IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.1879 of 2019
Decided on: 25.11.2019

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Raman Kumar ………..Petitioner
Versus
State of Himachal Pradesh ……….Respondent

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

For the Petitioner : Mr. G.R. Palsra, Advocate.

For the Respondent : Mr. Sanjeev Sood, Additional Advocate
General with Mr. Kunal Thakur, Deputy
Advocate General.

Sandeep Sharma, Judge (oral):

Instant bail petition under Section 439 CrPC has been filed

by the bail petitioner, namely Raman Kumar, who is behind bars since

5.8.2019, for grant of regular bail in connection with FIR No. 66/19, dated

03.8.2019, under Sections 363, 366, 376 and 120-B of IPC, Section 4 of the

POCSO Act and Section 3 (2) V SC/ST Act, registered at P.S. Janjehali,

District Mandi, H.P.

2. In terms of order dated 14.11.2019, Inspector Gopal Singh,

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.

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

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3. It emerges from the record/status report made available to

this Court that, complainant Roshan Lal, on 3.8.2019, made a complaint

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at PS Janjehali, District Mandi, H.P., stating therein that his minor daughter

(name withheld), who is 16 years’ old, has left the house without informing

them. He further informed to the police that on 3.8.2019, his wife received

a telephonic call from one boy, who informed them that he has

solemnized marriage with their daughter i.e. victim-prosecutrix.

Complainant alleged that since his minor daughter is not picking up the

phone, he has suspicion that somebody has made her to elope with him

taking undue advantage of her innocence and minority. On the basis of

aforesaid complaint made by the complainant, FIR under Section 363 of

IPC came to be registered against the unknown person, however, on

5.8.2019, victim-prosecutrix along with bail petitioner surrendered at the

police station Janjehali and informed that they have solemnized

marriage. Complainant identified his daughter in the police station, but

subsequently victim-prosecutrix in her statements given to police under

Section 161 CrPC and to the Judicial magistrate under Section 164 Cr.PC,

alleged that she was sexually assaulted against her wishes by the

accused Raman Kumar on the pretext of marriage. She deposed before

the learned Judicial Magistrate that bail petitioner Raman Kumar took her

to Kullu in a taxi bearing No. HP01K 6156. On the basis of aforesaid

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statements made by the victim-prosecutrix and her father i.e.

complainant, case under Sections 363, 366, 376 and 120-B of IPC, Section

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4 of the POCSO Act and Section 3 (2) V SC/ST Act came to be lodged

against the bail petitioner as well as other co-accused namely Sachin and

Uday and since 5.8.2019, he is behind bars, whereas other co-accused

namely Sachin and Uday stand already enlarged on bail.

4. Mr. Kunal Thakur, learned Deputy Advocate General, on the

instructions of Investigating Officer, while fairly admitting stated that

investigation in the case is almost complete and nothing remains to be

recovered from the bail petitioner contended that keeping in view the

gravity of offence alleged to have been committed by the bail petitioner,

his application for grant of bail deserves outright rejection. Mr. Thakur,

further contended that consent, if any, of victim-prosecutrix is immaterial

because at the time of the alleged incident, she was minor. He further

contended that bail petitioner firstly taking undue advantage of

innocence of the victim-prosecutrix made her to elope with him and then,

sexually assaulted her against her wishes and as such, it would not be in

the interest of justice to release him on bail at this stage.

5. Having heard learned counsel for the parties and perused

material available on record, especially statement of victim-prosecutrix

recorded under Section 164 Cr.PC, this Court finds that victim-prosecutrix

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had close proximity with the bail petitioner and they have been meeting

each other for the last one year prior to the alleged incident. It also

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emerges from the statement given by the victim-prosecutrix that she of

her own volition and without there being any external pressured caused

by the bail petitioner went to Kullu alongwith him, where she stayed in a

hotel. Record of investigation clearly reveals that prior to the alleged

incident, bail petitioner gave 35 calls on the mobile number of father of

the victim-prosecutrix and as such, it cannot be said that father of the

victim-prosecutrix or other family members were not aware of friendship of

victim-prosecutrix with the bail petitioner. Record further reveals that after

lodging of FIR against the unknown person, victim-prosecutrix alongwith

the bail petitioner surrendered at P.S. Janjehli, where they gave a

statement that they have already solemnized marriage. Factum with

regard to solemnization of marriage inter-se bail petitioner and victim-

prosecutrix can also be gazed from the statement of victim-prosecutrix

recorded under Section 164 Cr.PC, wherein she has stated that father of

bail petitioner refused to accept her on account of her caste.

6. During the proceedings of the case, Mr. G.R. Palsra, learned

counsel for the petitioner informed this Court that bail petitioner is still

ready and willing to perform marriage with victim-prosecutrix, but her

father is not agreeable to marriage inter-se bail petitioner and victim-

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prosecutrix. Record also reveals that at the time of alleged incident, age

of victim-prosecutrix was 17 years and 5 months and as such, it cannot be

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said that she was incapable of understanding the consequences of her

being in the company of the bail petitioner. Rather, this Court having

carefully perused material available on record, is convinced and satisfied

that victim-prosecutrix of her own volition fully knowing the consequences

joined the company of the bail petitioner for solemnizing the marriage.

Medical evidence adduced on record by the Investigating Agency also

does not support the case of the prosecution.

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 keeping

in view the aforesaid glaring aspect of the matter, this Court is of the view

that no fruitful purpose would be served in case bail petitioner is allowed

to incarcerate in jail for an indefinite period, especially when he has

already suffered more than 3 ½ months. Moreover, no material worth the

name has been adduced on record suggestive of the fact that in the

event of petitioner’s being enlarged on bail, he may flee from justice and

as such, this Court has reason to presume that petitioner being local

resident of the area would always be available for investigation and trial

as and when called by the Investigating Agency.

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8. 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

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question whether bail should be granted or refused is whether it is

probable that the party will appear to take his trial. The Hon’ble Apex

Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1

Supreme Court Cases 49 has categorically held that 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.

9. 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

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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 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

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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

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enormous overcrowding in prisons, leading to social and other
problems as noticed by this Court in In Re-Inhuman Conditions in 1382

Prisons.

See. Manoranjana Sinh Alias Gupta versus CBI 2017 (5)
SCC 218, Prasanta Kumar Sarkar v. Ashis Chatterjee
and Another (2010) 14 SCC 496

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10. 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/- each with two 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.

11. 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.

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12. 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.

25th November, 2019 (Sandeep Sharma),
manjit Judge

r to

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