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Kamal Walia vs State Of Himachal Pradesh on 27 April, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.449 of 2018
Decided on: 27.4.2018

.

Kamal Walia ………..Petitioner
Versus
State of Himachal Pradesh ……….Respondent

Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioner : Mr. Vinod Chauhan, Advocate.

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

Sandeep Sharma, Judge (oral):

Bail petitioner namely Kamal Walia, who is behind bars since

23.12.2017, has approached this Court by way of instant proceedings,

filed under Section 439 of Cr.PC, seeking therein his regular bail in case FIR

No. 523/17 dated 21.12.2017, under Sections 376 and 506 of IPC and

Section 4 of POCSO Act, registered at PS Paonta Sahib, District Sirmaur,

HP.

2. Sequel to order dated 16.4.2018 passed by this Court, ASI

Vidya Sagar, P.P Rajban, P.S. Paonta Sahib, District Sirmaur, HP, has come

present in Court alongwith record of the case. Record perused and

returned. Mr. Dinesh Thakur, learned Additional Advocate General, has

also placed on record status report prepared on the basis of the

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

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2

investigation carried out by the investigating agency, perusal whereof

suggests that complainant namely Mitra Devi lodged a complaint with

.

police on 17.4.2018, stating therein that her daughter (herein after referred

to as “the prosecutrix”) was studying in class-9 in High School, Sataun, in

the year, 2016, but since bail petitioner used to tease her, she left her

studies and went to sister’s place at Karnal. Complainant further alleged

that on 7.4.2018, prosecutrix, who was reluctant to come back from

Karnal, disclosed to her that bail petitioner not only teased her but also

developed physical relations with her against her wishes on the pretext of

marriage. Complainant also reported to the police that she had brought

factum with regard to the aforesaid behavior of the bail petitioner to his

mother namely Shanti Devi, who instead of making her son understand,

proposed for the marriage of his son with the prosecutrix. Complainant

further alleged that her daughter being minor is/was not enough mature

and fell into trap of bail petitioner, who taking undue advantage of her

innocence spoiled her life. On the basis of aforesaid complaint, formal

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

petitioner and since, 23.12.2017, bail petitioner is behind the bars.

3. Mr. Vinod Chauhan, Advocate, representing the bail

petitioner while referring to the status report/record, vehemently

contended that no case, if any, is made out against the bail petitioner

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under Section 376 of IPC, and as such, bail petitioner deserves to be

enlarged on bail. He further contended that allegation pertains to year,

.

2016, whereas complaint in this regard came to be lodged in December,

2017 and no explanation, if any, has been rendered on this count, by the

complainant. Mr. Chauhan, further contended that bare perusal of

complaint having been filed by the complainant itself suggests that

mother of the prosecutrix was in know of things, rather families of both bail

petitioner and prosecutrix had agreed for marriage between bail

petitioner and prosecutrix.

r While referring to the medical evidence

adduced on record by the Investigating Agency, Mr. Chauhan

contended that no definite evidence suggestive of the fact that

prosecutrix was subjected to sexual inter-course by the bail petitioner, has

come to the fore and as such, bail petitioner, who is a young boy of 21

years, deserves to be enlarged on bail. Mr. Chauhan, further contended

that as per instructions imparted to him, parties have resolved to settle

their dispute inter-se them amicably. He further stated that complainant

as well prosecutrix have come in the court to state that FIR was lodged

due to mis-understanding and they have no objection, in case, FIR lodged

against the bail petitioner at the behest of the complainant, is quashed

and set-aside. He further contended that families of the bail petitioner

and prosecutrix have agreed in principal to solemnize marriage of the bail

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petitioner with the prosecutrix. Mr. Chauhan, further contended that

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

.

recovered from the bail petitioner and as such, he can be ordered to be

released on bail by putting him to stringent conditions.

