IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMP(M) No. 324 of 2018
Decided on April 2, 2018
__
.
Sanjeev 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. Kulbhushan Khajuria,
Advocate.
For the respondent : Mr. Dinesh Thakur, Additional
Advocate General with Mr. Vikrant
r Chandel, Deputy Advocate General.
ASI Sat Pal, I/O, PS Tissa, District
Chamba, Himachal Pradesh.
__
Sandeep Sharma, Judge (oral):
Bail petitioner namely Sanjeev Kumar, who is behind the
bars since 9.12.2017, has approached this Court in the instant
proceedings filed under Section 439 CrPC, praying therein for
grant of regular bail in connection with FIR No. 133 of 2017
dated 7.12.2017, under Section 376 IPC and Sections 6 and 17
of Protection of Children from Sexual Offences Act, registered at
Police Station, Tissa, District Chamba, Himachal Pradesh.
2. Sequel to order dated 26.3.2018, ASI Sat Pal has come
present with the record. Mr. Dinesh Thakur, learned Additional
1
Whether the reporters of the local papers may be allowed to see the judgment?
03/04/2018 22:57:59 :::HCHP
2
Advocate General has also placed on record status report,
prepared on the basis of investigation carried out by the
investigating agency. Record perused and returned.
.
3. Perusal of record/ status report reveals that FIR detailed
herein above, 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
accused Sanjeev Kumar and his father on 25.9.2017. Allegedly
on 26.9.2017,
complainant contacted her
(prosecutrix), over the telephone, who disclosed that she has
been brought to village Kanoi by accused Sanjeev Kumar and
daughter
his father, Chaman Singh. Since families of complainant and
accused were known to each other and they had also agreed for
marriage of the victim and Sanjeev Kumar, complainant
thought it not proper to register complaint in the Police Station
against aforesaid illegal act of Sanjeev Kumar and his father.
Allegedly after one and a half months of aforesaid incident,
mother of petitioner, who is also accused in the case, visited the
house of complainant alongwith victim but she left victim
there and returned back to her house. Since for considerable
time, none from the family of bail petitioner came back to take
the victim, complainant with the assistance of Panchayat made
an endeavour to contact bail petitioner and his parents but
03/04/2018 22:57:59 :::HCHP
3
accused refused to accept her as such case referred to herein
above came to be registered against them at Police Station
Tissa, District Chamba.
.
4. Mr. Kulbhushan Khajuria, learned counsel representing
the bail petitioner contends that it is quite apparent from the
record that the daughter of the complainant had herself of her
own volition joined the company of bail petitioner. He further
stated that as per own statement of the complainant, victim
remained with the family of the bail petitioner at Village Kanoi
without there being any complaint, rather this fact was known
to the complainant because during this period, she made no
effort to contact her. Mr. Khajuria further contended that it has
also come on record that families of victim and bail petitioner
were known to each other for a considerable time and they had
agreed for their marriage. While referring to the conduct of the
mother of victim, learned counsel representing the bail
petitioner contended that she despite having discovered the fact
that her daughter is living with bail petitioner and his parents
since 25.9.2017, never thought it proper to register the FIR,
which ultimately came to be registered after a lapse of three
months. While referring to the report of RFSL, learned counsel
representing the bail petitioner contended that no case is made
out against bail petitioner under Section 376 IPC and Sections
03/04/2018 22:57:59 :::HCHP
4
6 and 17 of the Protection of Children from Sexual Offences Act,
as such, bail petitioner deserves to be enlarged no bail. While
referring to judgments dated 19.1.2018 and 19.3.2018 passed
.
by this Court in CrMP(M) N o. 39 of 2018 and CrMP No. 194 of
2018, learned counsel representing the bail petitioner
contended that other co-accused have already been enlarged on
bail, as such, present bail petitioner, who is a boy of tender age,
deserves to be enlarged on bail.
5.
Mr. Dinesh Thakur, learned Additional Advocate General,
while opposing aforesaid prayer having been made by the
learned counsel representing the bail petitioner, contended that
keeping in view the gravity of the offence allegedly committed by
bail petitioner, he does not deserve to be enlarged on bail. He
further contended that true it is that as per forensic report,
there is no recent evidence of sexual intercourse but that may
not be sufficient to conclude that bail petitioner did not indulge
in sexual assault, as has been categorically alleged by the
victim. He further categorically stated that since in the report, it
has been stated that there is no evidence of recent sexual
intercourse, it cannot be concluded at this stage that the bail
petitioner did not sexually assault the victim during the period
she remained with him at his house. While fairly admitting that
Challan stands filed in the competent Court of law and nothing
03/04/2018 22:57:59 :::HCHP
5
is required to be recovered from the bail petitioner, Mr, Thakur,
learned Additional Advocate General contended that in the
event of petitioner being enlarged on bail, he may influence and
.
tamper with evidence adduced on record by prosecution, as
such, present petition may be dismissed.
6. I have heard the learned counsel for the parties and gone
through the record carefully.
