosed by the prosecutrix to her friends,

who at the relevant time were waiting for her outside the lab. It

also emerges from the record that subsequently, aforesaid

incident came to be reported by the friends of the victim to the

other teachers of the school. After registration of FIR, bail

petitioner is in custody since 14.6.2017 i.e. for the last five

months.

4. Mr. Ashwani Dhiman, learned counsel representing the

petitioner submits that investigation in the case is complete and

at this stage, nothing is required to be recovered from the bail

petitioner, as such, he deserves to be enlarged on bail, more

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particularly when he has already suffered for more than five

months. Learned counsel representing the petitioner further

states that bail petitioner is a local resident of the area and

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there is no likelihood of his fleeing from justice.

5. Mr. P.M. Negi, learned Additional Advocate General, while

opposing aforesaid prayer having been made by the learned

counsel representing the petitioner contended that there is

overwhelming evidence on record collected by investigating

agency suggestive of the fact that bail petitioner has committed

offences punishable under Sections 354-A and 342 IPC and

Section 10 of the Protection of Children from Sexual Offences

Act and as such he does not deserve to be shown any leniency

by this Court, rather he needs to be dealt with severely as it

would be a deterrence for the others. While referring to the

statements made by other students, who verified the version

put forth by the prosecutrix/victim, Mr. Negi, contended that

this is not the sole incident, which bail petitioner has indulged

in, rather there are so many incidents, which have gone

unnoticed as is quite evident from the record. However, Mr.

Negi, fairly stated that investigation in the case is complete and

Challan stands presented in the competent Court of law and

since 19.6.2017, bail petitioner is in judicial custody.

6. I have heard the learned counsel for the parties and gone

through the record carefully.

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7. Though this Court, after having perused record/status

report sees no force in the arguments of learned counsel

representing the petitioner that there is no evidence available on

.

record, suggestive of the fact that bail petitioner has not made

attempt to outrage modesty of the prosecutrix, rather, this court

finds that prosecution has placed on record ample evidence in

support of version put forth by the prosecutrix.

8. True it is, that there appears to be delay of 6-7 days in

lodging FIR, but that may not be sufficient to conclude that

petitioner has been falsely implicated in the case. Though,

aforesaid aspect of the matter is to be considered and decided

by the trial Court on the basis of evidence adduced on record,

but this Court, taking note of the fact that bail petitioner has

already suffered for more than five months, for the offence

allegedly committed by him and his guilt is yet to be proved by

the prosecution by leading cogent and convincing evidence, as

such, it would not be proper to allow petitioner to incarcerate in

jail for indefinite period. This Court can not lose sight of the fact

that freedom of an individual cannot be allowed to be curtailed

till the time guilt of the petitioner is proved in accordance with

law.

9. By now it is well settled that gravity alone cannot be

decisive ground to deny bail, rather competing factors are

required to be balanced by the court while exercising its

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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. The Hon’ble

Apex Court in Sanjay Chandra versus Central Bureau of

Investigation (2012)1 Supreme Court Cases 49; has been 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. 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

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unconvicted person for the propose of giving him a
taste of imprisonment as a lesson.”

10. Law with regard to grant of bail is now well settled. The

.

Apex Court in Siddharam Satlingappa Mhetre versus State of

Maharashtra and others, (2011) 1 SCC 694, while relying upon

its decision rendered by its Constitution Bench in Gurbaksh

Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565, laid down

the following parameters for grant of bail:-

“111. No inflexible guidelines or straitjacket formula
can be provided for grant or refusal of anticipatory
bail. We are clearly of the view that no attempt
should be made to provide rigid and inflexible

guidelines in this respect because all circumstances
and situations of future cannot be clearly visualized

for the grant or refusal of anticipatory bail. In
consonance with the legislative intention the grant
or refusal of anticipatory bail should necessarily
depend on facts and circumstances of each case. As
aptly observed in the Constitution Bench decision in

Sibbia’s case (supra) that the High Court or the
Court of Sessions to exercise their jurisdiction
under
section 438 Cr.P.C. by a wise and careful use

of their discretion which by their long training and
experience they are ideally suited to do. In any
event, this is the legislative mandate which we are

bound to respect and honour.