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

while acknowledging the fact that investigation in the case is complete

and nothing is required to be required from the bail petitioner, opposed

the aforesaid prayer having been made by the learned counsel for the

petitioner and contended that keeping in view the gravity of offence

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

enlarged on bail. He further contended that though perusal of complaint

made by the complainant suggests that bail petitioner and prosecutrix

were known to each other and had been meeting each other, but taking

note of the age of the prosecutrix, no relief as prayed for in the instant

petition can be extended. Learned Additional Advocate General further

contended that since prosecutrix is minor, as is quite apparent from the

material adduced on record, her consent, if any, is immaterial and as

such, bail petition deserves to be dismissed. He further contended that

medical evidence adduced on record has not ruled out possibility of

sexual assault, if any, committed upon the prosecutrix, rather it has been

stated that there is no evidence to prove recent sexual intercourse, if any.

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

through the record of the case.

.

6. Before adverting to the submissions having been made by

the learned counsel for the parties and the record made available to this

Court, it may be noticed that during the proceedings of the case,

prosecutrix and the complainant came present in the Court. Investigating

officer, who is present in the Court, identified both the prosecutrix and the

complainant in the Court. Complainant Mitra Devi stated before this

Court that families of the bail petitioner and prosecutrix are related to

each other and at one point of time, they had agreed to solemnize

marriage of the bail petitioner with the prosecutrix, but due to some mis-

understanding, aforesaid FIR came to be lodged against the bail

petitioner at her behest. She further stated before this Court that since

families of the bail petitioner and prosecutrix have resolved to settle the

matter amicably, she has no objection, in case, case registered against

the bail petitioner at her behest is quashed and set-aside.

7. Complainant-prosecutrix, who is admittedly a minor, also

stated before this Court that she knew the bail petitioner for last 3-4 years,

and during this period, they had developed friendly relations with each

other. She further stated that since bail petitioner had assured her that he

would marry her, he used to accompany her. Aforesaid prayer having

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been made by the complainant and prosecutrix during the proceedings

of the case, cannot be considered and decided in the present

.

proceedings, rather in this regard, appropriate proceedings, if any, are

required to be filed by them in competent court of law, in accordance

with law. But definitely having heard aforesaid submissions/statements

having been made by complainant and prosecutrix, this Court is

persuaded to agree with the contention of the learned counsel for the

petitioner that families of bail petitioner and prosecutrix were known to

each other and they had agreed to solemnize the marriage of the

petitioner with the prosecutrix, but since age of the prosecutrix was below

18, marriage could not be solemnized.

8. Another aspect of the matter is that factum with regard to

the acquaintance of the bail petitioner with the prosecutrix, was in the

know of the complainant since year, 2016, but she chose to remain silent

for quite considerable time and finally on 23.12.2017, i.e. after

approximately 2 years, she lodged a complaint against the petitioner

leveling therein allegations as have been taken note herein above.

Though, aforesaid aspects of the matter would be considered by the

court below on the basis of evidence available on record, but this court

taking note of the fact that both the parties are ready and willing to

solemnize marriage of the bail petitioner with the prosecutrix, sees no

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reason to keep bail petitioner behind the bars for an indefinite period,

who has already suffered for more than six months.

.

9. Needless to say, guilt, if any, of the bail petitioner is yet to be

proved in accordance with law by the prosecution by leading cogent

and convincing evidence. It is well settled that till the time a person is not

found guilty, one is deemed to be innocent. 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

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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 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

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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.

10 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.

11 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

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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, 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.”

13. 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;

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(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.

14. In view of the aforesaid discussion as well as law laid down

by the Hon’ble Apex Court, petitioner has carved out a case for grant of

bail, accordingly, the petition is allowed and the petitioner is ordered to

be enlarged on bail in aforesaid FIR, subject to his furnishing personal

bond in the sum of Rs. 2,00,000/- with two local sureties in the like amount

to the satisfaction of concerned Chief Judicial Magistrate/trial Court, 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 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.

15. 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.

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16. 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.

27th April, 2018 (Sandeep Sharma),
manjit Judge

r to

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