IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr. MP(M) No. 1005 of 2018
.
Date of Decision No.13.8.2018
_
Chet Ram alias Deepak …….. 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. G.R.Palsra, Advocate.
For the respondent: Mr. S.C.Sharma Mr. Dinesh
Thakur, Addl. Advocate Generals,
with Mr. Amit Kumar, Deputy
Advocate General.
_
Sandeep Sharma, Judge (oral):
Bail petitioner namely Chet Ram alias Deepak,
who is behind the bars since 17.3.2018, 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 FIR No.61 of 2018, dated 16.3.2018, under
Sections 366 and 376 of IPC, registered at police Station,
Manali, District Kullu, Himachal Pradesh.
1
Whether the reporters of the local papers may be allowed to see the judgment?
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2. Sequel to order dated 7.8.2018, ASI Prem Singh,
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.
3. Close scrutiny of the record/status report suggests
that the complainant (hereinafter referred to as the
‘prosecutrix’), who is 32 years old lady, lodged a complaint
with the police at Manali on 16.3.2018, alleging therein that
the bail petitioner,who knows her for the last 10 years, gave
her a call at 7:30 PM in the evening and pressurized her to
solemnize marriage with him. She further alleged that bail
petitioner started weeping/crying and at 12:30 AM arrived at
her house in a vehicle, whereafter she alongwith petitioner
went to Manali and stayed at Hotel Kilimangaro ( Room
No.103). As per the prosecutrix, she alongwith bail petitioner
arrived at aforesaid Hotel at 1:45 AM, whereafter they stayed
in room No.103 and also developed physical relations.
Allegedly, at 6:30 AM in the morning bail petitioner while
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leaving the prosecutrix in the Hotel went out on the pretext
that he has to call person namely, Sunny, but fact remains
.
that he never came back, as a consequences of which, FIR
detailed hereinabove, lodged against the bail petitioner at the
behest of the prosecutrix. Police arrested the bail petitioner on
17.3.2018 and since then he is behind the bars. After
completion of the investigation, police presented the challan in
the competent Court of Law.
4. Mr. G.R.Palsra, learned counsel representing the
bail petitioner, while inviting attention of this Court to the
statement of the prosecutrix recorded under Section 164
Cr.P.C, vehemently argued that no case, if any, under
Sections 366 and 376 of IPC is made against the bail
petitioner, because it is quite apparent that prosecutrix, who
was known to the bail petitioner for the last 10 years, joined
the company of bail petitioner of her own volition and without
there being any pressure from the bail petitioner and as such,
bail petitioner deserves to be enlarged on bail. Mr. Palsra,
further contended that apart from above, medical evidence led
on record, nowhere suggests that bail petitioner sexually
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assaulted the prosecutrix against her wishes because there is
no mention, if any, of marks and resistance on the body of the
.
prosecutrix. Mr. Palsra, further contended that bare perusal of
the MLC adduced on record, nowhere reveals that human
blood and semen, if any, was found on the person of the
prosecutrix. Lastly, Mr. Palsra contended that both
prosecutrix and bail petitioner had prior acquaintance and
they actually wanted to solemnize marriage, but same could
not be materialized on account of opposition of parents of the
prosecutrix. Mr. Palsra, further stated that as per
instructions imparted to him, bail petitioner is still ready to
solemnize marriage with the prosecutrix. Mr. Palsra argued
that since challan stands filed in the competent Court of law
and nothing is required to be recovered from the bail
petitioner, he deserves to be enlarged on bail. He further
stated that bail petitioner is local resident of the area and
there is no likelihood of his fleeing from justice, rather he shall
make himself available for investigation and trial as and when
called by the investigating agency.
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5. Mr. Dinesh Thakur, learned Additional Advocate
General, while fairly acknowledging the factum with regard to
.
filing of challan in the competent Court of law, opposed the
prayer having been made on behalf of the bail petitioner and
contended that keeping in view the nature of offence allegedly
committed by the bail petitioner, he does not deserve any
leniency, rather needs to be dealt with severely. Mr. Thakur
further contended that true, it is that it has come in the
statement of prosecutrix recorded under Section 164 Cr.P.C
that she knew the bail petitioner for the last 10 years but that
did not mean that bail petitioner had a licence to sexually
assault the prosecutrix that too against her wishes. While
refuting the contention of Mr. Palsra, that nothing has
emerged in the medical evidence, Mr. Thakur, contended that
Doctor in his report has categorically opined that possibility of
sexual assault cannot be ruled out.
6. I have heard learned counsel for the parties and
gone through the record carefully.
7. Having carefully examined the record/status report
made available to this Court, especially statement of
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prosecutrix recorded under Section 164 Cr.P.C, this Court
finds that prosecutrix, who is 32 years old lady had prior
.
acquittance with the petitioner and they knew each other for
the last 10 years.Otherwise also, if the complaint lodged by the
prosecutrix is read in its entirety, nowhere reveals that she
was kidnapped or forcibly taken out of her house by the bail
petitioner, rather she of her own volition on the askance of bail
petitioner joined the company of bail petitioner and as such,
there is considerable force in the arguments of learned counsel
for the petitioner that no case, if any, is made out against the
bail petitioner under Section 366 and 376 of IPC. It further
emerge from the record that prosecutrix of her own volition
remained with the bail petitioner at Hotel Kilimangaro where
she was allegedly sexually assaulted against her wishes. This
Court cannot loose the sight of the fact that prosecutrix is
major and by no stretch of imagination it can be accepted that
she was not aware of the consequences of her having joined
the company of the bail petitioner, who was interested in
marrying her, as has been fairly admitted by the
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prosecutrix in her statement recorded under Section 164
Cr.P.C.
.
8. Though, 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 noticed the conduct of the prosecutrix
and the material available on record, this Court is persuaded
to enlarge the bail petitioner on bail at this Stage.
9. Otherwise also, it is well settled that till the time
guilty of a person is not proved in accordance with law, he/she
is deemed to be innocent. Challan stands filed in the
competent Court of law and nothing is required to be recovered
from the bail petitioner, as has been fairly stated by the
Investigating Officer, who is present in Court. No material has
been adduced on record, from where it can be inferred that in
the event of petitioner’s being enlarged on bail, he may flee
from justice and as such, this Court sees no reason to curtail
the freedom of the petitioner for indefinite period, especially
when the investigation in the case is almost complete.
10 Recently, the Hon’ble Apex Court in Criminal Appeal
No. 227/2018, Dataram Singh vs. State of Uttar Pradesh Anr
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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.
11. 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
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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
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
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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. 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.
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;
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(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.
Consequently, in view of the above, present bail
14.
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 lakh) with one 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, seekexemption 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 them from disclosing
such facts to the Court or the Police Officer; andd. He shall not leave the territory of India without the
prior permission of the Court.
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15. 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 his 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 bail petition stands disposed of accordingly.
Copy dasti.
(Sandeep Sharma),
Judge
13th August, 2018
(shankar)
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