IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 700 of 2018 A/w
Cr.MP(M) No.726 732 of 2018
Date of Decision No. 15.06.2018
.
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Cr.MP(M) No.700 of 2018
Jagdish Chand …….. Petitioner
Versus
State of Himachal Pradesh …..Respondent
Cr.MP(M) No.726 of 2018
Tek Chand …….. Petitioner
Versus
State of Himachal Pradesh …..Respondent
Cr.MP(M) No.732 of 2018
Mahinder …….. Petitioner
Versus
State of Himachal Pradesh …..Respondent
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Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the petitioner(s): Mr. Vijay Chaudhary, Mr. Kulbhushan
Khajuria and Mr. Divya Raj Singh,
Advocates.
For the respondent(s): Mr. S.C.Sharma Dinesh Thakur,
Additional Advocate Generals, with Mr.
Amit Kumar, Deputy Advocate General.
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Sandeep Sharma, Judge (oral):
Since all the above captioned bail petitions arise out of
same FIR, same are being taken up together, for disposal by way of
this common judgment.
1
Whether the reporters of the local papers may be allowed to see the judgment?
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2. Bail petitioners, named hereinabove, by way of instant
bail petitions filed under Section 439 of the Code of Criminal
.
Procedure, have prayed for grant of regular bail in case FIR No.103
of 2017, dated 26.09.2017, under Sections 354A and 376C(3) of
IPC and Sections 6 and 10 of the Protection of Children from Sexual
Offences Act, registered at Police Station, Tissa, District Chamba,
Himachal Pradesh.
3. Sequel to order dated 12.06.2018, ASI Hem Raj, has
come present alongwith the record. 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. Record perused and returned.
4. Close scrutiny of the record/status report reveals that
Chairperson, Child Welfare Committee, Chamba, District Chamba,
Himachal Pradesh and District Child Protection Officer, Chamba,
District Chamba, Himachal Pradesh, filed a complaint on
26.09.2017 before the Superintendent of Police, Chamba, alleging
therein sexual harassment of children/inmates staying in Child
Care Institution, Tissa at Chilli, District Chamba, Himachal
Pradesh. Complainants, named hereinabove, alleged that it has
come to the notice of the Child Welfare Committee and District
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Child Protection Unit that there is apprehension of offences being
committed by the staff members of Child Care Institution, Tissa at
.
Chilli, upon the children/inmates staying therein. On the basis of
aforesaid complaint, FIR detailed hereinabove, came to be lodged
against the present bail petitioners and other coaccused. After
completion of the investigation, police presented the challan in the
competent Court of law. Bail petitioners, named hereinabove, are
behind the bars since 27.9.2017. Though, bail petitioners, as
referred above, had approached this Court earlier for grant of bail,
but subsequently those bail petitions were withdrawn with liberty
to file afresh at an appropriate stage.
5. Learned counsel representing the bail petitioners, state
that now bail petitions have been filed in the change circumstances
because all the prosecutrixes except one have been examined and
they have not supported the case of the prosecution and as such,
bail petitioners deserve to be enlarged on bail. Initially, in the
statements recorded under section 164 of the Code of Criminal
Procedure, five girls, who were residing at Child Care Institution,
Tissa at Chilli, alleged that the accused/petitioners, named
hereinabove, not only behaved indecently with them, but on many
occasions tried to touch their private parts. One of the prosecutrix
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also alleged that one of the accused tried to outrage her modesty
and sexually assault her against her wishes.
.
6. Learned counsel representing the bail petitioners while
inviting attention of this Court to the judgment dated 29.5.2018
rendered by this Court in Cr.MP(M) No.652 of 2018, filed by one of
the coaccused, namely Vyaso Ram, contend that this Court taking
note of the statements made by the prosecutrixes ( five in number)
before the learned trial Court, released him on bail and as such,
present bail petitioners also deserve to be enlarged on bail. Learned
counsel for the petitioners further contend that in view of the
statements made by the prosecutrixes before the learned trial
Court, no case is made out against the bail petitioners because all
the prosecutrixes have resiled from their statements and have
categorically stated before the learned trial Court that none of the
accused including the present bail petitioners have ever behaved
indecently or ever tried to outrage their modesty.
7. Mr. Dinesh Thakur, learned Additional Advocate
General, while fairly admitting the factum with regard to passing of
the judgment dated 29.5.2018, passed in Cr.MP(M) No.652 of 2018,
contends that no doubt prosecutrixes in their statements before the
learned trial Court below have not supported the case of the
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prosecution, but taking note of the fact that they all are minor
living in child home, it would be too early to conclude that bail
.
petitioners would be acquitted of the charges framed against them.
However, Mr. Dinesh Thakur, learned Additional Advocate
General, on the instructions of the Investigating Officer, who is
present in Court, fairly admitted that all the prosecutrixes have
resiled from their statements and have denied the allegations
contained in the FIR as well as statements recorded under Section
164 of the Code of Criminal Procedure before the Magistrate.
8. Learned counsel for the petitioners while specifically
inviting attention of this Court to order dated 11.4.2018, passed by
the learned trial Court, contend that since sixth prosecutrix being
mentally retarded was not able to make statement before the Court,
her statement was not recorded. Learned counsel also invited
attention of this Court to the opinion rendered by the Medical
Board constituted by the Court, to demonstrate that sixth
prosecutrix is suffering from moderate mental retardation (ICD10
F71, mental age from 6 to under 9 years) with disability of seventy
two percent (72%) permanent in nature.
