IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMP(M) No. 921 of 2018
.
Reserved on: 30.08.2018
Decided on: 20.09.2018
Deepak Singh …Petitioner
Versus
State of H.P. r to …Respondent
Coram
The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? Yes.
For the petitioner: Mr. Deepak Kaushal, Advocate.
For the respondent: Mr. Shiv Pal Manhans and Ms.
Rameeta Kumari, Additional Advocate
Generals, with Mr. Raju Ram Rahi,
Deputy Advocate General.
Inspector Mamta, SHO Women Police
Station Nahan, present in person
alongwith record.
Vivek Singh Thakur, Judge.
Petitioner has preferred this petition under
Section 439 of the Code of Criminal Procedure (hereinafter
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2
referred to as ‘CrPC’) for grant of bail in case FIR No. 3 of
2018, dated 19th May, 2018, under Sections 376, 511, 201,
.
34, 177 of the Indian Penal Code (hereinafter referred to as
‘IPC’), Section 4 of the Protection of Children from Sexual
Offences Act, 2012 (hereinafter referred to as ‘POCSO Act’)
and Section 3 (1) (w) (ii) of SC ST Act, registered at Police
2. to
Station Nahan, District Sirmaur, H.P.
For enlarging the petitioner on bail, it has been
canvassed that the petitioner has been implicated falsely in
present case without any allegation or evidence against him;
he has no role in commission of offence and there is change
in version of the statement of the complainant with regard
to manner in which alleged offence was committed. Further
that even if prosecution case is considered to be true, there
is nothing on record to infer that the petitioner has
committed the alleged offence and it is a case of no evidence
against the petitioner and, therefore, the rejection of bail by
the learned Sessions Judge vide order, dated 12 th July, 2018,
is unwarranted, whereas, keeping in view the entire facts
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3
and circumstances of the case, particularly, the statement of
prosecutrix, the petitioner deserves to be enlarged on bail.
.
3. Before dealing with the case in hand, it is apt to
refer to the principles laid down and factors culled out by
the apex Court, required to be taken into consideration at
the time of consideration of bail applications by the Courts.
4.
Some of the principles evolved in various
pronouncements of the apex Court are as under:
1. Grant of bail is general rule and putting a
person in jail or in a prison or in correction home
during trial is an exception and presumption ofinnocence, i.e. person is believed to be innocent
until found guilty is fundamental postulate ofcriminal jurisprudence. But, these principles
are not applicable in cases where there is
reverse onus and/or statutory presumption withregard to commission of offence. Such cases are
to be dealt with differently keeping in view
statutory presumption and reverse onus
provided under the relevant statute. (See
Dataram Singh versus State of Uttar Pradesh
and another, (2018) 3 SCC 22, para 1)22/09/2018 22:58:31 :::HCHP
4
2. While making a general statement of law that
the accused is innocent, till proved guilty, the
.
statutory provisions of relevant Act, like Section
29 of the POCSO Act, have to be taken into
consideration which provides for presumption as
to commission of any offence under Sections 3, 5,
7 and 9 of the Act. (See State of Bihar versus
Rajballav Prasad alias Rajballav Prasad Yadav
alias Rajballabh Yadav, (2017) 2 SCC 178, para
22)r
3. Each criminal case presents its own peculiar
factual scenario and, therefore, certain grounds
peculiar to a particular case may have to be
taken into account by the Court. The Court has
only to opine as to whether there is prima facie
case against the accused. The Court must not
undertake meticulous examination of the
evidence collected by the police and comment
upon the same. Such assessment of evidence
and premature comments are likely to deprive
the accused of a fair trial. (See Kanwar Singh
Meena versus State of Rajasthan and another,
(2012) 12 SCC 180)
4. A bail application is not to be entertained on the
basis of certain observations made in a different
context. There has to be application of mind and
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appreciation of the factual score and
understanding of the pronouncements in the
.
