IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.194 of 2018
Decided on: 19.3.2018

.

Chaman Singh ………..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. K.B. Khajuria, Advocate.

For the Respondent : Mr. Dinesh Thakur, Additional Advocate
General.

Sandeep Sharma, Judge (oral):

By way of instant bail petition filed under Section 439 of

Cr.PC, a prayer has been made on behalf of the bail petitioner, who is

behind bars, for grant of regular bail in connection with FIR No. 133/17

dated 7.12.2017, under Section 376 of IPC and Sections 6 17 of the

POCSO Act, registered at Tissa, District Chamba, H.P.

2. Sequel to order dated 5.3.2018, ASI Satpal, PS Tissa, District

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

hereinabove, was lodged at the behest of the complainant namely

.

Ramdei, who alleged that her minor daughter was enticed and taken

away in her absence by the accused namely Sanjeev Kumar and his

father i.e. present bail petitioner on 25.9.2017. On 26.9.2017, complainant

contacted her daughter over telephone, who disclosed that she has

been brought to village Kanori by the accused Sanjeev Kumar and his

father Chaman Singh (bail petitioner). Since families of the complainant

and accused were known to each other and they had also agreed for

marriage of daughter of the complainant with accused Sanjeev Kumar,

complainant thought it proper, not to register any complaint with the

police station against the aforesaid illegal act of Sanjeev Kumar and

Chaman Singh, but allegedly after one and half month of aforesaid

incident, mother of the petitioner, who is also an accused in the case,

along with co-accused Sanjeev Kumar, visited the house of the

complainant alongwith daughter of the complainant. Mother of the

accused namely Sanjeev Kumar after leaving daughter of the

complainant at her house, came back to her village. Since no one from

the family of the bail petitioner and other accused, came back to take

the daughter of the complainant back, complainant made various efforts

to contact the bail petitioner as well as other accused, but they all

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refused to take daughter of the complainant to their house. In the

aforesaid background, case came to be registered against the bail

.

petitioner, his wife Rattni Devi and son Sanjeev Kumar.

4. This Court, after having perused record, had ordered for

release of wife of the petitioner on bail, vide judgment dated 19.1.2018,

passed in Cr.MP(M) No. 39 of 2018. At this stage, it may be noticed that

bail petitioner who happened to be father of the accused namely

Sanjeev Kumar, who had allegedly committed offence punishable under

Section 376 IPC with the daughter of the complainant, had also

withdrawn Cr.MP(M) No. 38 of 2018, vide order dated 19.1.2018, with

liberty to file afresh at appropriate stage.

5. Mr. K.B. Khajuria, Advocate, representing the bail petitioner

while referring to the fresh status report placed on record, contended that

bail petitioner has approached this Court in a changed circumstance,

wherein admittedly, new fact with regard to the report submitted by the

RFSL has come to the fore and as such, present petition is maintainable.

While referring to the record/status report, learned counsel for the

petitioner contended that it stands duly proved on record that at no point

of time, daughter of the complainant was enticed/induced by the bail

petitioner or his family members to accompany them to their house,

rather as per own case set up by the Investigating Agency, families of the

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complainant and accused were well known to each other and they had

agreed for marriage of daughter of the complainant with the co-accused

.

namely Sanjeev Kumar. He further contended that there is no evidence

available on record at this stage, suggestive of the fact that daughter of

the complainant was compelled to go to the house of the bail petitioner,

rather daughter of the complainant, who was engaged with the son of

the bail petitioner, herself of her own volition stayed at the house of the

bail petitioner for more than a month. While referring to the conduct of

the mother of the complainant, learned counsel contended that she

despite having discovered the fact that her daughter has been taken by

the bail petitioner and his son on 25.9.2017, never thought it proper to

register the FIR, which ultimately came to be lodged on 7.12.2017, i.e.

after a period of three months. While referring to the report of RFSL, Mr.

Khajuria, contended that no case, if any, is made out against the son of

the bail petitioner under Section 376 IPC and Sections 6 and 17 of POCSO,

Act, 2012 and as such, he deserves to be enlarged on bail. Lastly, Mr.

