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Sanjeev Kumar vs State Of Himachal Pradesh on 2 April, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CrMP(M) No. 324 of 2018
Decided on April 2, 2018
__

.
Sanjeev Kumar … 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. Kulbhushan Khajuria,
Advocate.

For the respondent : Mr. Dinesh Thakur, Additional
Advocate General with Mr. Vikrant
r Chandel, Deputy Advocate General.

ASI Sat Pal, I/O, PS Tissa, District
Chamba, Himachal Pradesh.
__
Sandeep Sharma, Judge (oral):

Bail petitioner namely Sanjeev Kumar, who is behind the

bars since 9.12.2017, has approached this Court in the instant

proceedings filed under Section 439 CrPC, praying therein for

grant of regular bail in connection with FIR No. 133 of 2017

dated 7.12.2017, under Section 376 IPC and Sections 6 and 17

of Protection of Children from Sexual Offences Act, registered at

Police Station, Tissa, District Chamba, Himachal Pradesh.

2. Sequel to order dated 26.3.2018, ASI Sat Pal has come

present with the record. Mr. Dinesh Thakur, learned Additional

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

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2

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.

.

3. Perusal of record/ status report reveals that FIR detailed

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

complainant namely Ram Dei, who alleged that her minor

daughter was enticed and taken away in her absence by

accused Sanjeev Kumar and his father on 25.9.2017. Allegedly

on 26.9.2017,

complainant contacted her

(prosecutrix), over the telephone, who disclosed that she has

been brought to village Kanoi by accused Sanjeev Kumar and
daughter

his father, Chaman Singh. Since families of complainant and

accused were known to each other and they had also agreed for

marriage of the victim and Sanjeev Kumar, complainant

thought it not proper to register complaint in the Police Station

against aforesaid illegal act of Sanjeev Kumar and his father.

Allegedly after one and a half months of aforesaid incident,

mother of petitioner, who is also accused in the case, visited the

house of complainant alongwith victim but she left victim

there and returned back to her house. Since for considerable

time, none from the family of bail petitioner came back to take

the victim, complainant with the assistance of Panchayat made

an endeavour to contact bail petitioner and his parents but

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accused refused to accept her as such case referred to herein

above came to be registered against them at Police Station

Tissa, District Chamba.

.

4. Mr. Kulbhushan Khajuria, learned counsel representing

the bail petitioner contends that it is quite apparent from the

record that the daughter of the complainant had herself of her

own volition joined the company of bail petitioner. He further

stated that as per own statement of the complainant, victim

remained with the family of the bail petitioner at Village Kanoi

without there being any complaint, rather this fact was known

to the complainant because during this period, she made no

effort to contact her. Mr. Khajuria further contended that it has

also come on record that families of victim and bail petitioner

were known to each other for a considerable time and they had

agreed for their marriage. While referring to the conduct of the

mother of victim, learned counsel representing the bail

petitioner contended that she despite having discovered the fact

that her daughter is living with bail petitioner and his parents

since 25.9.2017, never thought it proper to register the FIR,

which ultimately came to be registered after a lapse of three

months. While referring to the report of RFSL, learned counsel

representing the bail petitioner contended that no case is made

out against bail petitioner under Section 376 IPC and Sections

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6 and 17 of the Protection of Children from Sexual Offences Act,

as such, bail petitioner deserves to be enlarged no bail. While

referring to judgments dated 19.1.2018 and 19.3.2018 passed

.

by this Court in CrMP(M) N o. 39 of 2018 and CrMP No. 194 of

2018, learned counsel representing the bail petitioner

contended that other co-accused have already been enlarged on

bail, as such, present bail petitioner, who is a boy of tender age,

deserves to be enlarged on bail.

5.

Mr. Dinesh Thakur, learned Additional Advocate General,

while opposing aforesaid prayer having been made by the

learned counsel representing the bail petitioner, contended that

keeping in view the gravity of the offence allegedly committed by

bail petitioner, he does not deserve to be enlarged on bail. He

further contended that true it is that as per forensic report,

there is no recent evidence of sexual intercourse but that may

not be sufficient to conclude that bail petitioner did not indulge

in sexual assault, as has been categorically alleged by the

victim. He further categorically stated that since in the report, it

has been stated that there is no evidence of recent sexual

intercourse, it cannot be concluded at this stage that the bail

petitioner did not sexually assault the victim during the period

she remained with him at his house. While fairly admitting that

Challan stands filed in the competent Court of law and nothing

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5

is required to be recovered from the bail petitioner, Mr, Thakur,

learned Additional Advocate General contended that in the

event of petitioner being enlarged on bail, he may influence and

.

tamper with evidence adduced on record by prosecution, as

such, present petition may be dismissed.