field. (See Virupakshappa Gouda and another
versus State of Karnataka and another, (2017) 5
SCC 406, para 14)
5. It has also to be kept in mind that for the
purpose of granting bail, the legislature has
used the words “reasonable grounds for
believing” instead of “the evidence” which means
the court dealing with the grant of bail can only
satisfy itself as to whether there is a genuine
case against the accused and that the
prosecution will be able to produce prima facie
evidence in support of the charge. It is not
expected, at this stage, to have the evidence
establishing the guilt of the accused beyond
reasonable doubt. (See Virupakshappa Gouda
and another versus State of Karnataka and
another, (2017) 5 SCC 406, para 16; CBI versus
Vijay Sai Reddy, (2013) 7 SCC 452)
6. The Courts are not oblivious of the fact that the
liberty is a priceless treasure for a human being.
It is founded on the bedrock of the constitutional
right and accentuated further on human rights
principle. It is basically a natural right. In fact,
some regard it as the grammar of life. No one
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would like to lose his liberty or barter it for all
the wealth of the world. People from centuries
.
have fought for liberty, for absence of liberty
causes sense of emptiness. The sanctity of
liberty is the fulcrum of any civilised society. It
is a cardinal value on which the civilisation
rests. It cannot be allowed to be paralysed and
immobilised. Deprivation of liberty of a person
has enormous impact on his mind as well as
body. A democratic body polity which is wedded
to rule of law, anxiously guards liberty. But, a
pregnant and significant one, the liberty of an
individual is not absolute. [The] society by its
collective wisdom through process of law can
withdraw the liberty that it has sanctioned to an
individual when an individual becomes a danger
to the collective and to the societal order. Accent
on individual liberty cannot be pyramided to
that extent which would bring chaos and
anarchy to a society. A society expects
responsibility and accountability from its
members, and it desires that the citizens should
obey the law, respecting it as a cherished social
norm. No individual can make an attempt to
create a concavity in the stem of social stream.
It is impermissible. Therefore, when an
individual behaves in a disharmonious manner
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ushering in the disorderly things which the
society disapproves, the legal consequences are
.
bound to follow. At that stage, the court has a
duty. It cannot abandon its sacrosanct
obligation and pass an order at its own whim or
caprice. It has to be guided by the established
parameters of law. (See Neeru Yadav versus
State of U.P., (2014) 6 SCC 508, para 16; Rakesh
Ranjan Yadav versus CBI, (2007) 1 SCC 70,
para 16; Masroor versus State of U.P., (2009) 14
SCC 286, para 15; Ash Mohammad versus Shiv
Raj Singh alias Lalla Babu and another, (2012)
9 SCC 446, paras 10 25; Chandrakeshwar
Prasad alias Chandu Babu versus State of Bihar
and another, (2016) 9 SCC 443 paras 10, 11)
7. Detailed examination of evidence and elaborate
documentation of merits of the case are to be
avoided. (See Puran versus Rambilas and
another, (2001) 6 SCC 338, para 8; Kalyan
Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC
528: (SCC pp. 53536, para 11); Vinod Bhandari
versus State of Madhya Pradesh, (2016) 15 SCC
389, para 13; Lt. Col. Prasad Shrikant Purohit
versus State of Maharashtra, (2018) 11 SCC 458,
para 2.) Consideration of details of the evidence
is not a relevant consideration. While it is
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necessary to consider the prima facie case, an
exhaustive exploration of the merits of the case
.
should be avoided by refraining from considering
the merits of material/evidence collected by the
prosecution. (See Anil Kumar Yadav versus
State (NCT of Delhi) and another, (2018) 12 SCC
129, para 15; and Criminal Appeal No. 1175 of
2018, titled The State of Orissa versus
Mahimananda Mishra, decided on 18th
September, 2018)
8. It is not necessary to go into the correctness or
otherwise of the allegations made against the
accused as this is a subject matter to be dealt
with by the trial Judge. (See Dataram Singh
versus State of Uttar Pradesh and another,
(2018) 3 SCC 22, para 16)
9. Where prima facie involvement of the accused is
apparent, material contradictions in the charge
sheet are required to be tested at the time of
trial and not at the time of consideration of
grant of bail. (See Lt. Col. Prasad Shrikant
Purohit versus State of Maharashtra, (2018) 11
SCC 458, para 28)
10. Probability or improbability of the prosecution
version has to be judged based on the material
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9
available to the court at the time when bail is
considered and not on the basis of discrepancies.
