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Dinender Morya vs State Of Himachal Pradesh on 19 June, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CrMP(M) No. 570 of 2018
Decided on June 19, 2018
__

.
Dinender Morya … 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. Mohan Sharma, Advocate.

For the respondent : Mr. S.C. Sharma and Mr. Dinesh
Thakur, Addl. AG’s with Mr. Amit
Kumar, DAG.

ASI Dev Raj, Police Station, West,

Shimla.
__
Sandeep Sharma, Judge (oral):

Bail petitioner, Dinender Morya, who is behind the

bars since 22.4.2018, has approached this Court by way of

instant bail petition filed under Section 439 CrPC, seeking

therein regular bail in case FIR No. 94/18 dated 18.4.2018

under Sections 323, 452, 354, 376 and 506 IPC, registered at

Police Station West, Shimla, District Shimla, Himachal Pradesh.

2. Sequel to orders dated 24.5.2018 and 29.5.2018,

ASI Dev Raj, has come present with the record. Mr. S.C.

Sharma, learned Additional Advocate General has also placed

on record status report, prepared on the basis of investigation
1
Whether the reporters of the local papers may be allowed to see the judgment?

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carried out by the investigating agency. Record perused and

returned.

3. Close scrutiny of status report suggests that on

.

18.4.2018, complainant-prosecutrix filed a complaint to the

Station House Officer, Police Station West, Shimla alleging

therein that she was sexually assaulted by the bail petitioner

during April, 2017 to August, 2017. As per complainant, in

April, 2017, bail petitioner who used to come to her house for

giving tuitions to her children, recorded a video of the

complainant-prosecutrix while taking bath and on the basis of

such recording started blackmailing her and sexually assaulted

her during April, 2017 to August, 2017. It is further alleged by

complainant-prosecutrix that on 17.4.2018, bail petitioner

forcibly entered her house and made an attempt to outrage her

modesty, whereafter, FIR detailed herein above came to be

lodged against the bail petitioner at the behest of complainant-

prosecutrix.

4. Mr. Mohan Sharma, learned counsel representing

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

vehemently argued that no case under Section 376 IPC is made

out against his client because it is quite apparent from the

averments made in the complaint that complainant-prosecutrix

was known to the bail petitioner for quite considerable time and

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during this period, they had developed intimate relations. He

further stated that there is no explanation rendered on record

by complainant-prosecutrix for not lodging complaint in April,

.

2017 itself, when allegedly bail petitioner recorded the video.

Lastly, Mr. Mohan Sharma, Advocate contended that bail

petitioner is behind bars since 22.4.2018, investigation in the

case is complete and nothing is required to be recovered from

the bail petitioner, as such, bail petitioner deserves to be

enlarged on bail.

5. Mr.
r S.C.

Sharma, learned Additional

General , vehemently opposed the prayer having been made by
Advocate

the learned counsel representing the bail petitioner and

contended that keeping in view the gravity of the offence

allegedly committed by bail petitioner, he does not deserve to be

shown any lenience, rather bail petitioner deserves to be dealt

with severely. While fairly acknowledging that investigation is

almost complete and nothing is required to be recovered from

the bail petitioner, learned Additional Advocate General

contended that since bail petitioner hails from the State of

Madhya Pradesh, there is every likelihood of his fleeing from

justice, in the event of his being enlarged on bail and as such,

bail petition deserves to be rejected.

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6. I have heard the learned counsel for the parties and

gone through the record carefully.

7. It is apparent from the record/status report that

.

allegation against bail petitioner pertains to April, 2017 and

there is no explanation rendered on record by the complainant

for not lodging complaint at the first instance in April, 2017

itself. Allegedly, bail petitioner videographed complainant-

prosecutrix while she was taking bath, in April, 2017 and

factum with regard thereto came into notice of complainant-

prosecutrix in April, 2017 itself, but it is not understood that

what prevented complainant-prosecutrix from lodging complaint

against bail petitioner at the first opportunity. Complainant-

prosecutrix is a married woman having two children and it can

not be accepted that she was under constant threats from the

bail petitioner.

8. Having carefully perused the complaint having been

lodged by complainant-prosecutrix, there appears to be

considerable force in the arguments of learned counsel

representing the bail petitioner that bail petitioner and

complainant-prosecutrix were known to each other for quite

considerable time and during this period, they had been

meeting frequently. On the last date of hearing, i.e. 29.5.2018,

this Court was informed that mobile phone of the bail petitioner

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containing the video allegedly recorded by him has been sent to

Forensic Science Laboratory, Junga and report is awaited. Now,

today, during the course of proceedings, report of Forensic

.

Science Laboratory, Junga, qua mobile of bail petitioner has

been made available, perusal whereof clearly suggests that no

video relevant to the case, could be found in the data extracted

from the mobile phone of bail petitioner. Though, aforesaid

aspects of the matter are to be considered and decided by the

learned trial Court, on the basis of evidence led on record by

investigating agency, but this Court having taken note of the

fact that investigation in the case is complete and nothing is

required to be recovered from the bail petitioner, sees no reason

to let bail petitioner incarcerate in jail for indefinite period.

9. Apprehension expressed by the learned Additional

Advocate General that bail petitioner hails from Madhya

Pradesh, can be met by putting bail petitioner to stringent

conditions, as has been fairly stated by the learned counsel

representing the bail petitioner. This court also cannot lose

sight of the fact that guilt, if any, of the bail petitioner is yet to

be proved by investigating agency by leading cogent and

convincing evidence on record and by now it is settled law that

until guilt is proved, one is deemed to be innocent.

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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 can

.

not 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

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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

Investigation (2012)1 Supreme Court Cases 49; 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,

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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. In Manoranjana Sinh alias Gupta versus CBI, (2017)

5 SCC 218, Hon’ble Apex Court has held as under:

“This Court in Sanjay Chandra vs. Central Bureau
of Investigation (2012) 1 SCC 40, also involving an

economic offence of formidable magnitude, while
dealing with the issue of grant of bail, had observed

that deprivation of liberty must be considered a
punishment unless it is required to ensure that an

accused person would stand his trial when called
upon and that 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 found guilty. It was
underlined that the object of bail is neither punitive
nor preventive. This Court sounded a caveat that

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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 a conduct whether an accused has

been convicted for it or not or to refuse bail to an
unconvicted person for the purpose of giving him a
taste of imprisonment as a lesson. It was

enunciated that since the jurisdiction to grant bail
to an accused pending trial or in appeal against
conviction is discretionary in nature, it has to be

exercised with care and caution by balancing the
valuable right of liberty of an individual and the
interest of the society in general. It was elucidated

that the seriousness of the charge, is no doubt one

of the relevant considerations while examining the
application of bail but it was not only the test or the
factor and that grant or denial of such privilege, is

regulated to a large extent by the facts and
circumstances of each particular case. That
detention in custody of under-trial prisoners for an

indefinite period would amount to violation of Article

21 of the Constitution was highlighted.”

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 also, normal rule is of bail

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and not jail. Apart from above, 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.

14. 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;

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

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

15. In view of above, present bail petition is allowed.

Petitioner is ordered to be enlarged on bail subject to his

furnishing bail bonds in the sum of Rs.1,00,000/- (Rs. One Lakh)

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

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learned Chief Judicial Magistrate, Shimla, besides 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 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 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.

(e)

He shall surrender passport, if any, held by him.

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

or violates any of the conditions imposed upon him, the

investigating agency shall be free to move this Court for

cancellation of the 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 instant petition alone.

The petition stand accordingly disposed of.

Copy dasti.

(Sandeep Sharma)
Judge
June 19, 2018
(vikrant)

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