112. The following factors and parameters can be

taken into consideration while dealing with the
anticipatory bail:

(i) The nature and gravity of the accusation
and the exact role of the accused must be
properly comprehended before arrest is made;

(ii) The antecedents of the applicant including
the fact as to whether the accused has
previously undergone imprisonment on
conviction by a Court in respect of any
cognizable offence;

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(iii) The possibility of the applicant to flee from
justice;

(iv) The possibility of the accused’s likelihood

.

to repeat similar or the other offences.

(v) Where the accusations have been made
only with the object of injuring or humiliating
the applicant by arresting him or her.

(vi) Impact of grant of anticipatory bail
particularly in cases of large magnitude
affecting a very large number of people.

(vii) The courts must evaluate the entire
available material against the accused very
carefully. The court must also clearly
comprehend the exact role of the accused in

the case. The cases in which accused is
implicated with the help of
sections 34 and

149 of the Indian Penal Code, the court
should consider with even greater care and
caution because over implication in the cases
is a matter of common knowledge and
concern;

(viii) While considering the prayer for grant of
anticipatory bail, a balance has to be struck

between two factors namely, no prejudice
should be caused to the free, fair and full
investigation and there should be prevention

of harassment, humiliation and unjustified
detention of the accused;

(ix) The court to consider reasonable
apprehension of tampering of the witness or
apprehension of threat to the complainant;

(x) Frivolity in prosecution should always be
considered and it is only the element of
genuineness that shall have to be considered
in the matter of grant of bail and in the event
of there being some doubt as to the
genuineness of the prosecution, in the normal
course of events, the accused is entitled to an
order of bail.” (Emphasis supplied)

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11. Hon’ble Apex Court, in Sundeep Kumar Bafna versus

State of Maharashtra (2014)16 SCC 623, has held as under:-

“8. Some poignant particulars of Section 437 CrPC

.

may be pinpointed. First, whilst Section 497(1) of

the old Code alluded to an accused being “brought
before a Court”, the present provision postulates the
accused being “brought before a Court other than
the High Court or a Court of Session” in respect of

the commission of any non-bailable offence. As
observed in Gurcharan Singh vs State( Delhi Admn)
(1978) 1 SCC 118, there is no provision in the
CrPC
dealing with the production of an accused before the
Court of Session or the High Court. But it must also

be immediately noted that no provision categorically
prohibits the production of an accused before either
of these Courts. The Legislature could have easily
enunciated, by use of exclusionary or exclusive

terminology, that the superior Courts of Sessions
and High Court are bereft of this jurisdiction or if

they were so empowered under the Old Code now
stood denuded thereof. Our understanding is in
conformity with Gurcharan Singh, as perforce it
must. The scheme of the
CrPC plainly provides that
bail will not be extended to a person accused of the

commission of a non-bailable offence punishable
with death or imprisonment for life, unless it is
apparent to such a Court that it is incredible or

beyond the realm of reasonable doubt that the
accused is guilty. The enquiry of the Magistrate
placed in this position would be akin to what is

envisaged in State of Haryana vs Bhajan Lal, 1992
(Supp)1 SCC 335, that is, the alleged complicity of
the accused should, on the factual matrix then

presented or prevailing, lead to the overwhelming,
incontrovertible and clear conclusion of his
innocence.
CrPC severely curtails the powers of the
Magistrate while leaving that of the Court of Session
and the High Court untouched and unfettered. It
appears to us that this is the only logical conclusion
that can be arrived at on a conjoint consideration of
Sections 437 and 439 of the CrPC. Obviously, in
order to complete the picture so far as concerns the
powers and limitations thereto of the Court of
Session and the High Court,
Section 439 would
have to be carefully considered. And when this is