Khajuria, contended that even if otherwise, there is nothing on record,

from where it can be inferred that the bail petitioner is involved in the

crime allegedly committed by his son namely Sanjeev Kumar under the

aforesaid provisions of law. While referring to the judgment dated

19.1.2018, passed by this court, in CrMP(M) No. 39 of 2018, Mr. Khajuria,

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contended that another co-accused, who happened to be the wife of

the bail petitioner, has been already ordered to be enlarged on bail and

.

as such, present petitioner also deserves to be enlarged on bail.

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

while fairly admitting the fact that present petition has been filed in a

changed circumstance, opposed the prayer for grant of bail, having

been made on behalf of the bail petitioner and contended that keeping

in view the gravity of offence allegedly committed by the son of bail

petitioner in connivance with the bail petitioner, he does not deserve to

be enlarged on bail and present petition deserves to be dismissed. He

further contended that true it is that as per forensic report, there is no

evidence of recent sexual intercourse but that may not be sufficient to

conclude that son of the bail petitioner did not indulge in sexual assault as

has been alleged by the daughter of the complainant, because in report,

it has been stated that there is no evidence of recent sexual intercourse,

meaning thereby, there is no opinion, if any, qua the period during which

daughter of the complainant remained with the co-accused Sanjeev

Kumar. Lastly, Mr. Thakur, contended that in the event of petitioner’s

being enlarged on bail, there is every likelihood of his influencing the

evidence, which may be very crucial for ascertaining the guilt of the

accused named in the FIR.

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7. I have heard learned counsel representing the parties and

gone through the record.

.

8. Careful perusal of record clearly reveals that family of the

complainant and bail petitioner were known to each other and they had

agreed inter-se them to solemnize marriage of the daughter of the

complainant with son of the bail petitioner. It is also not in dispute that

mother of the complainant despite having known the fact that on

25.9.2017, bail petitioner and co-acused Sanjeev Kumar, had taken her

daughter to their house, failed to report the matter to the police, rather

she chose to remain quite for almost three months. Investigation further

reveals that during the aforesaid period of three months, mother of the

complainant also did not make any effort to bring her daughter back to

her house from the village of the petitioner. Explanation rendered by the

complainant for delay in lodging the FIR, does not appear to be plausible

because once she knew that marriage of her daughter has not been

solemnized with co-accused Sanjeev Kumar, there was no occasion for

her to allow her daughter to remain in the company of Sanjeev Kumar co-

accused that too for a period of three months. Otherwise also, this Court

finds considerable force in the argument of Mr. Khajuria, that at this stage,

there appears to be no evidence collected on record by the

Investigating Agency suggestive of the fact that bail petitioner or his wife,

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who has already been enlarged on bail, abetted/instigated the co-

accused Sanjeev Kumar, to commit offence, if any, under Section 376 of

.

IPC, against the daughter of the complainant.

9. Leaving everything aside, perusal of medical evidence as

well as report of RFSL placed on record by the Investigating Agency

nowhere corroborate the version put forth by the victim/prosecutrix. True

it is that RFSL in its report has opined that there is no evidence of recent

sexual intercourse but even if initial report submitted by the medical

officer is seen/perused, he has also not given a conclusive report to the

effect that daughter of the complainant was subjected to sexual

intercourse.

10. 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.

11. 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

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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.

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

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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.”

12. 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

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

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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.”

13. 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.

14. 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

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

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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
r 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
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

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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)

15. In Sundeep Kumar Bafna versus State of Maharashtra

another (2014)16 Supreme Court Cases 623, wherein it has been held as

under:-

“8. Some poignant particulars of Section 437 CrPC may be
pinpointed. First, whilst Section 497(1) of the old Code alluded to
an accused being “brought before a Court”, the present provision
postulates the accused being “brought before a Court other than
the High Court or a Court of Session” in respect of the commission

of any non-bailable offence. As observed in Gurcharan Singh vs
State( Delhi Admn) (1978) 1 SCC 118, there is no provision in the
CrPC dealing with the production of an accused before the Court
of Session or the High Court. But it must also be immediately noted
that no provision categorically prohibits the production of an

