IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMP(M) No. 570 of 2018
Decided on June 19, 2018
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.
Dinender Morya … Petitioner
Versus
State of Himachal Pradesh Respondent
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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.
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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
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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 areinstances 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 inrespect 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 injail 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 thatmore 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 ofbail. 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 trialwhen called upon. The Courts owe more than verbal
respect to the principle that punishment beginsafter 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 totime, 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,20/06/2018 23:00:54 :::HCHP
8upon 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 anyimprisonment before conviction has a substantial
punitive content and it would be improper for any
court to refuse bail as a mark of disapproval offormer 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 ataste 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 aneconomic offence of formidable magnitude, while
dealing with the issue of grant of bail, had observedthat deprivation of liberty must be considered a
punishment unless it is required to ensure that anaccused 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 that20/06/2018 23:00:54 :::HCHP
9any 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 wasenunciated that since the jurisdiction to grant bail
to an accused pending trial or in appeal against
conviction is discretionary in nature, it has to beexercised with care and caution by balancing the
valuable right of liberty of an individual and the
interest of the society in general. It was elucidatedthat 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, isregulated to a large extent by the facts and
circumstances of each particular case. That
detention in custody of under-trial prisoners for anindefinite 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,
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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
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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 soas 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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