.
(See Anil Kumar Yadav versus State (NCT of
Delhi) and another, (2018) 12 SCC 129, para 21)
11. The Court granting bail should exercise its
discretion in a judicious manner and not as a
matter of course and reasons for grant of bail in
cases involving serious offences should be given.
(See Kalyan Chandra Sarkar v. Rajesh Ranjan
(2004) 7 SCC 528: (SCC pp. 53536, para 11);
Dipak Shubhashchandra Mehta versus Central
Bureau of Investigation and another, (2012) 4
SCC 134, para 32; Vinod Bhandari versus State
of Madhya Pradesh, (2016) 15 SCC 389, para13;
Lt. Col. Prasad Shrikant Purohit versus State of
Maharashtra, (2018) 11 SCC 458, para 29)
12. At the time of assigning reasons in order to
grant/refuse bail, there should not be discussion
of merits and demerits of the evidence. (See
State of Bihar versus Rajballav Prasad alias
Rajballav Prasad Yadav alias Rajballabh
Yadav, (2017) 2 SCC 178, para 15)
13. Giving reasons is different from discussing
evidence/merits and demerits. (See Puran versus
Rambilas and another, (2001) 6 SCC 338, para
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8; State of Bihar versus Rajballav Prasad alias
Rajballav Prasad Yadav alias Rajballabh
.
Yadav, (2017) 2 SCC 178, para 15)
14. Under Section 439 CrPC, the Sessions Court and
the High Court has concurrent jurisdiction to
grant bail. Therefore, an application filed before
the High Court under Section 439 CPC, after
rejection of an application filed before Sessions
Court under the said Section, is definitely a
successive application and is not a revision or
appeal against rejection of bail application by
the Sessions Court.
15. An accused has a right to make successive
applications for grant of bail, the court
entertaining such subsequent bail applications
has a duty to consider the reasons and grounds
on which the earlier bail applications were
rejected. In such cases, the court also has a duty
to record the fresh grounds which persuade it to
take a view different from the one taken in the
earlier applications. (See Lt. Col. Prasad
Shrikant Purohit versus State of Maharashtra,
(2018) 11 SCC 458, para 30)
16. The period of incarceration by itself would not
entitle the accused to be enlarged on bail. (See
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Anil Kumar Yadav versus State (NCT of Delhi)
and another, (2018) 12 SCC 129, para 24;
.
Gobarbhai Naranbhai Singala versus State of
Gujarat (2008) 3 SCC 775, para 22 and Ram
Govind Upadhyay versus Sudarshan Singh,
(2002) 3 SCC 598, para 9)
17. Filing of charge sheet establishes that after due
investigation the investigating agency, having
found materials, has placed the chargesheet for
trial of the accused persons. (See Virupakshappa
Gouda and another versus State of Karnataka
and another, (2017) 5 SCC 406, para 12)
5. The relevant factors to be kept in mind at the
time of consideration of bail applications are as follows:
(1) Satisfaction of the Court in support of the
charge as to whether there is any prima facieor reasonable ground to believe that the
accused had committed the offence;
(2) Nature and gravity of the accusation/ charge;
(3) Seriousness of the offence/crime and severity
of the punishment in the event of conviction;
(4) Nature and character of supportive evidence;
(5) Character, conduct, behaviour, means,
position and standing of the accused;
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(6) The Courts must evaluate the entire available
material against the accused very carefully;
circumstances which are peculiar to the
.
