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Tara Chand vs State Of Himachal Pradesh on 6 April, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.168 of 2018
Decided on: 6.4.2018

.

Tara Chand ………..Petitioner
Versus
State of Himachal Pradesh ……….Respondent

Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioner : M/s Sudhir Thakur and Anirudh Sharma,
Advocates.

For the Respondent : Mr. Dinesh Thakur, Additional Advocate
General and Mr. Vikrant Chandel,
Deputy Advocate General/

Sandeep Sharma, Judge (oral):

Bail petitioner, who is behind bars since 13.12.2017, has

approached this Court by way of instant proceedings, filed under Section

439 of Cr.PC, with a prayer to grant regular bail in case FIR No. 69/17

dated 2.12.2017, under Sections 376, 506, 34 IPC and Section 6 of POCSO

Act, registered at P.S. Kasauli, District Solan, H.P.

2. Sequel to orders dated 27.2.2018 and 19.3.2018, ASI Madan

Mohan, I/o P.S. Kasauli, HP, has come present in Court alongwith the

record of the case. Mr. Dinesh Thakur, learned Additional Advocate

General, has also placed on record status report prepared on the basis of

the investigation carried out by the investigating agency.

1

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

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2

3. Perusal of the record/status report suggests that FIR, detailed

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

.

namely Paramjeet Kaur on 2.12.2017, who alleged that her minor

daughter studies at Government Senior Secondary School at

Jagjeetnagar in class 10+1. She further stated that her daughter goes to

school in Kaushal Private Bus. On 28.11.2017, when her minor daughter

had gone to school, she found one mobile phone in her bed. Since

complainant had not provided her daughter with mobile phone, she

having noticed dialed call, gave a phone call on a number i.e. 78073-

01800, and found that her daughter was with a person namely Bunty.

Complainant asked Bunty to send her daughter to Gadkhal. On 2.12.2017,

minor daughter of the complainant disclosed to the complainant that she

knows a person namely Bunty for the last 1½ years and he had given

mobile phone to her one month ago. She further disclosed to her mother

that on 29.7.2016, bail petitioner had taken her to hotel Anchal at Kasauli

to celebrate his birthday, but he taking undue advantage of her

innocence sexually assaulted her against her wishes. Daughter of the

complainant also revealed to her mother (complainant) that on

29.11.2017, when Bunty had gone out of room to get some food, bail

petitioner unauthorisedly entered into her room in hotel and sexually

assaulted her against her wishes. On the basis of aforesaid statement

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having been made by the complainant under Section 154 Cr.PC,

aforesaid FIR came to be lodged against the bail petitioner as well as

.

other co-accused namely Bunty at PS Kasauli.

4. Mr. Sudhir Thakur, Advocate, representing the bail petitioner

while referring to the status report/record, vehemently contended that

bail petitioner has been falsely implicated in the instant case because at

this stage, there is no evidence collected on record suggestive of the fact

that the bail petitioner sexually assaulted daughter of the complainant.

He further stated that bare perusal of record itself reveals that daughter of

the complainant was in constant touch with co-accused Bunty for the last

1½ years and during this period, she on her own volition, developed

physical relations with him. While referring to the statement having been

made by the prosecutrix i.e. daughter of the complainant, under Section

164 Cr.PC., Mr. Thakur, contended that name of bail petitioner has been

taken in a very casual manner by the victim because as per her own

statement, on 29.7.2017, daughter of the complainant had gone to hotel

called Anchal at Kasauli with Bunty, where allegedly bail petitioner also

came and sexually assaulted her. Mr. Thakur further stated that as per

own statement of prosecutrix, she after the alleged incident had lunch

with co-accused Bunty and thereafter, she remained in constant touch,

rather in company of co-accused Bunty till 28.11.2017, when her mother

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gave a call to co-accused Bunty over a phone provided by him to her

daughter. While referring to the medical evidence adduced on record,

.

Mr. Thakur, contended that there is no definite opinion rendered on

record by the doctor that victim was subjected to sexual intercourse as is

alleged in the FIR. Mr. Thakur, further contended that investigation in the

case, is complete and challan stands filed in the competent court of law

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

such, he deserves to be enlarged on bail. Learned counsel for the further

contended that bail petitioner is a local resident of the area and he shall

be always available for investigation as well as trial, as and when called

upon by the Investigating Agency.

5. Mr. Dinesh Thakur, learned Additional Advocate General,

while opposing prayer having been made by the learned counsel for the

petitioner contended that keeping in view the gravity of offence

allegedly committed by the bail petitioner, he does not deserve to be

enlarged on bail. He further contended that bare perusal of statement of

prosecutrix recorded under Section 164 of Cr.PC suggests that bail

petitioner taking undue advantage of the innocence of victim, who was

admittedly minor at the time of alleged incident, not only threatened her

but sexually assaulted her as is quite apparent from the MLC adduced on

record. He further contended that investigation reveals that victim i.e.

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daughter of complainant was minor at the time of alleged incident.

Learned Additional Advocate General further contended that it has also

.

come in the investigation that the both the accused Bunty and present

bail petitioner are related to each other and they both had taken

daughter of the complainant to hotel at Kasauli on 29.7.2017, where

present bail petitioner after sending the co-accused Bunty out from the

room, sexually assaulted the bail petitioner. While fairly acknowledging

that challan stands filed in the competent court of law and nothing is

required to be recovered from the bail petitioner, on instructions, Mr.

