IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr. MP(M) No. 1315 of 2018
.
Date of Decision No.25.10.2018
_
Sushil Kumar …….. 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. Nimish Gupta, Advocate.
For the respondent: Mr. S.C.Sharma Mr. Dinesh
Thakur, Mr. Sanjeev Sood, Addl.
Advocate Generals, with Mr. Amit
Kumar, Deputy Advocate General..
_
Sandeep Sharma, Judge (oral):
Bail petitioner namely, Sushil Kumar, who is
behind the bars since 7.2.2018, 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 case FIR No.37 of 2018, dated 5.2.2018, under Sections 363,
376 of IPC and Section 4 of the Protection of Children from
1
Whether the reporters of the local papers may be allowed to see the judgment?
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Sexual Offences Act, registered at police Station, Sadar
District Mandi, Himachal Pradesh.
.
2. Sequel to orders dated 5th/11th October, 2018, SI
Pawan Kumar, 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. Record/status report reveals that FIR, detailed
hereinabove, came to be lodged at the behest of mother of the
prosecutrix, who alleged that her minor daughter, who at the
time of alleged incident was 17 years and 11 months old, has
been kidnapped by some unknown person. On the basis of
aforesaid complaint having been filed by the complainant,
police made certain inquires, but fact remains that on 6.2.2018
daughter of the complainant herself returned back to her
residence and disclosed to her mother that bail petitioner took
her to one hotel last night and sexually assaulted her. After
recording the statement of the complainant, police registered a
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case against the bail petitioner under Sections 363, 376 of IPC
and Section 4 of the POCSO Act.
.
4. Mr. Nimish Gupta, learned counsel representing
the bail petitioner, while inviting attention of this Court to
record/status report, vehemently argued that no case is made
out against the bail petitioner because there is no material
adduced on record suggestive of the fact that bail petitioner
had kidnapped the victim/prosecutrix, rather she of her own
volition joined the company of bail petitioner and remained in
his company. He further contended that medical evidence
adduced on record, nowhere suggests commission of offence, if
any, under Section 376 IPC committed by the bail petitioner.
While referring to the previous medical history of victim/
prosecutrix, Mr. Gupta, made an attempt to persuade this
Court to agree with his contention that prosecutrix is habitual
and as such, bail petitioner, who is behind the bars for the
last more than 9 months, deserves to be enlarged on bail. He
further contended that challan stands already filed in the
competent Court of law and since nothing is required to be
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recovered from the bail petitioner, bail petitioner cannot be
allowed to incarcerate in jail for indefinite period.
.
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, contended that
keeping in view the gravity of the offence allegedly committed
by the bail petitioner, he does not deserves to be enlarged on
bail. Learned Additional Advocate General further contended
that it has specifically come in the medical evidence that
victim/prosecutrix is not mentally well and bail petitioner
taking undue advantage of her mental condition not only
eloped with her, but also sexually assaulted her against her
wishes. While refuting the contention of learned counsel for
the petitioner that nothing has emerged in the medical
evidence against the bail petition, learned Additional Advocate
General, contended that it has specifically come in the medical
evidence that victim/prosecutrix was subjected to sexual
intercourse. He further contended that previous history, if any,
of victim/ prosecutrix cannot be a ground for bail petitioner to
seek bail in the case at hand, when admittedly it stands duly
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proved on record that bail petitioner taking undue advantage
of the innocence of victim prosecutrix, who at the time of
.
alleged incident was minor, sexually assaulted her.
6. Having heard learned counsel for the parties and
perused the material available on record, this Court finds that
it has specifically come in the statement of the victim/
prosecutrix recorded under Section 164 Cr.P.C that she of her
own volition had joined the company of bail petitioner on the
date of alleged incident. She has specifically stated in her
statement given before the Magistrate that she of her own
volition remained with bail petitioner in the hotel when
alleged incident had happened. Otherwise also, as per first
statement/ report made by the complainant to the police her
daughter immediately after coming to her house had disclosed
that bail petitioner took her in a hotel, but she nowhere stated
that her daughter disclosed her that bail petitioner forcibly
sexually assaulted her against her wishes.
7. Having carefully perused the statement of victim/
prosecutrix recorded under Section 164 Cr.P.C., this Court
finds no force in the arguments of learned Additional Advocate
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General that since victim/prosecutrix was mentally retarded,
statement, if any, made by her is of no consequence because
.
there is no mention, if any, with regard to mental illness of
prosecutrix in the statement recorded by the Magistrate under
Section 164 Cr.P.C. Since factum with regard to mental
illness, if any, of prosecutrix is/was well within the knowledge
of the police, it is not understood why this fact was not brought
to the knowledge of the Magistrate, who recorded her
statement under Section 164 Cr.P.C. Otherwise also, careful
perusal of the statement having been made by the prosecutrix
under Section 164 Cr.P.C, nowhere suggests that she is/was
incapable of understanding/ answering the question put to her
by the court, rather narration of facts given by her clearly
suggest that she is/was capable of understanding the question
clearly.
8. Having carefully perused the statement made by
the prosecutrix before the Magistrate, this Court is persuaded
to agree with the contention of Mr. Nimish Gupta, learned
counsel representing the petitioner that prosecutrix of her own
volition without there being any pressure from the side of the
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bail petitioner joined his company and thereafter remained in
his company throughout the night. Apart from above, record
.
also reveals that in past also prosecutrix was admitted in
hospital on account of abortion, which fact itself suggests that
prosecutrix was capable of understanding the consequences of
her being in the company of bail petitioner.
9. Though, aforesaid aspects of the matter are to be
considered and decided by the learned court below on the basis
of the evidence collected by the prosecution, but at this stage,
this Court having perused the material available on record
sees no reason to allow the bail petitioner to incarcerate in jail
for indefinite period, especially when he has already suffered
for more than nine months in jail.
10. 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. Challan stands filed in the
competent Court of law and 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
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the petitioner for indefinite period, especially when the
investigation in the case is almost complete.
.
11. 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
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.
12. By now it is well settled that gravity alone cannot
be decisive ground to deny bail, rather competing factors are
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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
has been held as under:
r to
Investigation (2012)1 Supreme Court Cases 49; wherein it
” 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
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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.”
13. 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
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accused, circumstances which are peculiar to the accused
involved in that crime.
.
14. 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) danger, of course, of justice being thwarted
by grant of bail.
15. 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 lakh) with one local surety in the like
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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 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.
16. 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.
17. 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
October 25, 2018
(shankar)
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