____________________________________________________ vs State Of Himachal Pradesh on 19 January, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 39 of 2018

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Decided on : 19.01.2018

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Rattni Devi ……Petitioner

Versus

State of Himachal Pradesh …..Respondent

Coram:
The Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?

For the petitioner : Mr. K.B. Khajuria, Advocate.

For the respondent : Mr. Rajat Chauhan, Law Officer
ASI Satpal, P.S. Tissa, District
Chamba, H.P present with case

records.

Sandeep Sharma, Judge (Oral)

Bail petitioner, namely, Rattni Devi, who is behind

bars since 7.12.2017, has approached this Court by way of

instant bail petition filed under Section 439 of Cr.P.C, praying

therein for grant of regular bail in FIR No. 133/2017, dated

7.12.2017, under Sections 376 IPC and Sections 6 and 17 of

Protection of Children from Sexual Offences Act, 2012

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(POCSO) registered with Police Station Tissa, District Chamba,

H.P.

.

2. Sequel to order dated 15.1.2018, ASI Sat Pal,

Police Station Tissa, District Chamba, H.P. is present alongwith

record. Mr. Rajat Chauhan, learned Law Officer has also filed

status report prepared by the Investigating Agency. Record

perused and returned.

3. The record/status report filed on behalf of the

Investigating Agency reveals that the FIR mentioned

hereinabove came to be lodged at the behest of the complainant,

namely, Ram Dei, who alleged that her minor daughter was

enticed and taken away in her absence by the accused, namely,

Sanjeev Kumar and his father Chaman Singh on 25.9.2017. On

26.9.2017, complainant telehoned her daughter, who disclosed

that she has been brought to village Kanori by accused Sanjeev

Kumar and his father Chaman Singh. Since families of

complainant and accused namely hereinabove were known to

each other and they had also agreed for marriage of daughter of

complainant with accused Sanjeev Kumar, complainant thought

it not proper to register any complaint with the police against the

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aforesaid illegal act of Sanjeev Kumar and Chaman Singh.

Allegedly, after one and half month of aforesaid incident, bail

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petitioner, who happened to be mother of accused Sanjeev

Kumar, came to the village of the complainant alongwith co-

accused Sanjeev Kumar to drop/leave the daughter of the

complainant, since no one from the family of the bail

petitioner and other accused came back to take daughter of the

complainant, complainant made various efforts to contact bail

petitioner as well as the accused but fact remains that they all

refused to take daughter of complainant to their house.

4. Close scrutiny of report/status report further

suggests that the complainant and family of bail petitioner had

actually agreed for marriage of the daughter of complainant

with son of bail petitioner. Since daughter of complainant is/

was minor, marriage could not be solemnized immediately after

her engagement. Accused Sanjeev Kumar and his father

subsequently visited the house of the complainant and without

having obtained consent of the complainant, took daughter of

the complainant to their house, where she allegedly lived for

one month and seven days with the accused Sanjeev Kumar as

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his wife. Since bail petitioner and other accused refused to

solemnize marriage or to take daughter of the complainant to

.

their house, case under Section 376 IPC and Sections 6 and 17

of POCSO Act came to be registered against present bail

petitioner and other accused on 7.12.2017 and since then they

all are behind the bars.

5. Mr. Kulbhushan Khajuria, learned counsel

representing the bail petitioner, while referring to the status

report strenuously argued that the daughter of the complainant

was not enticed and taken to the house of the bail petitioner,

rather as per own case set up by Investigating Agency, co-

accused Sanjeev Kumar and Chaman Singh came to the house

of complainant for taking her daughter alongwith them. Mr.

Kulbhushan Khajuria, learned counsel further contended that

there is nothing on record, adduced at this stage by

Investigating Agency to suggest that the bail petitioner has

committed crime, if any, under Sections 6 and 17 of POCSO

Act. Learned counsel further contended that for the

commission of offence, if any, by co-accused Sanjeev Kumar

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and Chaman Singh, bail petitioner, who is innocent person, can

not be allowed to incarcerate in jail for indefinite period.

.

6. Learned Counsel further contended that it is quite

apparent from the record that the daughter of the complainant

had been visiting the house of the bail petitioner in the past also

and she was engaged with her son, namely, Sanjeev Kumar and

as such, it could not be concluded that bail petitioner has

committed any crime by keeping daughter of the complainant

at her house. Lastly, Mr. Kulbhushan Khajuria, Advocate

contended that since all the family members of the petitioner are

behind the bars pursuant to filing of aforesaid FIR and there is

no one left at home to take care of house as well as cattles and as

such, she be ordered to be released on bail.