Dinesh, contended that in the event of petitioner’s being enlarged on

bail, he may influence and temper evidence collected on record and as

such, prayer having been made by the petitioner may be rejected.

6. I have heard learned counsel representing the parties and

gone through the record.

7. It is quite apparent from the record/status report that

daughter of the complainant was known to co-accused Bunty, who

happened to be conductor in Kaushal Bus, owned by the present bail

petitioner. Perusal of statement made by the complainant under Section

154 Cr.PC, on the basis of which, Formal FIR came to be registered and

statement made by victim under Section 164 of Cr.PC, clearly suggests

that victim had been meeting co-accused Bunty for the last 1½ years and

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during this period, she had developed physical relations with him. On or

before 3.12.2017, she never lodged complaint, if any, either to her parents

.

or to the police with regard to the aforesaid illegal act of co-accused

Bunty and present bail petitioner. Otherwise also, bare perusal of

complaint as well as statement made under Section 164 Cr.PC, suggests

that allegation against the present bail petitioner is with regard to the

incident allegedly happened on 29.7.2017. As per own statement of

victim, co-accused had taken her to hotel Anchal for celebrating his

birthday. After having perused statement of prosecution of prosecutrix,

this Court finds considerable force in the argument of Sudhir Thakur,

Advocate, representing the bail petitioner that allegation against the bail

petitioner has been made in a very casual manner because it is not

understood that if bail petitioner had sexually assaulted her on 29.7.2017,

in the absence of co-accused Bunty, what prevented her/victim to

disclose this fact to her friend namely Bunty (co-accused), to whom she

knew for 1 ½ years. But in the case at hand, victim instead of disclosing

aforesaid incident to Bunty, not only had lunch in the same hotel, rather

she remained in the constant touch with co-accused Bunty till 28.11.2017

and during this period, she also developed physical relations with Bunty for

2-3 times as has been stated in her statement recorded under Section 164

CrPC. Further perusal of medical evidence adduced on record nowhere

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indicates involvement, if any, of the bail petitioner in the crime alleged to

be committed by him. Moreover, this Court cannot lose sight of the fact

.

that alleged incident pertains to 29.7.2017, whereafter as per own

statement of victim, she remained in constant touch with co-accused

Bunty, who sexually assaulted her during this period and as such, medical

evidence, if any, collected after 29.11.2017, may not be of any relevance

as far as case registered against the present bail petitioner is concerned.

Prosecution with a view to prove age of the victim, got X-rays of victim

conducted at CHC, who in its report has held that as per the biological

and serological report from FSL Junga and radiologist age estimation the

radiologist age estimated from the basis of fusion of epiphyses from the

following X-rays is between 15-19 years As per the biological and

serological report from FSL Junga, the possibility of sexual intercourse

cannot be ruled out.

8. Though aforesaid aspects of the matter are to be

considered and decided by the Court below, on the basis of evidence

adduced on record, by the Investigating Agency, but definitely, this Court

after having seen/perused the material collected on record by the

prosecution, sees no reason to let the bail petitioner incarcerate in jail for

an indefinite period and as such, he deserves to be enlarged on bail.

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9. Otherwise also, this Court cannot lose sight of the fact that

guilt, if any, of the bail petitioner is yet to be proved in accordance with

.

law and as such, his freedom cannot be ordered to be curtailed for an

indefinite period. 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 categorically held that freedom of an individual is of utmost

importance and same cannot be curtailed merely on the basis of

suspicion. Hon’ble Apex Court has further held that till the time guilt of the

accused is not proved in accordance with law, he is deemed to be

innocent. The relevant paras of the aforesaid judgment are reproduced

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 does not 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 (whichever expression

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 of decisions rendered by this Court and by
every High Court in the country. Yet, occasionally there is a
necessity 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.

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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 the accused 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 accused of 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 an

Explanation 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
Criminal Procedure, 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
poor that person might be, the requirements of Article 21 of
the Constitution and the fact that there is enormous
overcrowding in prisons, leading to social and 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

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Apex Court in Sanjay Chandra versus Central Bureau of Investigation

(2012)1 Supreme Court Cases 49; wherein it 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 unconvicted person for the propose of giving him a

taste of imprisonment as a lesson.”

11. Otherwise also, normal rule is of bail and not jail. 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.

12. 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

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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;

(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

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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)

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 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;

(viii) reasonable apprehension of the witnesses being

influenced; and

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

14. In view of the aforesaid discussion as well as law laid down

by the Hon’ble Apex Court, petitioner has carved out a case for grant of

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bail, accordingly, the petition is allowed and the petitioner is ordered to

be enlarged on bail in aforesaid FIR, subject to his furnishing personal

.

bond in the sum of Rs. 2,00,000/- with one local surety in the like amount to

the satisfaction of concerned Chief Judicial Magistrate/trial Court, 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;

(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.

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 this application alone. The petition stands accordingly

disposed of.

Copy dasti.

6th April, 2018 (Sandeep Sharma),
manjit Judge

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