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Cr.Mp(M) No. 1046 Of 2018 vs State Of Himachal Pradesh on 31 August, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) Nos.1046 and 1047 of 2018
Decided on: 31.8.2018

.

1. Cr.MP(M) No. 1046 of 2018
Jaan Mohammad ………..Petitioner
Versus
State of Himachal Pradesh ……….Respondent

2. Cr.MP(M) No. 1047 of 2018
Dulla ………..Petitioner
Versus

State of Himachal Pradesh ……….Respondent

Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioner(s)
r : Mr. N.K. Thakur, Senior Advocate with

Mr.Divya Raj Singh and Mr. Anubhav
Chopra, Advocate.
For the Respondent : Mr. S.C. Sharma, Additional Advocate
General and Mr. Amit K. Dhumal,
Deputy Advocate General.

Sandeep Sharma, Judge (oral):

Above named persons, who are behind the bars since 21st

June, 2018, have approached this Court in the instant proceedings filed

under Section 439 of Cr.PC, praying therein for grant of regular bail in

case FIR No. 68/18 dated 19.6.2018, under Sections 376-D, 323, 341 and

504 of IPC, registered at PS Tissa, District Chamba, HP.

2. Sequel to order dated 17.8.2018, passed by this Court, ASI

Yashpal, PS Tissa, District Chamba, HP, has come present in Court

1
Whether the reporters of the local papers may be allowed to see the judgment?

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2

alongwith record of the case. Record perused and returned. 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, perusal whereof suggests that on 19.6.2018,

complainant/prosecutrix lodged a complaint with Superintendent of

Police, Chamba, who subsequently forwarded the same to the police

Station Tissa, Kullu, alleging therein that on 18.6.2018, when she was out in

jungle for grazing the cattles, above named bail petitioners gave

beatings to her and subsequently, sexually assaulted her on two

occasions against her wishes. On the basis of aforesaid statement having

been made by the complainant/prosecutrix, aforesaid FIR came to be

lodged against the present petitioners and they are behind bars since

21.6.2018.

3. Learned Additional Advocate General on the instructions of

the investigating officer, who is present in Court, fairly stated that

investigation in the case is complete and nothing is required to be

recovered from the bail petitioners. He further informed this Court that

challan stands filed in the competent court of law.

4. Mr. N.K. Thakur, learned Senior Counsel, representing the bail

petitioners, while inviting attention of this Court to the record/status report,

vehemently argued that no case, if any, is made out against the bail

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petitioners under the aforesaid provisions of law and as such, they deserve

to be enlarged on bail. While referring to the statement of the

.

complainant/prosecutrix recorded under Section 164 Cr.PC, Mr. N.K.

Thakur, contended that statement given by the complainant/prosecutrix

before the Magistrate is in total contradiction of her initial report given by

her under Section 154 Cr.PC, to the police and as such, no much reliance

can be placed upon the same. Mr. Thakur, also invited attention of this

Court to the medical evidence adduced on record by the Investigating

Agency to demonstrate that nothing has come in the evidence

suggestive of the fact that complainant/prosecutrix was sexually

assaulted by the bail petitioners against her wishes. Mr. Thakur, further

contended that it stands duly proved on record that bail petitioners are

first cousins of the complainant/prosecutrix and they have prior animosity

on account of dispute of some land. During the proceedings of the case,

Mr. Thakur, also produced affidavit duly authorized by the notary, Sub

Division Chamba, to state that after lodging of FIR mentioned herein

above, complainant/prosecutrix has executed an affidavit to the effect

that she was not sexually assaulted by the bail petitioners, rather she was

only given beatings and she had falsely lodged FIR against the bail

petitioners. Photocopy of the affidavit is taken on record.

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5. Mr. Dinesh Thakur, learned Additional Advocate General

while fairly acknowledging the factum with regard to the completion of

.

investigation contended that keeping in view the gravity of offence

allegedly committed by the bail petitioners, they do not deserve to be

shown any leniency, rather needs to be dealt with severely. While refuting

the contention of learned Senior Counsel that nothing has emerged in the

medical evidence adduced on record, learned Additional Advocate

General while referring to the record/status report contended that final

report in this regard is yet to be given by the medical officer, who had

initially examined the complainant-prosecutrix. Learned Additional

Advocate General further contended that though there appears to be

some variations in the statement given by the complainant/prosecutrix

under Section 164 Cr.PC, but since that statement of her has been

recorded before the Magistrate, it is required to be considered and same

cannot be rejected solely on the ground that complainant/ prosecutrix

had given altogether different version in her initial statement recorded

under Section 154 of Cr.PC., on the basis of which, formal FIR came to be

registered. As far as affidavit placed on record is concerned, Mr. Thakur,

contended that they have no knowledge with regard to the same.

