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Ishant Kumar vs State Of Himachal Pradesh on 9 July, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CrMP(M) No. 734 of 2018
Decided on July 9, 2018
__

.
Ishant 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. Vinay Sharma, Advocate.
For the respondent : Mr. S.C. Sharma and Mr. Dinesh
Thakur, Addl. AG’s with Mr. Amit
Kumar, DAG.
r ASI Subhash Kumar, PS Chamba

(Sadar).
__
Sandeep Sharma, Judge (oral):

By way of instant petition filed under Section 439

CrPC, bail petitioner prayed for grant of regular bail in respect of

FIR No. 138/18 dated 7.6.2018 under Sections 376 and 506 IPC

and Section 3(1)(w) (i) of the Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Act, 1989, registered at Police

Station, Sadar, District Chamba, Himachal Pradesh.

2. On 13.6.2018, bail petitioner surrendered before this Court

and was taken into custody, however this court subsequently

ordered him to be released on bail, subject to his furnishing

personal bonds in the sum of ` 25,000/- to the satisfaction of the

learned Additional Registrar (Judicial).

1

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

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2

3. Sequel to orders dated 13.6.2018 and 29.6.2018, ASI

Subhash Kumar has come present with the record. Mr. Dinesh

Thakur, 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.

4. Mr. Dinesh Thakur, learned Additional Advocate General, on

instructions of the Investigating Officer, who is present in Court,

fairly states that pursuant to directions contained in orders dated

13.6.2018 and 29.6.2018, bail petitioner has joined the

investigation and is fully cooperating.

5. Close scrutiny of record/status report reveals that FIR

detailed herein above came to be lodged against bail petitioner at

the behest of the complainant-prosecutrix, who is 30 years old.

She alleged that she was engaged with the bail petitioner,

whereafter marriage was to be solemnized on 20.7.2018. Allegedly,

after engagement, bail petitioner and complainant-prosecutrix

started meeting each other and on 20.11.2017, bail petitioner took

complainant-prosecutrix to Hotel Ashiana Regency at Julahkhri,

Chamba, where he sexually assaulted the complainant-prosecutrix

against her wishes. Allegedly, bail petitioner sexually assaulted the

complainant-prosecutrix on various occasions against her wishes.

However, on 4.6.2018, bail petitioner refused to marry

complainant-prosecutrix, as a consequence of which, FIR

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mentioned herein above came to be lodged against the bail

petitioner.

6. Mr. Vinay Sharma, learned counsel representing the bail

.

petitioner, while referring to the record/status report vehemently

argued that it stands duly proved on record that complainant-

prosecutrix, who is thirty years old and had friendly relations with

the bail petitioner and they have been meeting each other for a

quite considerable time. Mr. Sharma, further contended that as

per own statement given by complainant-prosecutrix, she was

never compelled/forced by bail petitioner to have sexual relations

with bail petitioner, rather, she after having developed intimate

relations with the bail petitioner, willfully joined the company of

bail petitioner. Mr. Sharma, further submitted that it is true that

bail petitioner had agreed for marriage but since factum with

regard to earlier marriage of complainant-prosecutrix with a

person namely Munish came into his knowledge, he refused to

marry her and as such, no case, if any, is made out against the

bail petitioner under Sections 376 and 506 IPC and Section 3(1)(w)

(i) of the Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989 and he deserves to be enlarged on bail.

Lastly, Mr. Sharma contended that since bail petitioner has

already joined investigation, no fruitful purpose would be served in

case he is sent behind the bars because investigation is almost

complete and nothing is required to be recovered from him. Mr.

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Sharma, learned counsel representing the bail petitioner further

contended that since bail petitioner is a government employee,

there is no likelihood of his fleeing from justice.

.

7. Mr. Dinesh Thakur, learned Additional Advocate General,

while fairly acknowledging the fact that bail petitioner has joined

the investigation and is fully cooperating, opposed the prayer

made on behalf of the bail petitioner, for grant of bail and

contended that keeping in view the gravity of offence allegedly

committed by the bail petitioner, who is a policeman, he does not

deserve to be enlarged on bail, rather, needs to be dealt with

severely. Mr. Thakur, further submitted that though in the

investigation conducted pursuant to order passed by this Court on

29.6.2018, it has emerged that complainant-prosecutrix is already

married in the year 2015 to one Shri Munish, but that fact

definitely does not give any licence to the bail petitioner to sexually

assault complainant-prosecutrix, against her wishes, as such,

prayer made in the instant petition deserves to be rejected

outrightly.

8. I have heard the learned counsel for the parties and gone

through the record carefully.

9. Having carefully perused the material available on record, it

is quite apparent that bail petitioner and complainant-prosecutrix

had been meeting each other frequently after their engagement on

19.10.2017. It is also not in dispute that after alleged date of

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incident, i.e. 20.11.2017, complainant-prosecutrix kept meeting

bail petitioner till 4.6.2018, on which date, FIR detailed herein

above came to be lodged against the bail petitioner.

.

10. As has been noticed herein above, complainant-prosecutrix

is a mature lady and it is not understood, that in case on

20.11.2017, she was sexually assaulted against her wishes, what

prevented her from lodging report, if any, either with her parents,

Gram Panchayat or police. In the case at hand, she kept mum for

almost nine months, whereafter FIR came to be lodged against bail

petitioner. In rthe statement given to police, complainant-

prosecutrix narrated incident dated 20.11.2017, but allegedly that

incident took place at Ashiana Regency, which is not a residential

hotel, rather a restaurant, as such, story put forth by

complainant-prosecutrix does not appear to be probable. Apart

from above, it has also come in the investigation that complainant-

prosecutrix is a married woman and as such, there appears to be

some force in the argument of the learned counsel representing

the bail petitioner that since factum with regard to prior marriage

of complainant-prosecutrix came into his notice, he refused to

marry her.

11. Though, aforesaid aspects of the matter are to be considered

and decided by the learned trial Court on the basis of evidence

adduced on record by the prosecution but this court taking note of

the facts and circumstances narrated herein above coupled with

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the fact that bail petitioner has already joined the investigation

and is fully cooperating, sees no reason to allow prayer of

investigating agency for custodial interrogation of the bail

.

petitioner. Bail petitioner is a government employee and as such,

there is no likelihood of his fleeing from justice, rather, he shall be

available for investigation and trial, as and when required by the

investigating agency. Moreover, this court can not lose sight of the

fact that guilt, if any, of the bail petitioner is yet to be proved in

accordance with law, as such, it may not be just and fair to curtail

his freedom for indefinite period. By now, it is settled law that

freedom of an individual is of utmost importance and same can

not be curtailed for indefinite period, especially when guilt is yet to

be proved.

12. 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/her guilt

is yet to be 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

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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 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

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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.”

13. By now it is well settled that gravity alone cannot be a

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; 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.

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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 bail to an

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

14. 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

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.

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15. 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.

16. In view of above, bail petitioner has carved out a case for

grant of bail and as such, present petition is allowed. Order dated

13.6.2018 is made absolute subject to petitioner furnishing fresh

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

Investigating Officer, besides 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 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

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(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 her.

17. 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.

18. 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 petition alone.

The petition stands accordingly disposed of.

Copy dasti.

(Sandeep Sharma)
r Judge

July 9, 2018
(vikrant)

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