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__________________________________________________ vs State Of Himachal Pradesh on 1 March, 2024

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Himachal Pradesh High Court

__ vs State Of Himachal Pradesh on 1 March, 2024

Author: Sushil Kukreja

Bench: Sushil Kukreja

1

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No.3230 of 2023
Reserved on: 27.02.2024
Date of Decision: 01.03.2024
__
Deepak alias Gugali
….Petitioner
Versus
State of Himachal Pradesh
…Respondent

Coram
Hon’ble Mr. Justice Sushil Kukreja, Judge
Whether approved for reporting?1
__
For the petitioner : Mr. Kul Bhushan Khajuria, Advocate.
For the respondent: Mr. B.N.Sharma, Additional Advocate
General.

Sushil Kukreja, Judge

The instant petition has been filed by the petitioner

under Section 439 of the Code of Criminal Procedure (Cr.P.C.),

seeking bail in case FIR No.35/2023, dated 08.07.2023,

registered at Women Police Station Chamba, District Chamba,

H.P. under Sections 363, 366 376 of the Indian Penal Code

(for short, ‘IPC’) and Sections 4 17 of the Protection of

1. Whether reporters of Local Papers may be allowed to see the judgment?
2

Children from Sexual Offences Act, 2012 (for short, ‘POCSO

Act’).

2. Briefly stated the facts of the case, as per the status

report filed by the respondent-State, are that on 08.07.2023, the

mother of the victim moved a complaint before the police,

alleging therein that on 06.07.2023, her daughter, i.e. the victim,

was present in the house till 9 p.m., but thereafter one Deepak

alias Gugali (petitioner herein) enticed her away on the pretext

of marriage with her. They tried to search the victim, but she

was not found anywhere. On the basis of the said complaint,

FIR under Sections 363 366 of IPC was registered against the

petitioner.

3. During the course of investigation, the victim and the

petitioner were recovered on 11.07.2023 at Jammu and

thereafter the statement of victim was recorded under Section

161 Cr.PC and she was taken to the hospital for her medical

examination, but she refused to get herself medically examined

and she also refused to accompany her mother, hence, she was

sent to ‘One Stop Center’, Gholti alongwith one lady constable.

On 12.07.2023, her statement under Section 164, Cr.PC was
3

recorded, however, on that day, she had not stated anything

against the petitioner that he had committed sexual intercourse

with her. However, on the request of the Investigating Agency,

her statement under Section 164, Cr.PC was again recorded on

13.07.2023, wherein she stated that the petitioner had

committed sexual intercourse with her and she also agreed to

undergo medical examination and only thereafter Section 376

IPC was added in the case and the petitioner/accused was also

arrested on 13.07.2023. During further investigation of the case,

it was revealed that on 06.07.2023, the petitioner took the victim

in a vehicle bearing registration No.PB08BV-0888 which was

being driven by co-accused Sunil Kumar alias Polu, who was

also arrested on 29.07.2023.

4. The instant petition has been filed by the petitioner

on the ground that he is innocent and he has been falsely

implicated in the present case. Learned counsel for the

petitioner contended that the petitioner is behind the bars since

13.07.2023 and no fruitful purpose will be served by keeping him

behind the bars for an unlimited period, as the charge-sheet has
4

been filed before the trial Court on 28.11.2023 and there is no

likelihood of completion of the trial in near future.

5. Conversely, the learned Additional Advocate

General has opposed the bail application on the ground that the

petitioner is involved in a serious offence and keeping in view

the gravity of the offence, he is not entitled to be released on

bail. He further contended that if the petitioner is enlarged on

bail, he will try to influence the witnesses and may also tamper

with the prosecution evidence.

6. I have given my considered thought to the rival

contentions raised and also gone through the police file as well

as the status report filed by the prosecution. The allegations

against the petitioner are that he had enticed away the victim

and had committed sexual intercourse with her on the pretext of

marriage. The petitioner, who is about 21years of age, was

arrested on 13.07.2023 and since then he is behind the bars.

7. The law with respect to grant of bail is now well

settled. In Sanjay Chandra Vs. Central Bureau of

Investigation, (2012) 1 Supreme Court Cases 49, it has been

held that the object of bail is to secure the appearance of the
5

accused person at his trial by reasonable amount of bail and

that every man is deemed to be innocent until duly tried and

duly found guilty. Relevant portion of the aforesaid judgment

reads as under:-

“21. In bail applications, generally, it has been laid down
from the earliest times that 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.

22. From the earliest times, it was appreciated that
detention in custody pending completion of trial could be
a cause of great hardship. From time to time, necessity
demands that some un-convicted 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
this country, 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.

23. Apart from the question of prevention being the
object of a 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 un-convicted person for the
purpose of giving him a taste of imprisonment as a
lesson.”

6

8. In Manoranjana Sinh alias Gupta Vs. CBI, (2017)

5 SCC 218, the Hon’ble Apex Court reiterated the decision

rendered in Sanjay Chandra’s case (supra) by holding as

under:-

“16. This Court in Sanjay Chandra Vs. Central Bureau of
Investigation (2012) 1 SCC 40, 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 and found guilty. It
was underlined that the object of bail is neither punitive
nor 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 a
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 and 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 that grant
or denial of such 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.”

9. Similar reiteration of law can be found in Dataram

Singh Vs. State of Uttar Pradesh Another, (2018) 3 SCC
7

22, wherein it has been held that a person is believed to be

innocent until found guilty and the grant of bail is the general

rule and putting a person in jail or in a prison or in a correction

home is an exception. Relevant portion of the aforesaid

judgment reads as under:-

“1. 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.
………………

4. 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
Re-Inhuman Conditions in 1382 Prisons.”