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done, it will at once be evident that the CrPC has
placed an embargo against granting relief to an
accused, (couched by us in the negative), if he is not
in custody. It seems to us that any persisting
ambivalence or doubt stands dispelled by the

.

proviso to this Section, which mandates only that

the Public Prosecutor should be put on notice. We
have not found any provision in the
CrPC or
elsewhere, nor have any been brought to our ken,
curtailing the power of either of the superior Courts

to entertain and decide pleas for bail. Furthermore,
it is incongruent that in the face of the Magistrate
being virtually disempowered to grant bail in the
event of detention or arrest without warrant of any
person accused of or suspected of the commission

of any non-bailable offence punishable by death or
imprisonment for life, no Court is enabled to extend
him succour. Like the science of physics, law also
abhors the existence of a vacuum, as is adequately

adumbrated by the common law maxim, viz. ‘where
there is a right there is a remedy’. The universal

right of personal liberty emblazened by Article 21 of
our Constitution, being fundamental to the very
existence of not only to a citizen of India but to
every person, cannot be trifled with merely on a
presumptive plane. We should also keep in

perspective the fact that Parliament has carried out
amendments to this pandect comprising
Sections
437 to
439, and, therefore, predicates on the well

established principles of interpretation of statutes
that what is not plainly evident from their reading,
was never intended to be incorporated into law.

Some salient features of these provisions are that
whilst
Section 437 contemplates that a person has
to be accused or suspect of a non-bailable offence

and consequently arrested or detained without
warrant,
Section 439 empowers the Session Court
or High Court to grant bail if such a person is in
custody. The difference of language manifests the
sublime differentiation in the two provisions, and,
therefore, there is no justification in giving the word
‘custody’ the same or closely similar meaning and
content as arrest or detention. Furthermore, while
Section 437 severally curtails the power of the
Magistrate to grant bail in context of the
commission of non-bailable offences punishable
with death or imprisonment for life, the two higher

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Courts have only the procedural requirement of
giving notice of the Bail application to the Public
Prosecutor, which requirement is also ignorable if
circumstances so demand. The regimes regulating
the powers of the Magistrate on the one hand and

.

the two superior Courts are decidedly and

intentionally not identical, but vitally and drastically
dissimilar. Indeed, the only complicity that can be
contemplated is the conundrum of ‘Committal of
cases to the Court of Session’ because of a possible

hiatus created by the CrPC.”

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 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. Petitioner is local resident

of addresses given in memo of parties and shall remain

available to face the trial and to undergo imprisonment, if any,

which may be imposed on conclusion of the trial.

13. The Apex Court in Prasanta Kumar Sarkar versus Ashis

Chatterjee and another (2010) 14 SCC 496, has laid down the

following principles to be kept in mind, while deciding petition

for bail:

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(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.

14.

In view of the aforesaid discussion, petitioner has carved

out a case for grant of bail. Since, statements of prosecutrix as

well as other material witnesses are yet to be recorded on

28.11.2017, this Court deems it fit to direct the bail petitioner

to ensure that he does not enter Village Jahlma, till such time,

statements of prosecutrix and other witnesses are recorded by

the trial court.

15. In view of above, present petition is allowed and the

petitioner is ordered to be enlarged on bail in the

aforementioned FIR, subject to furnishing personal bonds in the

sum of Rs.25,000/- with one surety in the like amount to the

satisfaction of learned Chief Judicial Magistrate, concerned 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;

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(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

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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.

16. 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.

17. Any observations
r to
made hereinabove shall

construed to be a reflection on the merits of the case and shall
not be

remain confined to the disposal of present petition alone.

The petition stands accordingly disposed of.

Copy dasti.

(Sandeep Sharma)
Judge

November 7, 2017
(vikrant)

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