6. Having heard learned counsel for the parties and perused

record, this Court finds considerable force in the argument of learned

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Senior Counsel, representing the petitioners-accused that there are

material contradictions in the statement of complainant/prosecutrix in her

.

initial statement recorded under Section 154 Cr.PC vis-à-vis her statement

recorded under Section 164 Cr.PC. Similarly this Court finds that nothing

has emerged against the bail petitioners in the report submitted by the

RFSL Dharamshala. True it is that final opinion is yet to bet given by the

Medical Officer, but having carefully perused report of RFSL, this Court is

of the view that no concrete evidence has been collected on record at

this stage by the Investigating Agency suggestive of the fact that the

complainant/prosecutrix was sexually assaulted by the bail petitioners

against her wishes.

7. Leaving everything aside, there is ample evidence available

on records suggestive of the fact that that petitioners are the first cousins

of the complainant/ prosecutrix and they have prior animosity on

account of dispute over the joint land. Apart from above, affidavit

placed on record, which has been alleged to be executed by the

complainant/prosecutrix further corroborates the version put forth by the

accused that they have been falsely implicated on account of some

family dispute.

8. Having gone through the material available on record, this

Court sees no reason to keep the bail petitioners behind the bars for an

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indefinite period, especially when guilt, if any, of them is yet to be proved

in accordance with law. Apprehension expressed by learned Additional

.

Advocate General that bail petitioners may flee from justice can be met

by putting them to stringent conditions. Repeatedly, it has been held by

the Hon’ble Apex Court as well as this Court that freedom of an individual

is utmost importance and cannot be curtailed for an indefinite period.

9. Needless to say, guilt, if any, of the bail petitioners is yet to

be proved in accordance with law by the prosecution by leading cogent

and convincing evidence. It is well settled that till the time a person is not

found guilty, one is deemed to be innocent. 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 a

fundamental postulate of criminal jurisprudence is the presumption of

innocence, meaning thereby that a person is believed to be innocent

until found guilty. Hon’ble Apex Court further held that while considering

prayer for grant of bail, 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. Hon’ble Apex Court has further held

that if an accused is not hiding from the investigating officer or is hiding

due to some genuine and expressed fear of being victimized, it would be

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a factor that a judge would need to consider in an appropriate case. 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
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

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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. Needless to say object of the bail is to secure the

attendance of the accused in the trial and the proper test to be applied

in the solution of the question whether bail should be granted or refused is

whether it is probable that the party will appear to take his trial.

Otherwise, bail is not to be withheld as a punishment. 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.

11. The Hon’ble Apex Court in Sanjay Chandra versus Central

Bureau of Investigation (2012)1 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 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

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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. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC

218, The Hon’ble Apex Court has held as under:-

” This Court in Sanjay Chandra v. CBI, 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 or 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 to 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 ad 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 the
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.”

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13. The Hon’ble Apex Court in Prasanta Kumar Sarkar v. 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;

(vii) reasonable apprehension of the witnesses being influenced;

and

(viii) r 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, petitioners have carved out a case for grant

of bail, accordingly, the petitions are allowed and the petitioners are

ordered to be enlarged on bail in aforesaid FIR, subject to their furnishing

personal bond in the sum of Rs. 1,00,000/- each with one local surety each

in the like amount to the satisfaction of concerned Chief Judicial

Magistrate/JMIC/trial Court, with following conditions:

(a) They shall make themselves 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) They shall not tamper with the prosecution evidence
nor hamper the investigation of the case in any manner
whatsoever;

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(c) They 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) They shall not leave the territory of India without the
prior permission of the Court.

15. It is clarified that if any of 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 petitions stand accordingly disposed of.

Copy dasti.

31st August, 2018 (Sandeep Sharma),

manjit Judge

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