IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 39 of 2018
.
Decided on : 19.01.2018
_
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
.
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
.
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
.
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 regularly22/01/2018 22:57:35 :::HCHP
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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.
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