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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?
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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
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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
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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
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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.”
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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
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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
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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
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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
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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
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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.
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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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