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Karan Manhas vs State Of Himachal Pradesh on 10 December, 2019

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.2211 of 2019
Decided on: 10.12.2019

.

Karan Manhas ………..Petitioner
Versus
State of Himachal Pradesh ……….Respondent

Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioner :
Mr. Suresh Kumar Thakur and Mr.
Hemant Kumar Thakur, Advocates.

For the Respondent : Mr. Anil Jaswal and Mr. Arvind Sharma,
Additional Advocate Generals, for the
State.

Sandeep Sharma, Judge (oral):

Sequel to order dated 2.12.2019, whereby bail petitioner was

ordered to be enlarged on bail in case FIR No. 174/2019 dated 8.11.2019,

under Section 354, 366, 376, 504 , 506 and 511of IPC, ASI Man Singh, has

come present along with records. Record perused and returned.

2. Mr. Anil Jaswal, learned Additional Advocate General, has

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

carried out by the Investigating Agency. Learned Additional Advocate

General, on the instructions of Investigating Officer, who is present in the

Court, while admitting that petitioner has joined the investigation pursuant

to order dated 2.12.2019, contended that keeping in view the gravity of

offence alleged to have been committed by the bail petitioner, prayer

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

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made on behalf of the petitioner may be rejected outrightly. He while

making this Court to peruse the record argued that the bail petitioner has

.

sexually assaulted the victim-prosecutrix repeatedly against her wishes on

the pretext of marriage and as such, it may not be in the interest of justice

to enlarge him on bail because in the event of his being enlarged on bail,

he may not only flee from justice, rather may make an attempt to cause

harm to the victim-prosecutrix, whose statement is yet to be recorded

before the Court below.

3. Having heard learned counsel for the parties and perused

material available on record, this Court finds that victim-prosecutrix filed a

complaint under Section 156(3) of CrPC before the JMIC Jawali, District

Kangra, praying therein to take appropriate action against the bail

petitioner, who allegedly sexually assaulted her against her wishes.

Victim-prosecutrix alleged before the JMIC that she knows the bail

petitioner since her school time. She alleged that when she passed her

10+2 examination, bail petitioner proposed her for marriage, however

such proposal could not be materialized because at that time, she was

pursuing her studies. She alleged that on 4.3.2014, bail petitioner took her

to Tehsil Nurpur and forcibly and fraudulently got executed the affidavit of

marriage. She alleged that she did not know that on what papers her

signatures were obtained by the bail petitioner in the presence of the

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Advocate namely Ravi Puri. She alleged that she completed her post

graduation from Regional Centre (Khaniara Mohli) Dharamshala in 2016

.

and even during this period, bail petitioner sexually assaulted her against

her wishes. She alleged that on 7.4.2019, she was engaged to some other

person, but the bail petitioner on coming to know the factum with regard

to her engagement with some other person also started extending threats

to her. Victim-prosecutrix alleged that on 29.4.2019, when her parents

had gone to attend some marriage at Village Sidhpurghar and she was

alone at her home, bail petitioner forcibly took her in a car towards Jonta

Kotla. She alleged that she tried to raise hue and cry, but since her mouth

was gagged, she was unable to escape from the clutches of the bail

petitioner. Victim-prosecutrix alleged that on 29.4.2019, the bail petitioner

took her to Barot and sexually assaulted her against her wishes. On

29.4.2019, parents of the complainant lodged a complaint with police,

whereafter police recovered the victim-prosecutrix alongwith the bail

petitioner from Barot on 30.4.2019. In the aforesaid background, FIR as

referred herein above, came to be lodged against the present bail

petitioner.

4. Having carefully perused material available on record,

especially statement of victim-prosecutrix recorded under Section 164

Cr.PC in the court of learned JMIC Jawali, this court finds that victim-

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prosecutrix had prior acquaintance with the bail petitioner and she knew

him since 2010. Though victim-prosecutrix has stated that since her school

.

times, bail petitioner used to tease her, but her own statement reveals that

she of her own volition joined the company of the bail petitioner on many

occasions and thereafter, established physical relations. Though, there is

no mention, if any, with regard to forcible sexual assault, if any, by the bail

petitioner in the statement of victim-prosecutrix recorded under Section

164 Cr.PC, but compliant made to JMIC reveals that between 9.3.2014 till

29.4.2019, victim-prosecutrix met the bail petitioner on many occasions,

and during this period, they also solemnized marriage. Record reveals

that Investigating Agency also ascertained the correctness and

genuineness of the affidavit of marriage executed by victim-prosecutrix

and the bail petitioner at Nurpur in the presence of Advocate namely

Ravi Puri. The above named advocate categorically stated before the

police that affidavit of marriage was executed by the bail petitioner and

the prosecutrix of their own volition and without there being external

pressure. In the case at hand, though victim-prosecutrix has claimed that

on 4.3.2014, bail petitioner forcibly took her to Tehsil Nurpur for getting the

affidavit of marriage executed, but her own statement reveals that even

after the aforesaid date, she kept on meeting the bail petitioner on

number of occasions, even on 29.4.2019, victim-prosecutrix went to the

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road to join the company of the bail petitioner, who thereafter allegedly

took her to Barot, District Mandi. Record clearly reveals that it is only after

.

the lodging of the police complaint by the parents of the victim-

prosecutrix; she along with bail petitioner came to be recovered from

place called Barot. Photographs available on record clearly reveal

factum with regard to marriage inter-se victim-prosecutrix and bail

petitioner. Victim-prosecutrix is 26 years old and as such, it cannot be said

that she was incapable of understanding the consequence of her being

in the company of the bail petitioner, to whom she otherwise knew for

more than 8 years.

5. Leaving everything aside, there is no plausible explanation

rendered on record by the victim-prosecutrix qua the delay in lodging the

FIR. If the version put forth by the victim-prosecutrix is accepted that on

4.3.2014, she was forcibly made to execute the affidavit of marriage, it is

not understood that what prevented her from lodging a report in the

police at that juncture.

6. Though aforesaid aspects of the matter are to be

considered and decided by the court below in the totality of evidence

collected on record by the Investigating Agency, but having taken note

of the aforesaid aspects of the matter, these Court sees no reason for

custodial interrogation of the bail petitioner, who otherwise has made

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himself available for investigation. Guilt, if any, of the bail petitioner is yet

to be proved in accordance with law by leading cogent and convincing.

.

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

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.

8. 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

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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
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

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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.

9. 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.

10. 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

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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.”

11. 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.”

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12. 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;

(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.

13. Consequently, in view of the above, order dated 2.12.2019

passed by this Court, is made absolute, subject to applicant’s furnishing

personal bonds in the sum of Rs. 1,00,000/- with one surety in the like

amount to the satisfaction of the Arresting officer with 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

(d) He shall not leave the territory of India without the prior permission of
the Court.

(e) The bail petitioner shall also handover the passport to the
Investigating Agency.

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14. It is clarified that if the petitioner misuses the liberty or violate

any of the conditions imposed upon him, the investigating agency shall

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be free to move this Court for cancellation of the bail.

15. 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.

Authenticated copy.

10th December, 2019 (Sandeep Sharma),
manjit
r Judge

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