7. Mr. Rajat Chauhan, learned Law Officer while

opposing the aforesaid prayer having been made by Mr.

Kulbhushan Khajuria, learned Counsel contended that keeping

in view the gravity of offence allegedly committed by bail

petitioner and other co-accused, she does not deserve to be

shown any leniency, rather needs to be dealt with severely.

While refuting the submission of learned counsel representing

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the petitioner that no active role was played by the bail

petitioner, Mr. Rajat Chauhan, learned Law Officer contended

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that it is specifically mentioned in the statement of minor

recorded under Section 164 of Cr.P.C that on insistence of bail

petitioner she/prosecutrix lived with accused Sanjeev Kumar as

his wife for more than one month. Mr. Chauhan, learned law

officer further contended that true it is that as per investigation

both families had agreed to solemnize the marriage of daughter

of the complainant with co-accused Sanjeev Kumar but since

daughter of the complainant is minor, no marriage of her could

be solemnized before her attaining the majority.

8. I have heard learned counsel for the parties and

gone through the record carefully.

9. Perusal of the record clearly suggests that the bail

petitioner and her family were closely known to the

complainant and they had been meeting with each other in the

past. It also emerges from the record that both the families had

agreed to solemnize the marriage of daughter of the

complainant with son of the bail petitioner. Daughter of the

complainant had been visiting the house of the bail petitioner in

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the past also. This Court, after having perused the report, finds

some force in arguments of Mr. Kulbhushan Khajuria, learned

.

Counsel for the petitioner that daughter of the complainant was

brought to the house of the bail petitioner by accused Sanjeev

Kumar and his father Chaman Singh and bail petitioner was not

party in the aforesaid act of persons named above. Rather she

alongwith her son came to drop daughter of the complainant to

her paternal house. True, it is that as per investigation report,

daughter of the complainant remained in house of bail petitioner

for one month, but that may not be sufficient to conclude at this

stage that bail petitioner abeted other co-accused to commit

offence, if any, against daughter of the complainant. Since

daughter of the complainant had been visiting the house of the

bail petitioner in the past also, it can be presumed that daughter

of the complainant, of her own will, remained with the family

of the bail petitioner during the aforesaid period. This Court also

can not loose sight of the fact that all the family members of the

bail petitioner are behind the bars and no body is there to look

after house as well as cattles of the bail petitioner. Leaving

everything aside, nothing has been placed on record by the

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Investigating Agency, from where it can be inferred that if

petitioner is enlarged on bail, she shall not make herself

.

available for interrogation, if required. Mr. K.B. Khajuria,

learned Counsel for the petitioner undertakes that the bail

petitioner shall make herself available for investigation and trial

as and when required by the Investigating Agency.

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 local resident of the place

mentioned in the bail application and she shall remain available

to face the trial and undergo imprisonment, if any, imposed on

her.

11. The Hon’ble Apex Court in Sanjay Chandra

Versus Central Bureau of Investigation ( 2012) 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

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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

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upon. The Courts owe more than verbal respect to the

principle that punishment begins after conviction, and
that every man is deemed tobe 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.”

12. The Apex Court in Prasanta Kumar Sarkar versus

Ashis Chaatterjee 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.

13. In view of above, this petition is allowed and

petition is ordered to be released on bail in case FIR No. 133 of

2017, dated 07.12.2017, registered at Police Station Tissa,

District Chamba, under Section 376 of IPC and Sections 6 and

17 of POCSO Act, subject to her furnishing personal bond in the

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

satisfaction of CJM/JMIC concerned and following conditions:-

(a) Petitioner shall make herself available for the
purpose of interrogation, if so required and regularly

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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) Petitioner shall not tamper with the prosecution
evidence nor hamper the investigation of the case in
any manner whatsoever;

c) Petitioner 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 of the Police Officer; and

d) Petitioner shall not leave the territory of India
without the prior permission of the Court.

14. It is clarified that if the petitioner misuses the

liberty or violates any of the conditions of bail imposed upon

her, the investigating agency shall be at liberty to move this

Court for cancellation of the bail.

15. Any observations made hereinabove shall not

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

remain confined to the disposal of this application alone.

16. The petition stands disposed of accordingly.

Dasti copy.

(Sandeep Sharma)
Vacation Judge

19th January, 2018
(st)

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