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

through the record carefully.

7. It is quite apparent from the record made available to this

Court that families of bail petitioner and victim were known to

each other for quite considerable time and in fact they had

agreed inter se them to solemnize marriage of victim with bail

petitioner. Bail petitioner and other co-accused Chaman Singh

had taken the victim to their house but despite that,

she(complainant) failed to report the matter to the police, rather

she remained quiet for almost 3-4 months. There is nothing on

record suggestive of the fact that during this period, she made

any attempt, if any, to lodge complaint in Gram Panchayat.

Similarly, there appears to be no effort on her part to bring her

daughter back to her house during the period of three months.

Explanation rendered by complainant for delay in lodging FIR,

does not appear to be plausible, rather there appears to be

considerable force in the argument of learned counsel

representing the bail petitioner that complainant was in the

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know of the things that her daughter is residing with the family

of bail petitioner.

8. Leaving everything aside, perusal of medical evidence as

.

well as report of RFSL placed on record, nowhere corroborates

version put forth by victim and complainant. RFSL has

categorically opined that there is no evidence of sexual

intercourse. Even if the initial report of medical officer is

perused, he has not given any conclusive report to the effect

that victim was subjected to sexual intercourse, as such, this

Court, at this stage, after having perused entire evidence

collected on record by prosecution, sees no reason to keep the

bail petitioner in custody for indefinite period. Guilt if any, of

the bail petitioner is to be proved in accordance with law by

prosecution by leading cogent and convincing evidence on

record. Though, aforesaid aspect of the matter is to be

considered and decided by the court below on the basis of

evidence, if any, collected on record by prosecution, but this

Court, sees no reason to let the bail petitioner incarcerate in jail

for indefinite period, especially when Challan stands filed in the

competent Court of law.

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

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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 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

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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.”

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

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

11. Law with regard to grant of bail is now well settled. The

Apex Court in Siddharam Satlingappa Mhetre versus State of

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Maharashtra and others, (2011) 1 SCC 694, while relying upon

its decision rendered by its Constitution Bench in Gurbaksh

Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565, laid down

.

the following parameters for grant of bail:-

“111. No inflexible guidelines or straitjacket formula
can be provided for grant or refusal of anticipatory

bail. We are clearly of the view that no attempt
should be made to provide rigid and inflexible
guidelines in this respect because all circumstances
and situations of future cannot be clearly visualized
for the grant or refusal of anticipatory bail. In

consonance with the legislative intention the grant
or refusal of anticipatory bail should necessarily
depend on facts and circumstances of each case. As
aptly observed in the Constitution Bench decision in

Sibbia’s case (supra) that the High Court or the
Court of Sessions to exercise their jurisdiction

under section 438 Cr.P.C. by a wise and careful use
of their discretion which by their long training and
experience they are ideally suited to do. In any
event, this is the legislative mandate which we are
bound to respect and honour.

112. The following factors and parameters can be
taken into consideration while dealing with the

anticipatory bail:

(i) The nature and gravity of the accusation

and the exact role of the accused must be
properly comprehended before arrest is made;

(ii) The antecedents of the applicant including

the fact as to whether the accused has
previously undergone imprisonment on
conviction by a Court in respect of any
cognizable offence;

(iii) The possibility of the applicant to flee from
justice;

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(iv) The possibility of the accused’s likelihood
to repeat similar or the other offences.

(v) Where the accusations have been made
only with the object of injuring or humiliating

.

the applicant by arresting him or her.

(vi) Impact of grant of anticipatory bail
particularly in cases of large magnitude
affecting a very large number of people.

(vii) The courts must evaluate the entire
available material against the accused very
carefully. The court must also clearly
comprehend the exact role of the accused in

the case. The cases in which accused is
implicated with the help of sections 34 and
149 of the Indian Penal Code, the court
should consider with even greater care and
rcaution because over implication in the cases
is a matter of common knowledge and

concern;

(viii) While considering the prayer for grant of
anticipatory bail, a balance has to be struck
between two factors namely, no prejudice

should be caused to the free, fair and full
investigation and there should be prevention
of harassment, humiliation and unjustified
detention of the accused;

(ix) The court to consider reasonable
apprehension of tampering of the witness or

apprehension of threat to the complainant;

(x) Frivolity in prosecution should always be
considered and it is only the element of

genuineness that shall have to be considered
in the matter of grant of bail and in the event
of there being some doubt as to the
genuineness of the prosecution, in the normal
course of events, the accused is entitled to an
order of bail.” (Emphasis supplied)

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

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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

.

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

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13

surety in the like amount, to the satisfaction of the Investigating

Officer concerned, besides 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)

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

15. 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.

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
April 2, 2018
(vikrant)

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