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Parvesh Kumar @ Vikkey vs State Of Himachal Pradesh on 26 October, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CrMP(M) No. 1121 of 2018
Decided on October 26, 2018

.
_

Parvesh Kumar @ Vikkey … 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. R.L. Verma, Advocate vice Mr.
Vinod K. Sharma, Advocate.

For the respondent : Mr. S.C. Sharma, Mr. Dinesh
r Thakur and Mr. Sanjeev Sood,
Additional Advocates General.

ASI Sant Pal Sharma, I/O, Police
Station Bangana, Una, H.P.
_
Sandeep Sharma, Judge (oral):

Bail petitioner, who is behind the bars since

22.2.2018, has approached this court in the instant

proceedings under S. 439 CrPC, praying therein for grant of

regular bail in case FIR No. 27/18 dated 22.2.2018 under Ss.

363, 366A and 376 IPC, and Ss. 4 and 21 of the Protection of

Children from Sexual Offences Act, registered at Police Station,

Bangana, Una, Himachal Pradesh.

2. Sequel to order dated 20.9.2018, ASI Sant Pal

Sharma, has come present with the record. Mr. Dinesh

Thakur, learned Additional Advocate General has also placed

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

26/10/2018 22:59:37 :::HCHP
2

on record status report, prepared on the basis of investigation

carried out by the investigating agency. Record perused and

.

returned.

3. Close scrutiny of the record reveals that FIR,

detailed herein above, came to be lodged at the behest of the

complainant namely Mukhtyaro Devi, who alleged hat her

minor daughter i.e. prosecutrix has been kidnapped and

sexually assaulted by the present bail petitioner. After lodging

of aforesaid complaint, police recovered the prosecutrix from

one tea shop at place called, ‘Dhundhla’. Prosecutrix in her

statement given to the police, categorically stated that she, of

her own volition, had joined the company of bail petitioner and

he has not committed any offence, much less, offence under S.

376 IPC. Status report further reveals that the prosecutrix

refused to undergo medical examination. Police also got her

statement recoded under S. 164 CrPC before the concerned

Magistrate, wherein she reiterated that she, of her own

volition, had joined the company of the bail petitioner and at

no point of time, he had compelled her to join his company.

Though, initially, prosecutrix had refused to under go medical

examination but after lodging of FIR, detailed herein above,

she was got medically examined, report whereof indicates that

she was subjected to sexual intercourse. Further, the

prosecutrix in her statement given before Magistrate under S.

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164 CrPC, categorically stated that bail petitioner has not

committed anything wrong with her and she, of her own

.

volition, had joined his company. Challan in the case stands

filed in the competent Court of law and as per record made

available to this court, all the material prosecution witnesses

have not supported the case of the prosecution.

4. Learned counsel for the bail petitioner, while

referring to the record/status report, vehemently argued that

no case, if any, is made out against the bail petitioner under S.

376 IPC, because all the material prosecution witnesses have

resiled from their initial statements given to the police. While

specifically inviting attention of this court to the statement of

prosecutrix recorded under S. 164 CrPC, learned counsel

representing the bail petitioner contended that it clearly

suggests that the prosecutrix was not kidnapped rather, she,

of her own volition, joined the company of the bail petitioner

and as such, no case, if any, could be made against bail

petitioner under S. 376 IPC.

5. During proceedings of the case, learned counsel for

the bail petitioner also made available certified copies of the

statements/ depositions having been made by the material

prosecution witnesses during trial to demonstrate that no case

is made out against the bail petitioner and as such, he

deserves to be enlarged on bail.

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6. Mr. Dinesh Thakur, learned Additional Advocate

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

.

present in the court, fairly acknowledged that all the material

prosecution witnesses i.e. complainant, prosecutrix, father and

aunt of prosecutrix, have resiled from their initial statements

and as such, possibility of bail petitioner being convicted in

the present case is very bleak and remote. Mr. Thakur, learned

Additional Advocate General also contended that though the

record clearly suggests that the prosecutrix at the time of

alleged accident was a minor but since she has categorically

stated before the court below that no wrong has been

committed upon her in the alleged incident and she, of her

own volition, had joined the company of the bail petitioner,

there is no likelihood of bail petitioner being punished for the

committed offence punishable under S. 376 IPC and S. 4 of

Protection of Children from Sexual Offences Act.

7. I have heard the learned counsel for the parties and

gone through the record carefully.

8. Having heard the learned counsel representing the

parties and perused the material available on record

especially, statements/depositions having been made by the

material prosecution witnesses during trial, which are taken

on record and made part of the case, file, this court finds that

the chances of bail petitioner being convicted in the present

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case, are very bleak/remote. In the case at hand, prosecutrix

from day one has maintained that the bail petitioner has not

.

committed any wrong upon her and she, of her own volition,

had joined his company, as such, this court sees no reason to

allow the bail petitioner to incarcerate in jail for indefinite

period, especially when he has already suffered for more than

eight months. Though, aforesaid aspects of the matter are to

be considered and decided by the learned trial Court, in the

totality of the evidence available on record, but this court

having perused record sees no reason to keep the bail

petitioner behind the bars for indefinite period and as such, he

deserves to be enlarged on bail.

9. 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 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

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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.”

10. 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. 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

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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
rcircumstances, 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, Hon’ble Apex Court has held as under:

“This Court in Sanjay Chandra vs. Central Bureau of
Investigation (2012) 1 SCC 40, 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

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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 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 a
taste of imprisonment as a lesson. It was enunciated
rthat 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

and 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 that 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.”

12. 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,

character of the accused, circumstances which are peculiar to

the accused involved in that crime.

13. 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.

14. 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

learned trial court, besides following conditions:

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(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) He shall surrender passport, if any, held by him.

15. 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.

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 instant petition alone.

The petition stand accordingly disposed of.

Copy dasti.

(Sandeep Sharma)

Judge
October 26, 2018
(vikrant)

26/10/2018 22:59:37 :::HCHP

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