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Devinder Kumar vs State Of Himachal Pradesh on 17 April, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 331 of 2018
Date of Decision No.17.04.2018

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Devinder Kumar …. Petitioner
Versus

State of Himachal Pradesh …..Respondent
Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1

For the Petitioner: Mr. N.S.Chandel, Advocate.

For the Respondent: Mr. Dinesh Thakur, Additional Advocate
General, and Mr. Vikrant Chandel,

Deputy Advocate General.
__

Sandeep Sharma, Judge (oral):

By way of instant bail petition filed under Section 439

of the Code of Criminal Procedure, prayer has been made for grant

of regular bail in case FIR No.173 of 2016, dated 26.11.2016

under Sections 458, 376, 323, 506 of IPC, registered at police

Station, Gohar, District Mandi, Himachal Pradesh.

2. Sequel to order dated 27.3.2018, ASI Narayan Lal,

police Station, Gohar, District Mandi, has come present in Court

alongwith the record of the case. Record perused and returned.

3. Mr. Vikrant Chandel, learned Deputy Advocate

General, has also placed on record status report prepared on the

basis of the investigation carried out by the investigating agency,

1
Whether the reporters of the local papers may be allowed to see the judgment?

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perusal whereof, suggests that on 26.11.2016 complainant

( for short ‘prosecutrix’) lodged a complaint, alleging therein that

on 24.11.2016, her husband had gone to attend some marriage.

.

Allegedly, when prosecutrix at 10:00 PM was stitching clothes in

her room, her three years old son and 13 years old niece were

sleeping on the bed, bail petitioner, who reside in neighbourhood

entered the room and bolted the same from inside. Allegedly, bail

petitioner gagged the mouth of prosecutrix and thereafter sexually

assaulted her. During aforesaid alleged incident, husband of the

prosecutrix come back from the marriage and knocked the door.

Bail petitioner after having heard the knock on the door, hided

himself below the bed. Thereafter, allegedly bail petitioner while

leaving the room of the prosecutrix not only extended threats to

the prosecutrix and her husband, but also gave beatings to both of

them. On the basis of aforesaid report, formal FIR, as detailed

hereinabove, came to be lodged against the bail petitioner and he

was taken into custody on 27.11.2016 and since then, he is

behind the bars.

4. Mr. N.S.Chandel, learned counsel representing the

bail petitioner, while referring to the record/status report,

vehemently argued that bare perusal of the story put forth by the

prosecution itself suggest that the prosecutrix was known to the

bail petitioner and they had been meeting with each other in past

also. Mr. Chandel, further contended that otherwise also, version

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put forth by the prosecutrix is unbelievable and cannot be relied

upon, because admittedly as per her own version at the time of

alleged incident, her three years old son as well as 13 years old

.

niece were present in room and as such, it is not understood that

in case the bail petitioner made an attempt to sexually assault the

prosecutrix against her wishes, what prevented her to raise hue

and cry. Referring to the statement made by the prosecutrix under

Section 164 of the Code of Criminal Procedure, Mr. Chandel,

contended that it clearly emerge from the reading of the same that

the prosecutrix was a consenting party to the alleged incident and

once factum with regard to illegitimate relationship with the bail

petitioner came to the fore, she lodged false complaint against the

bail petitioner. Mr. Chandel, further contended that the

investigation in the case is complete and nothing is required to be

recovered from the bail petitioner and he is behind the bars for

almost 1 ½ years for no fault of him and as such, he deserve to be

enlarged on bail. He further contended that the bail petitioner is a

local resident of the area and there is no likelihood of his fleeing

from justice and he shall make himself available for investigation

and trial as and when called by the investigating agency.

5. Mr. Vikrant Chandel, learned Deputy Advocate

General, while opposing the aforesaid prayer having been made by

learned counsel for the bail petitioner, contended that it is quite

apparent from the record that on 24.11.2016 bail petitioner taking

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undue advantage of the absence of husband of the prosecutrix not

only extended threats to her, but sexually assaulted her against

her wishes and as such, he does not deserve any leniency, rather

.

needs to be dealt with severely. While referring to the medical

evidence adduced on record, learned Deputy Advocate General,

contended that it stands duly established on record that on the

alleged date of incident, bail petitioner sexually assaulted the

prosecutrix against her wishes and while leaving the site of

occurrence, he also gave beatings to the husband of the

prosecutrix. While fairly admitting that the investigation in the

case is complete and nothing is required to be recovered from the

bail petitioner, Mr. Chandel, learned Deputy Advocate General,

contended that in the event of petitioner’s being enlarged on bail,

there is every possibility of his fleeing from justice and tempering

with the evidence and as such, his bail petition may be rejected at

this stage.