9. Having carefully examined the statements made by
five prosecutrixes before the trial Court, this Court is persuaded to
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agree with the contention raised by the learned counsel for the
petitioners that no case is made out against the bail petitioners and
.
other coaccused, named in the FIR. Though, these prosecutrixes
were declared hostile, but even in their crossexamination nothing
material could be elicited and as such, this Court finds considerable
force in the arguments of learned counsel representing the bail
petitioners that there is very remote/bleak possibility of conviction
as far as accused named in the FIR, are concerned.
10. True, it is that all the prosecutrixes in their initial
statements recorded under Section 164 of the Code of Criminal
Procedure before the learned Magistrate, had levelled allegations of
sexual assault against the bail petitioners, but shockingly in their
statements recorded before the learned trial Court they have
categorically stated that they had not levelled any allegations
against the bail petitioners, rather they were compelled by the
Child Helpline Chamba to file complaint against the bail
petitioners as well as other coaccused. During trial, when
prosecutrixes were confronted with their statements made by them
before the Magistrate under Section 164 Cr.P.C, they categorically
stated that they had made false statements before the Magistrate,
on the askance of Child Helpline, Chamba.
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11. Leaving everything aside, medical evidence adduced on
record, nowhere suggest sexual assault, if any, committed upon the
.
prosecutrixes by the bail petitioners and other coaccused, named
in the FIR. Since trial is yet to be concluded, aforesaid aspects of
the matter are to be considered and decided by the learned trial
Court below on the basis of the entire evidence adduced on record
by the prosecution, but having taken note of the statements
admittedly made by prosecutrixes before the learned trial Court,
this Court sees no justification to keep the bail petitioners behind
the bars for indefinite period, especially when they have already
suffered more than 9 months. Moreover, 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. There is not
dispute that this Court taking note of the statements made by the
prosecutrixes before the trial Court, has already enlarged co
accused Vyaso Ram on the bail vide judgment dated 29.5.2018,
passed in Cr.MP(M) No.652 of 2018.
12. Hon’ble Apex Court in Ranjitsingh Brahmajeetsing
Sharma v. State of Maharashtra (2005) 5 SCC 294, while
dealing with case registered under Maharashtra Control of
Organised Crime Act, 1999 (MCOCA), which also contains
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stringent provisions, has categorically held that if the Court, having
regard to the materials brought on record, is satisfied that in all
.
probability he may not be ultimately convicted, an order granting
bail may be passed. It has been held as under:
“38. We are furthermore of the opinion that the
restrictions on the power of the Court to grant bail
should not be pushed too far. If the Court, having
regard to the material s brought on record, is satisfied
that in all probability he may not be ultimatelyconvicted, an order granting bail may be passed. The
satisfaction of the Court as regards his likelihood of not
committing an offence while on bail must be construed
to mean an offence under the Act and not any offencewhatsoever be it a minor or major offence. If such an
expansive meaning is given, even likelihood ofcommission of an offence under Section 279 of the
Indian Penal Code may debar the Court from releasing
the accused on bail. A statute, it is trite, should not be
interpreted in such a manner as would lead toabsurdity. What would further be necessary on the part
of the Court is to see the culpability of the accused and
his involvement in the commission of an organised
crime either directly or indirectly. The Court at thetime of considering the application for grant of bail
shall consider the question from the angle as to whetherhe was possessed of the requisite mens rea. Every little
omission or commission, negligence or dereliction may
not lead to a possibility of his having culpability in the
matter which is not the sine qua non for attracting theprovisions of MCOCA. A person in a given situation
may not do that which he ought to have done. The
Court may in a situation of this nature keep in mind
the broad principles of law that some acts of omission
and commission on the part of a public servant may
attract disciplinary proceedings but may not attract a
penal provision.”
13 Recently, the Hon’ble Apex Court in Criminal
Appeal No. 227/2018, Dataram Singh vs. State of Uttar
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Pradesh Anr decided on 6.2.2018 has held that freedom of an
individual cannot be curtailed for indefinite period, especially when
.
his guilt has not been proved. It has further held by the Hon’ble
Apex Court in the aforesaid judgment that a person is believed to
be innocent until found guilty. The Hon’ble Apex Court has held 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.
14. 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
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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 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
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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.”
15.
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
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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.”
16. 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.
17. The Hon’ble Apex Court in Prasanta Kumar Sarkar
v. Ashis Chatterjee and Another (2010) 14 SCC 496, has laid
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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) danger, of course, of justice being thwarted
by grant of bail.
18. Consequently, in view of the above, present bail
petitions are allowed. Petitioners are ordered to be enlarged on bail
subject to their furnishing personal bond in the sum of Rs.
1,00,000/ (Rs. One lakh) with one local surety each in the like
amount, to the satisfaction of the learned trial Court, with following
conditions:
a. They shall make themselves available for the
purpose of interrogation, if so required and18/06/2018 23:01:15 :::HCHP
14regularly 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;
c. They shall not make any inducement, threat or
promises to any person acquainted with the facts
of the case so as to dissuade them 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.
19. It is clarified that if the petitioners misuse their liberty
or violates any of the conditions imposed upon them, the
investigating agency shall be free to move this Court for
cancellation of their bail.
20. 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 these applications alone.
The bail petitions stand disposed of accordingly.
Copy dasti.
(Sandeep Sharma),
Judge
15th June, 2018
(shankar)
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