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Purshotam Chand vs State Of Himachal Pradesh on 16 October, 2019

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.1842 of 2019
Decided on: 16.10.2019

.

Purshotam Chand ………..Petitioner
Versus
State of Himachal Pradesh ……….Respondent

Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 .

For the Petitioner : Mr. N.S. Chandel, Senior Advocate with

Mr. Vinod Gupta, Advocate.
For the Respondent : Mr. Sudhir Bhatnagar and Mr. Sanjeev
Sood, Additional Advocate Generals,
with Mr. Kunal Thakur, Deputy Advocate
General, for the State.

Sandeep Sharma, Judge (oral):

Bail petitioner, namely Purshotam Chand, who is behind bars

since 30.9.2018, has approached this Court in the instant proceedings filed

under Section 439 of Cr.PC, for grant of regular bail in connection with FIR

No. 48/18, dated 30.9.2018, under Sections 376, 323, 341 and 506 of IPC,

registered at P.S. Mcleodganj, District Kangra, H.P.

2. In terms of order dated 4.10.2019, ASI Rakesh Parmar, has

come present alongwith records. Mr. Kunal Thakur, learned Deputy

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.

1

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

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

that on 30.9.2018, victim-prosecutrix (name withheld) lodged a complaint

.

at PS Mcleodganj, Dharamshala, District Kangra, alleging therein that she

on 29.8.2018, at 9:30 am, had gone to Tanda Hospial for taking medicines

and at 7:30pm, while she was going back to her house, bail petitioner,

who happened to be her nephew, met her near Salli Bus stand and

offered to drop her at her house. Allegedly, the bail petitioner asked the

victim-prosecutrix that since she is going alone to her house, he would

accompany her. Victim-prosecutrix further alleged that the bail petitioner

while walking with her started behaving indecently and thereafter,

forcibly took her behind the bushes adjacent to the road leading to her

house, where she was sexually assaulted against her wishes. Victim-

prosecutrix further alleged that since her mouth was gagged by the bail

petitioner, she was unable to raise alarm. At 8:15pm, on the date of

alleged incident, victim-prosecutrix informed her husband about the

incident and thereafter, on 30.9.2018 came to police station Mcleodganj

for lodging report. On the basis of aforesaid report, formal FIR as detailed

herein above, came to be lodged against the bail petitioner on 30.9.2018

and since then he is behind the bars.

4. Mr. N.S. Chandel, learned Senior Counsel representing the

bail petitioner while making this Court to peruse the record vehementally

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argued that no case much less under Section 376 IPC is made out against

the bail petitioner and he has been falsely implicated. Mr. Chandel

.

further contended that though bail petitioner is innocent, but even if

statement of victim-prosecutrix is perused vis-à-vis other evidence

collected on record by the Investigating Agency, it clearly suggests that

victim-prosecutrix, who is 45 years old, of her own volition and without

there being external pressure had joined the company of the bail

petitioner and as such, allegation of forcible sexual intercourse is not

tenable. He further contended that challan stands already filed in the

competent court of law and nothing remains to be recovered from the

bail petitioner and as such, his freedom cannot be curtailed for an

indefinite period during trial, especially when he has already suffered for

more than one year. Lastly, Mr. Chandel, contended that the bail

petitioner is the local resident of area and shall always remain available

for trial as and when called.

5. Learned Deputy Advocate General, while fairly admitting

the factum with regard to filing of challan 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 there is ample evidence available on record suggestive

of the fact that the bail petitioner, who otherwise happens to be nephew

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of victim-prosecutrix, taking undue advantage of innocence and

helplessness of the victim-prosecutrix, sexually assaulted her against her

.

wishes and as such, prayer for grant of bail deserves outright rejection.

6. Having heard learned counsel for the parties and perused

material available on record, this Court finds that as per own statement of

victim-prosecutrix, at 9:30 am, victim-prosecutrix had gone to Tanda

Hospital for taking medicines, but there is no explanation that why she

waited till 7:30pm to go back to her house. Similarly, it is an admitted case

inter-se parties that the bail petitioner and victim-prosecutrix are related

to each other and as such, there appears to be considerable force in the

argument of Sh. N.S. Chandel, learned Senior counsel that version putforth

by the victim-prosecutrix cannot be blindly accepted, rather needs to be

examined minutely. As per own statement of victim-prosecutrix, bail

petitioner while accompanying her to her house started behaving

indecently, if it was so, why victim-prosecutrix did not raise alarm at that

stage and refused to go with the bail petitioner. Moreover, careful

perusal of spot map prepared by the Investigating Agency clearly

suggests that bushes, where victim-prosecutrix was allegedly sexually

assaulted, are at a distance of 70-80 feet from the road leading to the

house of the prosecutrix. Had bail petitioner taken the victim-prosecutrix

forcibly towards the bushes and thereafter, subjected her to forcible

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intercourse, victim-prosecutrix must have suffered injuries on her person.

However, careful perusal of medical evidence adduced on record

.

nowhere suggests that victim-prosecutrix suffered any kind of internal or

external injuries save and except one abrasion/bruise on her knee.

Photographs of the alleged spot of incident further suggest that there

were stones and in the event of forcible sexual assault, victim-prosecutrix

would have definitely suffered external injuries on her person, especially

on her back but as has been noticed herein above, no external injury

save and except abrasion and bruise on her knee, ever came to be

detected by the medical officer during medical examination of victim-

prosecutrix. Moreover, cloths wore by victim-prosecutrix on the alleged

date of incident were also not found torn and as such, it cannot be

inferred that struggle, if any, was made by the victim-prosecutrix to

escape herself from the clutches of the bail petitioner at the time of

alleged sexual assault.

7. 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 aspect of the matter, this Court, sees no reason to let

the bail petitioner incarcerate in jail for an indefinite period. Leaving

everything aside, guilt if any of the bail petitioner is yet to be established

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on record by the Investigating Agency by leading cogent and convincing

evidence and as such, his freedom cannot be curtailed for an indefinite

.

period, especially when he has already suffered for more than one year.

Moreover, challan stands filed in the competent court of law and nothing

remains to be recovered from the bail petitioner and there is no material

placed on record to infer that in the event of grant of bail to the bail

petitioner, he would flee from justice and as such, this Court is of the view

that bail petitioner being local resident of the area shall always remain

available for investigation/trial as and when required by the Investigating

Agency.

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

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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
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

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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.

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

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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
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) r danger, of course, of justice being thwarted by grant of bail.

13. 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/- each 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

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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.

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14. 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.

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. r
Copy dasti.

16th October, 2019 (Sandeep Sharma),
manjit Judge

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