6. I have heard learned counsel representing the parties

and carefully gone through the record made available.

7. As per prosecutrix, bail petitioner taking undue

advantage of the absence of her husband, entered into her room

on the alleged date of incident at 10:00 PM and thereafter sexually

assaulted her. After having perused the material available on

record, this Court finds force in the arguments of learned counsel

representing the bail petitioner that story put forth by the

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prosecutrix does not appears to be probable because at the time of

alleged incident apart from minor son of prosecutrix, 13 years old

niece was also present there. It is none of the case of the

.

prosecution that minor child and 13 years old niece were sitting in

some other room, rather categorical case of the prosecutrix is that

at the time of alleged incident, her minor son and 13 years old

niece were sleeping on the bed in that room. It is also not

understood that when bail petitioner entered into the room of the

prosecutrix and bolted the same, what prevented the prosecutrix

to raise hue and cry, if bail petitioner was not of her prior

acquaintance as is alleged in the complaint. Version put forth by

the prosecution that her mouth was gagged and thereafter she was

sexually assaulted also does not appear to be trustworthy,

especially when 13 years old niece of her was present in the room.

As per report of the Doctor, who attended upon the prosecutrix at

the time of her medical examination, no sign of violence was

observed on the person of the prosecutrix. Interestingly, there is

another aspect of the matter that as per own statement of the

prosecutrix, bail petitioner after having heard knock on the door,

hided himself below the bed. There is nothing in the statement of

the prosecutrix, from where it can be inferred that she

immediately after opening the door disclosed to her husband that

bail petitioner, who forcibly committed sexual intercourse with her

is hiding below the bed. Though, aforesaid aspects of the matter

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are to be considered and decided by the Court below on the basis

of the evidence collected on record by the prosecution, but this

Court having perused the record , sees no reason to let the bail

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petitioner incarcerate in jail for indefinite period, especially when

he has already suffered for more than 1 ½ years Otherwise also,

by now it is well settled that freedom of an individual is of utmost

importance and same cannot be curtailed merely on the basis of

suspicion. Till the time guilt of accused is not proved, in

accordance with law, he is deemed to be innocent. In the case at

hand, the guilt, if any, of the bail petitioners is yet to be proved, in

accordance with law, and as such, no fruitful purpose would be

served in case the bail petitioner is allowed to remain behind the

bars during the pendency of the present case, rather great

prejudice would be caused to him in case his freedom is curtailed

for indefinite period.

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 freedom of an

individual is of utmost importance and same cannot be curtailed

merely on the basis of suspicion. Hon’ble Apex Court has further

held that till the time guilt of accused is not proved, in accordance

with law, he is deemed to be innocent. The relevant paras No.2 to

5 of the judgment are reproduced as under:-

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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.

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 first-time offender or has been

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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 social and other problems as
noticed by this Court in In Re-Inhuman Conditions
in 1382 Prisons.

9. 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

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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,
r 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.”

10. 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

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conviction will entail, character of the accused, circumstances

which are peculiar to the accused involved in that crime.

.

11. The Apex Court in Prasanta Kumar Sarkar versus

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;

(viii) reasonable apprehension of the witnesses being
influenced; and

(ix) danger, of course, of justice being thwarted by grant of
bail.

12. In view of above, the petition is allowed and the

petitioner is ordered to be enlarged on bail in aforesaid FIR,

subject to his furnishing personal bonds in the sum of Rs. One lac

with one local surety in the like amount to the satisfaction of

concerned Chief Judicial Magistrate, 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

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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

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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 him/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.

13. It is clarified that if the petitioner misuses the liberty

or violate 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 petition stands accordingly disposed of.

Copy dasti.

(Sandeep Sharma),
Judge
17th April, 2018

(shankar)

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