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Date Of Decision: 11.3.202 vs State Of Himachal Pradesh on 11 March, 2020

IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA

Cr. MP(M) No. 130 of 2020

.

Date of Decision: 11.3.2020
_
Ramkesh …….. Petitioner

Versus
State of Himachal Pradesh …..Respondent.

_
Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1

For the Petitioner: Mr. Manoj Pathak, Advocate.

For the Respondent: Mr. Kunal Thakur, Deputy Advocate
General.
_

Sandeep Sharma, Judge (oral):

Bail petitioner namely, Ramkesh, who is behind

the bars since 12.3.2019, has approached this Court in the

instant proceedings filed under Section 439 of the Code of

Criminal Procedure, praying therein for grant of regular bail

in case FIR No. 18/2019, dated 3.7.2019, under Sections 376,

363, 366A and 34 IPC and Section 4 of POCSO Act registered

at police Station, Chirgaon, District Shimla, Himachal

Pradesh.

1

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

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2

2. Pursuant to order dated 20.1.2020, ASI Achhar

Singh has come present alongwith the record. Mr. Kunal

.

Thakur, learned Deputy 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.

3. Close scrutiny of the record/status report reveals that on

7.3.2019, complainant, Smt. Ram Pyari, lodged a complaint at

Police Station Chirgaon, District Shimla, HP alleging therein

that her minor daughter has gone missing. She alleged that on

6.3.2019, victim/prosecutrix (name withheld to protect her

identity),informed her over telephone that she is in

Chandigarh. Complainant alleged that some unknown person

has made her minor daughter elope with him and as such

appropriate action be taken against him. During investigation,

Police recovered victim/prosecutrix from the house present bail

petitioner at Village Dhua, District Jind, Haryana, father of

the bail petitioner informed Investigating Agency that the bail

petitioner and victim/prosecutrix have solemnized marriage in

Shiv Mandir. On 12.3.2019, Police after getting

victim/prosecutrix medically examined at CHC Sandasu also

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got her statement recorded under Section 164 Cr.P.C. before

Additional Chief Judicial Magistrate Rampur on 12.3.2019

.

and thereafter registered case against the bail petitioner as

well as other co­accused Kishore under Section 363, 366A and

34 IPC and Section 4 of POCSO Act. Since 12.3.2019, bail

petitioner is behind the bars.

4. Mr. Kunal Thakur, learned Deputy Advocate

General on the instructions of Investigating Officer, who is

present in Court, states that though investigating in the case

is complete and no recovery is remained to be effected from the

bail petitioner, but keeping in view the gravity of offence

alleged to have been committed by him, he does not deserve

any leniency and as such, prayer made on his behalf, may be

rejected. Learned Deputy Advocate General further states

that since 26 PWs remain to be examined it may not be in the

interest of justice to release the bail petitioner at this stage.

He further states that since bail petitioner hails from the

State of Haryana, it would not be easy for the Investigating

Agency to secure his presence during trial and as such, prayer

having been made by the bail petitioner may be rejected at

this stage.

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5. Having heard learned counsel representing the

parties and perused the material available on record,

.

especially statement of prosecutrix recorded under Section 164

Cr.P.C., this Court finds that the victim/prosecutrix and bail

petitioner were known to each other for quite long and they

have been meeting frequently. It is quite apparent from the

aforesaid statement of victim/prosecutrix that she of her

volition and without there being any external pressure went

with the bail petitioner with a view to solemnize marriage.

Victim/prosecutrix in her statement made before Additional

Chief Judicial Magistrate as well as trial court, has fairly

admitted that she knew the bail petitioner for quite long and

with him wanted to solemnize marriage. Both the statements

of the victim/prosecutrix as referred above, if are read in

conjunction, same clearly suggest that at no point of time, the

bail petitioner compelled her to join his company, rather, the

victim/prosecutrix of her own volition went with him to

solemnize marriage. Medical evidence adduced on record also

does not support the case of the prosecution. No doubt, consent

if any, of the minor is immaterial as far as commission of

offence under Section 376 IPC is concerned but having taken

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note of the fact that at the time of alleged incident,

victim/prosecutrix was more than 17 ½ years of age, it cannot

.

be said that she is/was incapable of understanding the

consequences of her being in the company of the bail petitioner

to whom she knew for a considerable time. Moreover there is

evidence available on record suggestive of the fact that

victim/prosecutrix solemnized marriage with the bail

petitioner in Shiv Mandir, Jind, Haryana. Statement of the

victim/prosecutrix as well as other material prosecution

witnesses stand recorded and as such, no fruitful purpose

would be served by keeping the bail petitioner behind the

bars for an indefinite period, who has otherwise suffered for

more than one year. Apprehension expressed by learned

Deputy Advocate General with regard to petitioner’s fleeing

from justice in the event of his being enlarged on bail, can be

best met by putting him to stringent conditions, as has been

fairly admitted by the learned counsel representing the bail

petitioner.

6. Though, aforesaid aspects of the matter are to be

considered and decided by the learned trial Court on the basis

of totality of evidence to be collected on record by the

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investigating agency, but having noticed aforesaid aspect of

the matter, this Court sees no reason to let the bail petitioner

.

incarcerate in jail for indefinite period during trial, especially

when he has already suffered for more than one year.

7. It has been repeatedly held by Hon’ble Apex Court

as well as this Court in catena of cases that one is deemed to

be innocent till the time his /her guilt is not proved, in

accordance with law. In the case at hand, the guilt, if any, of

the bail petitioner is yet to be proved, in accordance with law.

8. 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

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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 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.

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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 first­time
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

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social and other problems as noticed by this
Court in In Re­Inhuman Conditions in 1382
Prisons

9. 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 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

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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.”

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

r to
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 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;

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11

(iii) severity of the punishment in the event of
conviction;

(iv) danger of the accused absconding or
fleeing, if released on bail;

.

character, behaviour, means, position and

(v)
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.

12.

Consequently, in view of the above, present bail

petition is allowed. Petitioner is ordered to be enlarged on bail

subject to his furnishing personal bond in the sum of

Rs. 1,00,000/­ (Rs. One lac) with one local surety in the like

amount, to the satisfaction of the learned trial Court, with

following conditions:

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 her from disclosing
such facts to the Court or the Police Officer; and

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

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13. It is clarified that if the petitioner misuses his

liberty or violates any of the conditions imposed upon him, the

.

investigating agency shall be free to move this Court for

cancellation of the bail.

14. 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 bail petition stands disposed of accordingly.

Copy dasti.

(Sandeep Sharma),
Judge
11th March, 2020

(shankar)

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