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Harish Kumar vs State Of Himachal Pradesh on 18 March, 2020

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.199 of 2020
Decided on: 18.3.2020

.

Harish 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. Sandeep Chauhan, Advocate.

For the Respondent : Mr. Sudhir Bhatnagar, and Mr. Arvind
Sharma, Additional Advocates General,
for the State.

Sandeep Sharma, Judge (oral):

Sequel to order(s) dated 3.2.2020 and 26.2.2020, whereby

petitioner was ordered to be enlarged on interim bail in case FIR No. 7 of

2020 dated 28.1.2020 under Section 376 of IPC and Section 4 of POCSO

Act, registered at P.S. Kasauli, District Solan, H.P., ASI Rajender Kumar, P.S.

Kasauli, has come present alongwith records. Mr. Sudhir Bhatnagar,

learned Additional Advocate General, has also placed on record status

report prepared on the basis of investigation carried out by the

Investigating Agency. Record perused and returned.

2. Record/status report made available to this Court reveals

that on 28.1.2020, victim-prosecutrix (name withheld) got her statement

recorded under Section 154 Cr.PC at Police Station Kasauli, District Solan,

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

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2

H.P., stating therein that in May, 2019, she came to Village Gunai to meet

her Aunt (Bua), whereafter in October, 2019, present bail petitioner, who

.

also hails from Village Gunai came in her contact. She stated that after

her aforesaid meeting, both she and the bail petitioner kept on meeting

each other frequently. She stated that bail petitioner proposed her for

marriage and such proposal was accepted by her but at that time, she

did not know that the bail petitioner is in her relations. She stated that one

day when she was talking with the bail petitioner, his brother namely

Praveen Kumar came to know about their relation and took her phone,

whereafter bail petitioner again provided her phone. She stated that she

and the bail petitioner used to meet on the way from Gunai to Villiage

Jangeshu and during this period, bail petitioner on the pretext of marriage

sexually assaulted her against her wishes. She alleged that she was

sexually assaulted thrice, as a consequence of which, she became

pregnant. She alleged that when factum with regard to her pregnancy

was brought to the notice of the bail petitioner, he persuaded her to

abort the pregnancy. She stated that she and the bail petitioner

requested their respective parents to solemnize marriage, but none

agreed. She alleged that on 27.2.2020, she on the askance of the sister of

the bail petitioner went to his house to solemnize marriage, but they all

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sent her back to her bua’s house at Gunai. In the aforesaid background,

FIR detailed herein above, came to be lodged against the bail petitioner.

.

3. Mr. Sudhir Bhatnagar, learned Additional Advocate

General, on instructions while fairly admitting that investigation in the case

is complete and nothing remains to be recovered from him, contended

that keeping in view the gravity of offence alleged to have been

committed by the bail petitioner, his application for grant of bail may be

rejected. He further contended that though there is ample evidence

available on record suggestive of the fact that bail petitioner taking

undue advantage of innocence and minority of victim-prosecutrix

sexually assaulted her against her wishes, but even otherwise consent, if

any, of victim-prosecutrix is immaterial being minor and as such, it would

not be in the interest of justice to release the bail petitioner on bail at this

stage.

4. Having heard learned counsel for the parties and perused

material available on record, especially statement of victim-prosecutrix

recorded under Section 154 Cr.PC., this Court finds that victim-prosecutrix

is 17 ½ years old and prior to the alleged incident, she was in constant

touch with the bail petitioner. As per own statement of victim-prosecutrix,

both she and the bail petitioner wanted to solemnize marriage, but their

such proposal was not acceptable to their families. In the statement

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given to the police under Section 154 CrPC, victim-prosecutrix has herself

admitted that since May, 2019, she had been frequently meeting and

.

talking with bail petitioner. Though allegation of victim-prosecutrix is that

bail petitioner sexually assaulted her against her wishes on the pretext of

marriage, but as per own statement, bail petitioner never refused to

solemnize marriage with her, rather kept on meeting her even after refusal

of the proposal of marriage by both the families. Most importantly,

perusal of statement of victim-prosecutrix recorded under Section 164

cr.PC nowhere rsuggests that bail petitioner committed offence

punishable under Section 376 IPC. In her statement recorded under

Section 164 Cr.PC., victim-prosecutrix stated that in the year, 2019, she

had gone to her Bua’s place, where she met the bail petitioner. She

stated that bail petitioner had come there to take her as she was missing

child of her sister. She stated that her family members, who had seen her

with the bail petitioner, misunderstood her relationship with the bail

petitioner. In the statement recorded under Section 164 Cr.PC, she

nowhere stated something specific with regard to commission of offence ,

if any, punishable under Section 376 IPC against the bail petitioner.

5. If the statements of victim-prosecutrix made under Sections

154 and 164 Cr.PC, are read in its entirety juxtaposing each other, there

are material contradictions and material inconsistencies. Also, there

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appears to be no force in the allegation that bail petitioner gave some

medicine to the victim-prosecutrix for aborting the child, because

.

medicine allegedly given by the bail petitioner to the victim-prosecutrix

was found to be contraceptive. No doubt at the time of alleged

commission of offence, age of victim-prosecutrix was 17 years old, but

having taken note of her conduct, which is apparent from her statements

recorded under Sections 154 and 164 Cr.PC, it is difficult to conclude that

she was incapable of understanding the consequences of her being in

the company of the bail petitioner, with whom otherwise she wanted to

solemnize marriage.

6. Though aforesaid aspects of the matter are to be

considered and decided by the court below on the basis of totality of

evidence collected on record by the Investigating Agency, but having

noticed aforesaid aspects of the matter, this Court sees no reason to

curtail freedom of the petitioner indefinitely. Leaving everything aside,

guilt if any of the bail petitioner is yet to be established on record by the

Investigating Agency by leading cogent and convincing evidence and

as such, his freedom cannot be curtailed for an indefinite period during

trial. Apprehension expressed by the learned Additional Advocate

General that in the event of his being enlarged on bail, he may flee from

justice, can be best met by putting the bail petitioner to stringent

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conditions as has been fairly stated by the learned counsel for the

petitioner.

.

7. 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 a fundamental postulate of criminal

jurisprudence is the presumption of innocence, meaning thereby that a

person is believed to be innocent until found guilty. Hon’ble Apex Court

further held that while considering prayer for grant of bail, 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. Hon’ble Apex

Court has further held that if an accused is not hiding from the

investigating officer or is hiding due to some genuine and expressed fear

of being victimized, it would be a factor that a judge would need to

consider in an appropriate case. The relevant paras of the aforesaid

judgment are reproduced 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

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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 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.

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8. 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 accused,

circumstances which are peculiar to the accused involved in that crime.

9. The Hon’ble Apex Court in Sanjay Chandra versus Central

Bureau of Investigation (2012)1 Supreme Court Cases 49; 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, 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

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bail to an unconvicted person for the propose of giving him a
taste of imprisonment as a lesson.”

10. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC

.

218, The Hon’ble Apex Court has held as under:-

” This Court in Sanjay Chandra v. CBI, 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 or preventive.

This Court sounded a caveat 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 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 to 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 ad 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 the

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.”

11. 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;

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(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.

.

12. Consequently, in view of the above, order dated 3.2.2020,

passed by this Court, is made absolute, subject to the 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
rperson 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

violates 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.

18th March, 2020 (Sandeep Sharma),
manjit Judge

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