accused before either of these Courts. The Legislature could have
easily enunciated, by use of exclusionary or exclusive
terminology, that the superior Courts of Sessions and High Court

are bereft of this jurisdiction or if they were so empowered under
the Old Code now stood denuded thereof. Our understanding is in
conformity with Gurcharan Singh, as perforce it must. The scheme
of the CrPC plainly provides that bail will not be extended to a

person accused of the commission of a non-bailable offence
punishable with death or imprisonment for life, unless it is
apparent to such a Court that it is incredible or beyond the realm
of reasonable doubt that the accused is guilty. The enquiry of the
Magistrate placed in this position would be akin to what is
envisaged in State of Haryana vs Bhajan Lal, 1992 (Supp)1 SCC
335, that is, the alleged complicity of the accused should, on the
factual matrix then presented or prevailing, lead to the
overwhelming, incontrovertible and clear conclusion of his

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innocence. CrPC severely curtails the powers of the Magistrate
while leaving that of the Court of Session and the High Court
untouched and unfettered. It appears to us that this is the only
logical conclusion that can be arrived at on a conjoint

.

consideration of Sections 437 and 439 of the CrPC. Obviously, in
order to complete the picture so far as concerns the powers and

limitations thereto of the Court of Session and the High Court,
Section 439 would have to be carefully considered. And when this
is done, it will at once be evident that the CrPC has placed an
embargo against granting relief to an accused, (couched by us in

the negative), if he is not in custody. It seems to us that any
persisting ambivalence or doubt stands dispelled by the proviso
to this Section, which mandates only that the Public Prosecutor
should be put on notice. We have not found any provision in the
CrPC or elsewhere, nor have any been brought to our ken,
curtailing the power of either of the superior Courts to entertain

and decide pleas for bail. Furthermore, it is incongruent that in the
face of the Magistrate being virtually disempowered to grant bail
in the event of detention or arrest without warrant of any person
accused of or suspected of the commission of any non-bailable
offence punishable by death or imprisonment for life, no Court is
enabled to extend him succour. Like the science of physics, law

also abhors the existence of a vacuum, as is adequately
adumbrated by the common law maxim, viz. ‘where there is a

right there is a remedy’. The universal right of personal liberty
emblazened by Article 21 of our Constitution, being fundamental
to the very existence of not only to a citizen of India but to every
person, cannot be trifled with merely on a presumptive plane. We
should also keep in perspective the fact that Parliament has
carried out amendments to this pandect comprising Sections 437

to 439, and, therefore, predicates on the well established
principles of interpretation of statutes that what is not plainly
evident from their reading, was never intended to be
incorporated into law. Some salient features of these provisions
are that whilst Section 437 contemplates that a person has to be

accused or suspect of a non-bailable offence and consequently
arrested or detained without warrant, Section 439 empowers the
Session Court or High Court to grant bail if such a person is in

custody. The difference of language manifests the sublime
differentiation in the two provisions, and, therefore, there is no
justification in giving the word ‘custody’ the same or closely
similar meaning and content as arrest or detention. Furthermore,

while Section 437 severally curtails the power of the Magistrate to
grant bail in context of the commission of non-bailable offences
punishable with death or imprisonment for life, the two higher
Courts have only the procedural requirement of giving notice of
the Bail application to the Public Prosecutor, which requirement is
also ignorable if circumstances so demand. The regimes
regulating the powers of the Magistrate on the one hand and the
two superior Courts are decidedly and intentionally not identical,
but vitally and drastically dissimilar. Indeed, the only complicity
that can be contemplated is the conundrum of ‘Committal of

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cases to the Court of Session’ because of a possible hiatus
created by the CrPC.”

16. 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.

17. 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

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. 1,00,000/- with one local surety in the like amount to

the satisfaction of concerned Chief Judicial Magistrate, with following

conditions:

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(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

18.

(d)

He shall not leave the territory of India without the prior
permission of the Court.

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.

19. 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.

19th March, 2018 (Sandeep Sharma),
manjit Judge

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