7. It is quite apparent from the record made available to this
Court that families of bail petitioner and victim were known to
each other for quite considerable time and in fact they had
agreed inter se them to solemnize marriage of victim with bail
petitioner. Bail petitioner and other co-accused Chaman Singh
had taken the victim to their house but despite that,
she(complainant) failed to report the matter to the police, rather
she remained quiet for almost 3-4 months. There is nothing on
record suggestive of the fact that during this period, she made
any attempt, if any, to lodge complaint in Gram Panchayat.
Similarly, there appears to be no effort on her part to bring her
daughter back to her house during the period of three months.
Explanation rendered by complainant for delay in lodging FIR,
does not appear to be plausible, rather there appears to be
considerable force in the argument of learned counsel
representing the bail petitioner that complainant was in the
03/04/2018 22:57:59 :::HCHP
6
know of the things that her daughter is residing with the family
of bail petitioner.
8. Leaving everything aside, perusal of medical evidence as
.
well as report of RFSL placed on record, nowhere corroborates
version put forth by victim and complainant. RFSL has
categorically opined that there is no evidence of sexual
intercourse. Even if the initial report of medical officer is
perused, he has not given any conclusive report to the effect
that victim was subjected to sexual intercourse, as such, this
Court, at this stage, after having perused entire evidence
collected on record by prosecution, sees no reason to keep the
bail petitioner in custody for indefinite period. Guilt if any, of
the bail petitioner is to be proved in accordance with law by
prosecution by leading cogent and convincing evidence on
record. Though, aforesaid aspect of the matter is to be
considered and decided by the court below on the basis of
evidence, if any, collected on record by prosecution, but this
Court, sees no reason to let the bail petitioner incarcerate in jail
for indefinite period, especially when Challan stands filed in the
competent Court of law.
9. Recently, the Hon’ble Apex Court in Criminal Appeal No.
227/2018, Dataram Singh vs. State of Uttar Pradesh Anr
decided on 6.2.2018 has held that freedom of an individual can
03/04/2018 22:57:59 :::HCHP
7
not be curtailed for indefinite period, especially when his guilt has
not been proved. It has further held by the Hon’ble Apex Court in
the aforesaid judgment that a person is believed to be innocent
.
until found guilty. The Hon’ble Apex Court has held 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 doesnot 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 (whicheverexpression 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 ofdecisions rendered by this Court and by every High
Court in the country. Yet, occasionally there is anecessity 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 the03/04/2018 22:57:59 :::HCHP
8accused 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 accusedof 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 anExplanation 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 CriminalProcedure, 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 poorthat person might be, the requirements of Article
21 of the Constitution and the fact that there is
enormous overcrowding in prisons, leading to socialand other problems as noticed by this Court in In
Re-Inhuman Conditions in 1382 Prisons.”
10. 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
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
03/04/2018 22:57:59 :::HCHP
9
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 norpreventative. 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 beginsafter 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 totime, 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 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 withthe witnesses if left at liberty, save in the most
extraordinary circumstances. Apart from the
question of prevention being the object of refusal ofbail, one must not lose sight of the fact that any
imprisonment before conviction has a substantial
punitive content and it would be improper for anycourt 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.”
11. Law with regard to grant of bail is now well settled. The
Apex Court in Siddharam Satlingappa Mhetre versus State of
03/04/2018 22:57:59 :::HCHP
10
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 anticipatorybail. 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. Inconsonance 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 jurisdictionunder 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 theanticipatory 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;
(iii) The possibility of the applicant to flee from
justice;
03/04/2018 22:57:59 :::HCHP
11
(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 and
149 of the Indian Penal Code, the court
should consider with even greater care and
rcaution because over implication in the cases
is a matter of common knowledge andconcern;
(viii) While considering the prayer for grant of
anticipatory bail, a balance has to be struck
between two factors namely, no prejudiceshould 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 orapprehension of threat to the complainant;
(x) Frivolity in prosecution should always be
considered and it is only the element ofgenuineness 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)
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
03/04/2018 22:57:59 :::HCHP
12applied 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.
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:
(i) whether there is any prima facie or reasonable
ground to believe that the accused had committed theoffence;
(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 above, present bail petition is allowed. Petitioner
is ordered to be enlarged on bail subject to his furnishing bail
bonds in the sum of Rs.1,00,000/- (Rs. One Lakh) with one local
03/04/2018 22:57:59 :::HCHP
13
surety in the like amount, to the satisfaction of the Investigating
Officer concerned, besides 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 soas 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.
(e)
He shall surrender passport, if any, held by him.
15. It is clarified that if the petitioner misuses the liberty or
violate any of the conditions imposed upon him, the investigating
agency shall be free to move this Court for cancellation of the bail.
16. 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 instant petition alone.
The petition stand accordingly disposed of.
Copy dasti.
(Sandeep Sharma)
Judge
April 2, 2018
(vikrant)
03/04/2018 22:57:59 :::HCHP