accused and the Court must also clearly
comprehend the exact role of the accused in
the case;
(7) The cases in which accused is implicated with
the help of sections 34 and 149 of the Indian
Penal Code, the court should consider with
even greater care and caution because over
implication in the cases is a matter of common
knowledge and concern;
(8) Position and status of accused with reference
to the victim and witnesses to assess the
impact that release of accused may make on
the prosecution witnesses and reasonable
apprehension of the witnesses being
influenced or tampered with or apprehension
of threat to the complainant/ witnesses and
possibility of obstructing the course of justice;
(9) The antecedents of the applicant including the
fact as to whether the accused has previously
undergone imprisonment on conviction by a
Court in respect of any cognizable offence;
(10) likelihood and possibility of the accused’s
likelihood to repeat similar or the other
offences;
(11) A reasonable possibility of the presence of the
accused not being secured at the trial and
danger of the accused absconding or fleeing
from justice;
(12) Impact of grant of bail on the society and
danger, of course, of justice being thwarted by
grant of bail affecting the larger interest of
the public or the State;
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(13) While considering the prayer for grant of
anticipatory bail, a balance has to be struck
.
between two factors namely, no prejudice
should be caused to the free, fair and full
investigation and there should be prevention
of harassment, humiliation and unjustified
detention of the accused;
(14) Impact of grant of anticipatory bail
particularly in cases of large magnitude
affecting a very large number of people;
(15) Whether the accusations have been made only
with the object of injuring or humiliating the
applicant by arresting him or her;
(16) Frivolity in prosecution should always be
considered and it is only the element of
genuineness that shall have to be considered
in the matter of grant of bail and in the event
of there being some doubt as to the
genuineness of the prosecution, in the normal
course of events, the accused is entitled to an
order of bail;
(17) No doubt, this list is not exhaustive. There are
no hard and fast rules regarding grant or
refusal of bail, each case has to be considered
on its own merits. The matter always calls for
judicious exercise of discretion by the Court.
(See Gurcharan Singh v. State (Delhi
Admn.) (1978) 1 SCC 118; Gurbaksh Singh
Sibbia versus State of Punjab, (1980) 2 SCC
565; Prahlad Singh Bhati v. State (NCT of
Delhi) (2001) 4 SCC 280; Puran v. Rambilas
(2001) 6 SCC 338; Ram Govind Upadhyay v.
Sudarshan Singh (2002) 3 SCC 598; Chaman
Lal versus State of U.P. and another, (2004) 7
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SCC 525; Kalyan Chandra Sarkar v. Rajesh
Ranjan (2004) 7 SCC 528, para 11); Jayendra
Saraswathi Swamigal v. State of T.N., (2005)
.
2 SCC 13, para 16); State of U.P. v.
Amarmani Tripathi, (2005) 8 SCC 21, para
18; Prashanta Kumar Sarkar versus Ashis
Chatterjee and another, (2010) 14 SCC 496;
Siddharam Satlingappa Mhetre versus State
of Maharashtra and others, (2011) 1 SCC 694;
Prakash Kadam versus Ramprasad
Vishwanath Gupta, (2011) 6 SCC 189;
Kanwar Singh Meena versus State of
Rajasthan and another, (2012) 12 SCC 180;
Anil Kumar Yadav versus State (NCT of
Delhi) and another, (2018) 12 SCC 129;
Criminal Appeal No. 1175 of 2018, titled The
State of Orissa versus Mahimananda Mishra,
decided on 18th September, 2018)
6. In present case, FIR against the petitioner has
been registered under Section 4 of POCSO Act. In Section 4
of POCSO Act, punishment for commission of offence under
Section 3 of the said Act has been provided and with respect
to commission of offence under Section 3, a presumption of
guilt has been provided under Section 29 of the said Act,
which reads as under:
“29. Presumption as to certain offences.
