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?
31/08/2018 22:58:30 :::HCHP
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
31/08/2018 22:58:30 :::HCHP
3
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.
31/08/2018 22:58:30 :::HCHP
4
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
31/08/2018 22:58:30 :::HCHP
5
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
31/08/2018 22:58:30 :::HCHP
6
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
31/08/2018 22:58:30 :::HCHP
7
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 beenplaced 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 expressionone 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 influencewitnesses. 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 judicialcustody 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 theinvestigating 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 even31/08/2018 22:58:30 :::HCHP
8Parliament 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, howsoeverpoor 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 a31/08/2018 22:58:30 :::HCHP
9cause 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 anymatter, 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 questionof 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 ataste 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 isdeemed 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 aconduct 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 thatsince 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. Itwas 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.”
31/08/2018 22:58:30 :::HCHP
10
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 thetrial 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;
31/08/2018 22:58:30 :::HCHP
11
(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
31/08/2018 22:58:30 :::HCHP