Vidya Devi vs State Of Himachal Pradesh on 12 December, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No1466 of 2017.
Decided on: 12.12.2017.

.
Vidya Devi …….. Petitioner.

Versus

State of Himachal Pradesh. …..Respondent.
__
Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1

For the petitioner: Mr. C.N. Singh, Advocate.

For the respondent: Mr. P.M. Negi, Additional Advocate
r General.
ASI Dula Ram, Police Station Shillai,

District Sirmour, H.P., present along with
record.

Sandeep Sharma, Judge (oral):

By way of instant bail petition filed under Section 438

of the Code of Criminal Procedure, a prayer has been made for

grant of anticipatory bail in case FIR No. 70/2017, dated 01.12.2017,

under Sections 342, 366,363, 376, 506 IPC and under Section 3 of

POCSO Act, registered at Police Station, Shillai, District Sirmour,

Himachal Pradesh.

2. Sequel to order dated 5.12.2017, whereby, the present

bail petitioner was ordered to be enlarged on interim bail in the

event of her arrest, ASI Dula Ram, Police Station Shillai, District

Sirmour H.P., has come present in Court alongwith the record of the
1
Whether the reporters of the local papers may be allowed to see the judgment?

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case. Mr. P.M. Negi, learned Additional Advocate General, has

also placed on record status report prepared on the basis of the

.

investigation carried out by the Investigating Agency. Record

perused and returned.

3. Careful perusal of the record/status report, reveals that

FIR, as detailed hereinabove, came to be registered against the

bail petitioner and her son namely Pushpender, at the behest of

complainant-prosecutrix, who is a 17-1/2 years aged girl. On 1st

December, 2017, complainant, reported to the police that in the

month of August, 2017, accused namely Pushpender, came to

place Sataun with the proposal to marry her and thereafter, his

mother i.e. bail petitioner also came to Sataun and said that her

son will marry her on her attaining the age of majority in the month

of January, 2018. Record reveals that subsequently, complainant

was allured by accused Pushpender that she should join ITI, Nahan,

to do computer course and accordingly, she took admission in ITI,

Nahan in computer course. Since, September, 2017, complainant

started living at Nahan in a room near ITI, Nahan. Accused namely

Pushpender, son of present bail petitioner, started coming to the

room of the complainant and repeatedly sexually assaulted her on

the pretext that he will marry her whenever she completes her age

of majority. On 31st October 2017, accused namely Pushpender,

met complainant at Renuka Fair at Renuka Ji and from there, took

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her to his village Jarwa Juneli, where, he again committed rape on

her for 2-3 days. As per complainant, present bail petitioner, who

.

was also present in the house at Jarwa Juneli, was in the know of

the things and she actually helped other co-accused Pushpender

in committing the aforesaid illegal act upon her against her wishes.

4. Mr. C.N. Singh, learned counsel, representing the bail

petitioner, while referring to the records/status report, vehemently

argued that no case is made out against the present bail

petitioner, who is mother of accused namely Pushpender, who

allegedly committed rape on complainant. Mr. Singh, further

contended that as per investigation carried by the investigating

agency, present bail petitioner had approached complainant as

well as her parents with a proposal of marriage of his son and as

such, no case can be lodged against her merely on the pretext

that she helped her son namely Pushpender to do the illegal act.

Mr. Singh, also contended that investigation in this case is complete

and nothing is required to be recovered from the bail petitioner,

who after having obtained interim bail from this Court, has been

rendering full cooperation to the investigating agency. Lastly, Mr.

Singh, contended that bail petitioner being a local resident of the

area, shall always remain available for investigation and trial and

there is no likelihood of her fleeing from justice and as such, she

deserves to be enlarged on bail.

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

while fairly conceding that bail petitioner had joined investigation

.

in terms of order dated 5.12.2017, contended that investigation

conducted so far, reveals that bail petitioner also helped co-

accused Pushpender to allure the complainant, who is a minor girl

and as such, the case has been rightly registered against her also.

Mr. Negi, further admitted that nothing is required to be recovered

from the present bail petitioner and in case, this Court deems it

proper to enlarge her on bail, she may be directed to join

investigation as and when called by the Investigating Agency.

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

gone through the record.

7. After having gone through the record carefully, this

Court finds from the record that present bail petitioner being

mother of co-accused namely Pushpender, had approached the

complainant as well has her family, with a proposal of marriage

and there is nothing on record from where it can be inferred that

present bail petitioner instigated or helped co-accused namely

Pushpender to commit offence, if any, under Section 376 IPC

against complainant. Otherwise also, perusal of the record/status

report, especially, statement of complainant, clearly suggests that

she of her own will visited the house of present bail petitioner along

with another co-accused Pushpender at village Jarwa Juneli,

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where she allegedly stayed for 2 to 3 days. Allegedly, co-accused

Pushpender, took the complainant to his village on 31st October,

.

2017, where he allegedly, committed rape upon her, but there is

nothing on record from where it can be inferred that after

aforesaid alleged incident, complaint, if any, was ever lodged by

the complainant either to present bail petitioner or to her parents,

rather, matter came to be reported to the police for the first time

on 1st December, 2017 i.e. after 30 days of alleged incident at

village Jarwa Juneli. Though, the aforesaid aspect of the matter is

to be considered and decided by the learned trial court on the

basis of the evidence, if any, adduced on record by the

prosecution, but this Court after having carefully gone through the

record, sees no reason for custodial interrogation of present bail

petitioner, especially when she has already joined investigation

and has been rendering full cooperation, as has been fairly

admitted by the learned Additional Advocate General.

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

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

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9. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5)

SCC 218, 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 ad 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

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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. 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 a local resident of the place mentioned in the

application and he shall remain available to face the trial and to

undergo imprisonment, if any, imposed upon him.

11. 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:

(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;

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(viii) reasonable apprehension of the witnesses being
influenced; and

(ix) danger, of course, of justice being thwarted by grant
of bail.

.

12. In view of the aforesaid discussion, 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 furnishing personal bonds in the sum of

Rs.50,000/- with one local surety in the like amount to the

satisfaction of learned Chief Judicial Magistrate concerned, with

following conditions:

(a) She shall make herself 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) She shall not tamper with the prosecution evidence
nor hamper the investigation of the case in any

manner whatsoever;

(c) She 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) She 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

violate any of the conditions imposed upon her, the investigating

agency shall be free to move this Court for cancellation of the bail.

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14. Any observations made hereinabove shall not be

construed to be a reflection on the merits of the case and shall

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remain confined to the disposal of this application alone.

The petition stands accordingly disposed of.

Copy dasti.

(Sandeep Sharma)

Judge
12th December, 2017
(reena)

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