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Judgments of Supreme Court of India and High Courts

Ram Chand vs State Of Himachal Pradesh on 19 June, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.622 of 2018
Decided on: 19.6.2018

.

Ram Chand ………..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. K.B. Khajuria, Advocate.

For the Respondent : Mr. S.C. Sharma, Additional Advocate
General and Mr. Amit K. Dhumal,
Deputy Advocate General.

Sandeep Sharma, Judge (oral):

By way of instant bail petition filed under Section 439 of

Cr.PC, prayer has been made on behalf of the bail petitioner for grant of

regular bail in FIR No. 45/18 dated 13.4.2018, under Sections 376, 342 and

506 of IPC, registered at PS Tissa, District Chamba, HP.

2. Sequel to orders dated 22.5.2018 and 29.5.2018, passed by

this Court, ASI Virender Singh I/o, P.S. Tissa, District Chamba, HP, has come

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

returned. Mr. S.C. Sharma, learned Additional Advocate General, has

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

investigation carried out by the investigating agency.

1

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

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2

3. Close scrutiny of the record/status report suggests that on

12.4.2018, complainant/prosecutrix got her statement recorded under

.

Section 154 Cr.PC, alleging therein that after death of her mother, she

started residing with her maternal grandfather at village Myas. She further

alleged that six months back, when she had come to the house of her

maternal uncle, bail petitioner namely Ram Chand, who happened to be

her cousin, sexually assaulted her against her wishes. Since she was

threatened by the bail petitioner, she did not report the matter to the

police. She further alleged that though she had brought the matter to the

notice of other family members, but she was persuaded not to lodge any

complaint against the bail petitioner. 10-12 days prior to lodging of the

complaint, bail petitioner came to the residence of his father at Chamba

Baalu, wherein she disclosed factum with regard to the sexual assault

committed upon her by the bail petitioner, to her aunt namely Gorkhi,

who subsequently brought her to office of SP Chamba. In the aforesaid

background, FIR as detailed herein above, came to be lodged against

the bail petitioner and since, 13.4.2018, bail petitioner is behind the bars.

4. Pursuant to lodging of aforesaid FIR, statement of

complainant/ prosecutrix came to be recorded under Section 164 Cr.PC.,

before learned JMIC, Chamba, where prosecutrix, who is 30 years old,

resiled from her statement given to police given under Section 154 Cr.PC.

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She denied the alleged incident before the learned magistrate and

categorically stated that there is no pressure upon her to make the

.

statement. Petitioner preferred bail application before the learned

Additional Sessions Judge, Chamba, District Chamba, but same came to

be dismissed vide order dated 15.5.2018.

5. Mr. K.B. Khajuria, learned counsel representing the bail

petitioner vehemently contends that report was lodged on 12.4.2018,

whereafter immediately on 16.4.2018, statement of complainant-

prosecutrix under Section 164 Cr.PC, was recorded by the learned

magistrate, wherein complainant-prosecutrix denied the alleged incident

and as such, learned Additional Sessions Judge, had no occasion to

reject the bail. Mr. Khajuria, further contends that there was no occasion

for the learned Additional Sessions Judge, to conclude that statement

under Section 164 of Cr.PC, was made by the complainant-prosecutrix on

the persuasion of the family members of the bail petitioner. Mr. Khajuria,

further submits that as per statement given to the police, alleged incident

had taken place 5-6 months prior to the lodging of the complaint and

there is no explanation rendered on record that what prevented the

complainant/prosecutrix, who is major, to report this matter to the police

at the first instance. Lastly, Mr. Khajuria, while referring to the medical

evidence adduced on record by the Investigating Agency contends that

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there is no definite opinion, if any qua the commission of offence

allegedly committed by the bail petitioner under Section 376 of IPC and

.

as such, bail petitioner, who has been falsely implicated, deserves to be

enlarged on bail. Mr. Khajuria, submits that investigation in the case is

complete and nothing is required to be recovered from the bail petitioner

and as such, no fruitful purpose would be served in case, he is kept

behind the bars for an indefinite period, rather his freedom would be

curtailed, which is not permissible under law.

6. Mr. S.C. Sharma, learned Additional Advocate General,

while acknowledging the factum with regard to the statement having

been made by the prosecutrix under Section 164 Cr.PC, wherein she

resiled from her statement, contends that possibility of exerting pressure

upon the complainant-prosecutrix cannot be ruled out in view of the

relationship of the bail petitioner with the complainant-prosecutrix and as

such, learned Additional Sessions Judge, rightly rejected the bail

application having been preferred on behalf of the bail petitioner. Mr.

Sharma, further contends that keeping in view the gravity of offence

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

shown any leniency, rather needs to be dealt with severely. Learned

Additional Advocate General, also states that no benefit can be drawn

by the petitioner from the medical evidence adduced on record

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because admittedly, alleged incident took place 5-6 months prior to the

lodging of the complaint i.e. 12.4.2018.

.

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

through the record of the case.

8. Having carefully perused statement made by the

complainant-prosecutrix, who is 30 years old, this Court is persuaded to

agree with the contention raised by the learned counsel representing the

petitioner that there was no occasion for the learned Additional Sessions

Judge, to conclude that possibility of exerting pressure upon the bail

petitioner by the family members on the prosecutrix cannot be ruled out.

It is nowhere mentioned in the order that material, if any, was produced

by the Investigating Agency before the Court to demonstrate that

complainant-prosecutrix was compelled to resile from her original

statement given to the police under Section 154 Cr.PC. It clearly emerges

from the statement recorded under Section 164 Cr.PC that JMIC,

specifically asked the complainant-prosecutrix that whether she is giving

this statement under some pressure but she specifically stated that she is

not under any kind of pressure. Apart from above, it is not in dispute that

alleged incident took place 5-6 months prior to the lodging of the

complaint dated 12.4.2018, but there is no explanation available on

record that why complainant-prosecutrix kept mum for almost 6 months.

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Though, complainant prosecutrix has alleged that she was threatened by

the bail petitioner and persuaded by the family members not to lodge

.

any complaint, but it is not understood that why she resiled from her initial

statement given to police while making statement under Section 164

Cr.PC. There is no material placed on record suggestive of the fact that

the complainant-prosecutrix is insane or incapable of understanding the

things, rather careful perusal of the statement made by her under Section

164 of Cr.PC, clearly suggests that she of her own disclosed to the JMIC

that nothing wrong had happened.

9. Leaving everything aside, medical evidence adduced on

record, especially report of FSL nowhere indicates towards the

commission of offence, if any, under Section 376 IPC. Though aforesaid

aspects of the matter are to be considered and decided by the Court

below on the basis of material adduced on record by the prosecution,

but at this stage, this Court having perused statement made by the

complainant under Section 164 Cr.PC, sees no reason to keep the bail

petitioner behind the bars for an indefinite period, especially, when

investigation is complete and nothing is required to be recovered from

the bail petitioner. Repeatedly, it has been held by the Hon’ble Apex

Court as well as this Court that freedom of an individual is utmost

importance and cannot be curtailed for an indefinite period.

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10. 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
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

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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
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.

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11. 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.

12. 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
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

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

13. 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.”

14. 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;

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(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.

.

15. 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. 1,00,000/- with one local surety 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.

16. 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.

17. Any observations made hereinabove shall not be construed

to be a reflection on the merits of the case and shall remain confined to

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the disposal of this application alone. The petition stands accordingly

disposed of.

.

Copy dasti.

19th June, 2018 (Sandeep Sharma),

manjit Judge

r to

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