Where a person is prosecuted for
committing or abetting or attempting to
commit any offence under sections 3, 5, 7
and section 9 of this Act, the Special Court
shall presume, that such person has22/09/2018 22:58:31 :::HCHP
15committed or abetted or attempted to
commit the offence, as the case may be
unless the contrary is proved.”
.
7. Perusal of the status report filed and record
produced by the prosecution reveals that prosecutrix has
approached the Police Post Kachaa Tank, Nahan in the
midnight between 18th19th May, 2018, without lower inner
wear and salwar, but, wearing shirt only and covering her
lower body with dupatta (chunni) and narrated that after
taking her examination at Paonta Sahib, before returning to
Nahan, where she was residing in the house of a retired
Principal as maid, her friend Sunil met her, who took her
with one another boy on a bike and violated her person and
was asking her to spent the whole night with him, but, on
her refusal, he retained her salwar and bag and did not
return the same despite repeated requests, compelling her to
left the place without salwar covering her lower body with
dupatta (chunni) and to start for Nahan on foot and she also
signalled to stop the vehicles, but, no one stopped except a
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private bus in which she came to Kachaa Tank Police
Chowki, Nahan.
.
8. As per prosecution case, she was provided clothes
by the police and was taken to Women Police Station,
Nahan, where FIR was registered on 19 th May, 2018,
whereafter, she was taken to the Magistrate on 20 th May,
2018 and her statement under Section 164 CrPC was
recorded wherein she further disclosed that she
accompanied Sunil and another boy Ghodu on the bike and
boarded the truck alongwith them where a third boy,
namely Aman Sharma @ Ojas was also present and in the
presence of Ghoru and Aman Sharma @ Ojas, Sunil had
violated her and, thereafter, the two boys, i.e. Ghoru (second
boy) and Aman Sharma @ Ojas (third boy) had also tried to
violate her forcibly, who had also taken her lower inner wear
and salwar to compel her to submit herself to their lust
forcibly. However, with great difficulty, she jumped from
the truck to save her, but, accused persons kept her clothes
with them causing her to come to Nahan after covering her
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lower body with her dupatta, in a private bus and to
approach Police Post Kachaa Tank at Nahan, where police
.
had provided clothes to her and at that time, she was
perplexed and under duress causing disclosure of place of
occurrence as a forest near Shambhuwala whereas the
occurrence had taken place in the truck.
9.
In the meanwhile, police had also obtained CDR
of telephone number of accusedSunil supplied by the
prosecutrix and on the basis of call details, two persons,
namely Sachin and Aman @ Ojas were called by police for
investigation where Aman @ Ojas has disclosed the incident
in the same manner as has been disclosed by the prosecutrix
in her statement recorded under Section 164 CrPC and also
disclosed the registration number of the truck involved in
the incident and name of its driver (second boy – Ghoru) as
Deepak Singh, and Sachin, who has also been cited as a
witness in the challan, a driver of another truck, has stated
that on the day and at the time of incident, he was also
going towards Khanna whereto petitionerDeepak Singh had
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loaded his truck and on noticing petitionerDeepak Singh,
he had tried to contact the petitioner by signalling and
.
calling him to stop. But, petitionerDeepak Singh had not
stopped the truck. From his statement, the version of the
prosecution is, prima facie, corroborated.
10. Immediately after the incident, prosecutrix had
approached the police whereupon FIR was registered on 19 th
May, 2018, and soon thereafter, on 20th May, 2018,
statements of prosecutrix, under Sections 164 CrPC and 161
CrPC, were recorded. On the basis of CDR, police
interrogated Aman @ Ojas and Sachin whereafter Aman @
Ojas and Sachin were summoned and thereafter, petitioner
was apprehended from Khanna and was brought to Nahan,
where, after preliminary interrogation, he was arrested.
11. Plea of the learned counsel for the petitioner,
that there is no allegation against the petitioner and it is a
case of no evidence against him, is not in consonance with
the material on record. Veracity of the statements and
impact of disclosure of half truth by the prosecutrix, at the
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first instance, and revelation of the entire story before the
Magistrate is yet to be considered by the trial Judge.
