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.
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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
.
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
.
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 beconsidered a punishment, unless it can be required
to ensure that an accused person will stand his trialwhen 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 trialcould be a cause of great hardship. From time to
time, necessity demands that some unconvicted
persons should be held in custody pending trial tosecure 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 personalliberty enshrined in the Constitution that any
person should be punished in respect of any matter,
upon which, he has not been convicted or that inany 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 an11/11/2017 23:00:33 :::HCHP
6unconvicted 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 inflexibleguidelines in this respect because all circumstances
and situations of future cannot be clearly visualizedfor 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 inSibbia’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 useof 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 arebound 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 inthe case. The cases in which accused is
implicated with the help of sections 34 and149 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 struckbetween two factors namely, no prejudice
should be caused to the free, fair and full
investigation and there should be preventionof 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)11/11/2017 23:00:33 :::HCHP
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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 ofthe 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 alsobe 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 exclusiveterminology, that the superior Courts of Sessions
and High Court are bereft of this jurisdiction or ifthey 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 thecommission of a non-bailable offence punishable
with death or imprisonment for life, unless it is
apparent to such a Court that it is incredible orbeyond the realm of reasonable doubt that the
accused is guilty. The enquiry of the Magistrate
placed in this position would be akin to what isenvisaged 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 thenpresented 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 is11/11/2017 23:00:33 :::HCHP
9done, 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 Courtsto 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 commissionof 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 adequatelyadumbrated by the common law maxim, viz. ‘where
there is a right there is a remedy’. The universalright 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 inperspective the fact that Parliament has carried out
amendments to this pandect comprising Sections
437 to 439, and, therefore, predicates on the wellestablished 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 offenceand 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 higher11/11/2017 23:00:33 :::HCHP
10Courts 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 possiblehiatus 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.
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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