10. Therefore, the instant bail application has to be

decided in the light of the aforesaid decisions of the Hon’ble

Supreme Court. Although, it would be inappropriate to discuss
8

the evidence in depth at this stage, however, for the purpose of

deciding the present petition, few points are required to be taken

into consideration. The perusal of the status report, prima facie,

reveals that the victim is aged about 17 years and 7 months.

Though, the consent of the victim is immaterial, as admittedly,

she was below 18 years of age, but perusal of the record, prima

facie, reveals that the victim had accompanied the

petitioner/accused at her own as both of them were talking to

each other on telephone w.e.f. 01.07.2023 to 03.07.2023.

Furthermore, when the victim was recovered on 11.07.2023,

she was taken to Government Hospital, Chamba for medical

examination. However, she had refused to undergo medical

examination on that day and she had also refused to

accompany her mother, as such, she was sent to ‘One Stop

Centre, Gholti under the protection of one lady constable. On

12.07.2023, her statement under Section 164, Cr.PC was

recorded, but on that day, she had not disclosed anything about

the commission of sexual intercourse with her by the petitioner.

However, on the request of the Investigating Agency, her

statement under Section 164, Cr.PC was again recorded on
9

13.07.2023, wherein she stated that the petitioner had

committed forcible sexual intercourse with her and she also

agreed to undergo medical examination. Though, the case of

the victim is that the petitioner-accused had committed forcible

sexual intercourse with her, however, as per the final opinion, it

has been opined by the doctor that there is no evidence

suggesting recent forceful sexual intercourse. RFSL report

dated 23.09.2023 also indicates that blood and semen were not

detected in the shirt, bra, pubic hair, vaginal swab and vaginal

slides of the victim as well as on the underwear, smegma swab

and pubic hair of the petitioner and also on the bed-sheet

11. It has been held by the Hon’ble Apex Court

repeatedly in catena of judgments that one is deemed to be

innocent till the time he/she is proved to be guilty in accordance

with law. The trial in the case has not commenced as yet and

there is no likelihood of completion of the trial in near future as

the charge-sheet has been filed only on 28.11.2023. The

petitioner is in custody since 13.07.2023 and he cannot be

detained in custody for an unlimited period with hardened

criminals, especially when he is only about 21 years of age and
10

his complicity, if any, is yet to be established on record. The

prosecution has also failed to produce any material on record to

suggest that he will tamper with the prosecution evidence on

being enlarged on bail and there is also nothing to suggest that

he will abscond and flee from justice, if released on bail, as

admittedly, he is a permanent resident of District Chamba.

12. Considering the overall facts and circumstances of

the case and also keeping in view the age of the petitioner,

being about 21 years of age and the age of the victim, being

about 17 years and 7 months, this Court finds that the present is

a fit case where judicial discretion to admit the petitioner on bail

is required to be exercised in his favour. Accordingly, the bail

application is allowed and it is ordered that the petitioner, who

has been arrested by the police in case FIR No.35/2023, dated

08.07.2023, registered at Women Police Station Chamba,

District Chamba, H.P., under Sections 363, 366, 376 of IPC and

Sections 4 17 of POCSO Act and presently lodged in District-

cum-Open Air Jail, Chamba, H.P. shall be forthwith released on

bail, subject to his furnishing personal bond to the tune of

Rs.50,000/- (Rupees Fifty Thousand) with one surety in the like
11

amount to the satisfaction of learned trial Court. The bail order

is, however, subject to the following conditions:-

(i) that the petitioner will appear before the Court and the
Investigating Officer whenever required ;

(ii) that he will not directly or indirectly make any inducement,
threat or promise to any person acquainted with the facts
of the case so as to dissuade him from disclosing any facts
to the Court or the police;

(iii) that he will not tamper with the prosecution evidence nor
he will try to win over the prosecution witnesses or terrorise
them in any manner;

(iv) that he will not deliberately and intentionally act in a
manner which may tend to delay the investigation or the
trial of the case.

(v) that he will not leave India without prior permission of the
Court.

13. Needless to say that the Investigating agency shall

be at liberty to move this Court for cancellation of the bail, if any

of the aforesaid conditions is violated by the petitioner.

14. Be it stated that any expression of opinion given in

this order does not mean an expression of opinion on the merits

of the case and the trial Court will not be influenced by any

observations made therein.

15. The Registry is directed to forward a soft copy of the

bail order to the Superintendent, District-cum-Open Air Jail,

Chamba, H.P., through e-mail, with a direction to enter the date

of grant of bail in the e-prison software.

12

16. In case, the petitioner is not released within a period

of seven days from the date of grant of bail, the Superintendent,

District-cum-Open Air Jail, Chamba, H.P. is directed to inform

this fact to the Secretary, DLSA, Chamba, District Chamba, H.P.

The Superintendent, District-cum-Open Air Jail, Chamba, H.P.

is further directed that if the petitioner fails to furnish the bail

bonds, as per the order passed by this Court within a period of

one month from today, then the said fact be submitted to this

Court.

( Sushil Kukreja )
Judge
March 01, 2024
(VH)
Digitally signed by VIRENDER BAHADUR
DN: CIN, OHIGH COURT OF HIMACHAL PRADESH,
OUHIGH COURT OF HIMACHAL PRADESH SHIMLA,

VIRENDER Phone
3c5f9e29e91dda973d928ffd06d59832d2dd97b9e289811
7bfa738990a0ea7ba, PostalCode171001, SHimachal
Pradesh, SERIALNUMBER
fed3018c26866cd3d598cb3749b3fb29d4abef4b8498368

BAHADUR 9d027cb645c9bb134, CNVIRENDER BAHADUR
Reason: I am approving this document
Location:

Date: 2024.03.01 13:17:30+05’30’
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