IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr. MP(M) No. 1236 of 2018
.
Date of Decision No.21.11.2018
_
Jagjit Singh @ Vicky …….. 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. T.S.Chauhan, Advocate.
For the respondent: Mr. S.C.Sharma, Mr. Dinesh Thakur
Mr. Sanjeev Sood, Additional
Advocate Generals, with Mr. Amit
Kumar, Deputy Advocate General.
_
Sandeep Sharma, Judge (oral):
Bail petitioner, namely Jagjit Singh @ Vicky, has
approached this Court in the instant proceedings filed under
Section 438 of the Code of Criminal Procedure, praying therein
for grant of prearrest bail in relation to FIR No.17 of 2018,
dated 13.09.2018, under Sections 376, 506 of IPC read with
Section 67 of the Information Technology Act, 2000, registered
at Women Police Station, Sadar, District Una, H.P.
1
Whether the reporters of the local papers may be allowed to see the judgment?
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2. Sequel to orders dated 18.9.2018 31.10.2018, ASI
Asha Devi has come present alongwith the record. Mr. Dinesh
.
Thakur, learned Additional Advocate General has also placed
on record fresh status report, prepared on the basis of the
investigation carried out by the Investigating Agency. Record
perused and returned.
3. Careful perusal of the record/status report, reveals
that complainant (hereinafter referred to as prosecutrix)
lodged a complaint on 13.9.2018 at Women Police Station,
Sadar, District Una, H.P., alleging therein that present bail
petitioner, who was of her prior acquaintance, sexually
assaulted her against her wishes and threatened her that in
case she discloses anything to her parents or her relatives, he
would eliminate her. Prosecutrix further alleged that after the
alleged incident of sexual intercourse, bail petitioner
alongwith his friends namely, Naresh Kumar and Goldy
Kumar started teasing her and they uploaded her photographs
on the face book and Internet. She also alleged that bail
petitioner after loading her photographs on the face book and
Internet kept on pressuring her for maintaining physical
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relations with him. She further alleged that her photographs
loaded on the face book and Internet have been seen by her
.
relatives and villagers and as such, she has no option, but to
self immolate. On the basis of aforesaid complaint, FIR
detailed hereinabove, came to be lodged against the present
bail petitioner and other coaccused namely, Naresh Kumar
and Goldy at Women Police Station, Sadar, District Una, H.P.
under Sections 376, 354A, 354C, 354D, 506 and 34 IPC and
Section 67 of Information Technology Act.
4. Police also got the statement of prosecutrix
recorded under Section 164 Cr.P.C, wherein she reiterated
what she stated in her initial complaint made to the police on
13.9.2018, contents whereof have already taken note
hereinabove. Police also got the prosecutrix medically
examined on 13.9.2018 and Medical Officer vide report dated
18.9.2018 opined that there is nothing to suggest that
prosecutrix was sexually assaulted. Police also seized mobile
phone of present bail petitioner and sent the same to RFSL,
Dharamshala for extracting/retrieving the data with regard
to uploading of photographs of prosecutrix. RFSL,
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Dharamshala vide report dated 26.9.2018, has categorically
recorded that no data related to the case was found in the
.
exhibits marked as Ex.3 and Q1 i.e. smart phone and
memory card of present bail petitioner.
5. Mr. T.S.Chauhan, learned counsel representing the
bail petitioner, while inviting attention of this Court to the
record/status report, vehemently argued that no case, if any, is
made out against the bail petitioner under Sections 376, 354
A, 354C, 354D, 506 and 34 IPC and Section 67 of Information
Technology Act, and as such, he deserves to be enlarged on
bail. While referring to the medical evidence adduced on
record by the Investigating Agency, Mr. Chauhan, contended
that it has specifically opined by the Doctor that prosecutrix
was not sexually assaulted. He further contended that it
stands duly proved with the report of RFSL, Dharamshala
that bail petitioner had not uploaded the photographs of the
prosecutrix, as alleged by her. Lastly, Mr. Chauhan, contended
that investigation in the case is complete and nothing is
required to be recovered from the bail petitioner and as such,
he deserves to be enlarged on bail. Mr. Chauhan, further
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contended that pursuant to order dated 18.9.2018, bail
petitioner has joined the investigation and fully cooperating
.
and as such, his custodial interrogation is not required. He
being first offender deserves to be enlarged on bail.
6. Mr. Dinesh Thakur, learned Additional Advocate
General, while fairly acknowledging the factum with regard to
completion of investigation, contended that pursuant to order
dated 18.9.2018, bail petitioner has joined the investigation
and is fully cooperating. He also admitted that as per the
report submitted by the RFSL, no data has been recovered
from the phone of the bail petitioner, suggestive of the fact
that he had uploaded the photographs of prosecutrix on the
face book and Internet. He further contended that keeping in
view the gravity of the offences allegedly committed by the
bail petitioner, he does not deserves to be enlarged on bail.
7. Having heard learned counsel for the parties and
perused the material available on record, this Court finds that
prosecutrix is major and alleged incident is of December, 2017,
whereas, FIR mentioned hereinabove, came to be lodged on
13.9.2018 i.e approximately after one year and there is no
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explanation rendered on record by the prosecutrix that why for
such long period she kept mum, rather her own initial
.
statement given to the police and subsequent statement
recorded under Section 164 Cr.P.C. suggest that she had prior
acquaintance with the bail petitioner and they had been
meeting each other. Even contents of the FIR suggest that
prosecutrix lodged the complaint only when her photographs
allegedly came to be uploaded on the face book and Internet
and admittedly prior to that she never lodged the complaint, if
any ,with regard to aforesaid incident either to her parents,
police or to her any friends.
8. Leaving everything aside, medical evidence
adduced on record, nowhere suggest that the prosecutrix was
subjected to forcibly sexual intercourse, as alleged by her.
Similarly, report submitted by the RFSL, Dharamshala
suggests that no data with regard to the case was found in the
mobile phone of the bail petitioner. Though, aforesaid aspects
of the matter are to be considered and decided by the court
below on the basis of the totality of evidence collected on
record by the investigating agency, but having perused the
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material available on record at this stage, this Court sees no
reason for the custodial interrogation of bail petitioner,
.
especially when he has already joined the investigation and is
fully cooperating, as has been fairly admitted by the learned
Additional Advocate General. Otherwise also, it is well settled
that till the time guilt of a person is not proved in accordance
with law, he/she is deemed to be innocent.
9. It has been repeatedly held by Hon’ble Apex Court
as well as this Court that freedom of an individual cannot be
curtailed for indefinite period, especially when his/her guilt is
yet to be proved, in accordance with law.
10. 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 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
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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 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
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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
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
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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) to
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.
14. Consequently, in view of the above, order dated
18.09.2018, passed by this Court, is made absolute, subject to
petitioner’s furnishing personal bonds in the sum of Rs. 1,00,000/
( Rs. One Lakh) with one surety in the like amount, to the
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satisfaction of the Investigating Officer, besides the 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 anymanner 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 disclosingsuch 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.
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
21st November, 2018
(shankar)
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