.
However, prima facie, there is evidence on record connecting
the petitioner with the alleged offence under Section 376
IPC and Section 4 of POCSO Act read with Section 34 IPC
so as to facilitate the commission thereof and also with
12. to
regard to an attempt on his part to commit the same offence.
As per birth certificate of prosecutrix on record,
her date of birth is 25th October, 2001 and at the time of
incident, she was 16½ years old. As evident from her
statement, she accompanied Sunil and petitioner at her
own, but, keeping in view the evidence on record with regard
to her age, prima facie, it appears that her consent was
immaterial. So far as the alleged role of the petitioner is
concerned, he facilitated the violation of the person of the
prosecutrix by Sunil and thereafter, tried to compel her to
allow her violation by him and Aman @ Ojas also and for
pressurizing her, they kept her lower apparels, including
inner wear, with them and on refusal to accede to their
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demand, when prosecutrix jumped out of the truck, even
then, her clothes were not returned to her, rather, she was
.
left on the road in the dark night. As per material on record,
during investigation, at the instance of the petitioner,
sandals/chappals of prosecutrix were recovered from the
truck in which the alleged offence was committed and was
13. to
being driven by the petitioner.
Prosecutrix, aged about sixteen years, without
her lower apparels, was left alone on the Highway by the
petitioner and his companions during dark night hours.
Facing such a situation, the trauma suffered by the
prosecutrix was more than sufficient to get perplexed to tell
half truth to the police, at the first instance, as it was a case
where she herself had opted to accompany her friend Sunil,
without realizing the consequences thereof likely to be
followed on account of the mind set of persons accompanied
by her who consider her, being a female, an item for
enjoyment, nothing more than that. Such mind set of
petitioner and his coaccused, prima facie, is reflecting from
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their behaviour and manner in which they abandoned the
prosecutrix on her refusal to accede to their demand of
.
sexual favour perhaps thinking that in such circumstance,
prosecutrix may not dare to report the matter.
14. Further, during investigation, on verification,
name of the petitioner was found to be Rohan Singh and the
were not found to be correct.
r to
name and address, disclosed by him during interrogation,
15. Nothing has been brought to the notice of the
Court from the material on record or otherwise causing the
prosecutrix to implicate the petitioner falsely in the present
case. It is true that pretrial imprisonment cannot be used
as substitute to the punishment without scrutiny of the
evidence by the trial Court, but, at the same time, in a case
where a girl was abandoned in a situation, as discussed
above, grant of bail to the petitioner, at this stage, may also
have an adverse impact on the society. Petitioner has a
right to liberty under Article 21 of the Constitution of India,
but, the provision of reverse onus under Section 29 of the
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POCSO Act has also to be given due weightage. Balance has
to be maintained between the personal and societal interest.
.
16. Further, challan is pending for consideration of
charge before the trial Court and is stated to be listed on 24th
September, 2018. Petitioner had also approached learned
Sessions Judge for bail by way of application under Section
439 CrPC on 11th June, 2018, which was dismissed on 12 th
July, 2018 and immediately thereafter, present petition has
been filed on 25th July, 2018. Learned Sessions Judge has
considered the entire material on record and has declined to
release the petitioner on bail by passing a reasoned order. I
find no infirmity or perversity in the order passed by him.
From the date of rejection of the bail of the petitioner by
learned Sessions Judge till date, there is no change in
circumstances and no fresh ground persuading this Court to
take a view different from the view taken by the learned
Sessions Judge has been pointed out.
17. In view of above, considering cumulative effect of
entire facts and circumstances, without commenting upon
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the merits of the evidence and keeping in view the principles
laid down by the apex Court and other factors, like nature of
.
offence, manner in which it has been committed and its
impact on the society, petitioner is not entitled for bail, at
this stage. Hence, the petition is dismissed.
September 20, 2018
(rajni)
r to (Vivek Singh Thakur)
Judge
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