SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Sh. Mohammad Ali vs State Of Himachal Pradesh on 21 October, 2019

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

Cr.MP(M) Nos. 1868 and 1869 of 2019

.
Decided on: 21.10.2019

1. Cr.MP(M) No. 1868 of 2019
Sh. Mohammad Ali ………..Petitioner
Versus

State of Himachal Pradesh ……….Respondent

2. Cr.MP(M) No. 1869 of 2019
Sh. Lal Hussain ………..Petitioner
Versus

State of Himachal Pradesh ……….Respondent

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

For the Petitioner(s) :
Mr. V.S. Chauhan, Senior Advocate with
Mr. Vivek Darhel, Advocate.
For the Respondent(s). : Mr. Sanjeev Sood, Additional Advocate
General.
_

Sandeep Sharma, Judge (oral):

Sequel to order dated 15.10.2019, whereby bail petitioners

were ordered to be enlarged on interim bail in the event of their arrest in

case FIR No. 42/2019, under Sections 376, 342, 506 read with Section 34 of

IPC, registered at Mahila Police Station, Mandi, District Mandi, H.P., SI

Pawan Kumar, has come present alongwith records. Mr. Sanjeev Sood,

learned Additional Advocate General, has also placed on record status

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

21/10/2019 20:26:10 :::HCHP
2

report prepared on the basis of investigation carried out by the

Investigating Agency.

.

2. Close scrutiny of record/status report reveals that on

4.10.2019, victim-prosecutrix (name withheld) lodged a complaint in the

aforesaid police station alleging therein that on 28.9.2019, bail petitioner

namely Mohammad Ali called her at a place called Mandi in connection

with financing of vehicle. She alleged that at 4:00pm, she reached

Mandi, but above named Mohammad Ali arrived at Mandi bus stand at

8:00pm, whereafter he informed that today work could not be done. She

further alleged that thereafter, the bail petitioner took her along on the

pretext that he has to purchase certain things and then, he would drop

her at Kullu. She alleged that few kilo meters ahead of Mandi, one

unknown person (i.e. co-accused Lal Hussain) also sat in the vehicle being

driven by the Mohammad Ali and thereafter, they took her to some link

road from the main road and when she objected, both the bail petitioners

extended threats to her. Victim-prosecutrix further alleged that both the

bail petitioners thereafter sexually assaulted her against her wishes in the

vehicle in question. She also alleged that friend of the bail petitioner also

bit on her cheek and thereafter, they both went to Kullu dropping her at a

lonely place. She alleged that since there was injury on her cheek, she

could not come out of her house for so many days. On the basis of

21/10/2019 20:26:10 :::HCHP
3

aforesaid complaint, formal FIR as detailed herein above, came to be

lodged against both the bail petitioners on 4.10.2019, under the aforesaid

.

provisions of law at PS Mandi i.e. after seven days of the alleged incident.

3. Mr. Virender Chauhan, learned Senior Counsel representing

the bail petitioners while praying for bail on behalf of the bail petitioners,

contended that bare statements of victim-prosecutrix nowhere reveal

case, if any, under Sections 376D against the bail petitioners and as such,

they both deserves to be enlarged on bail. Learned Senior counsel further

contended that bare perusal of statements made by the victim-

prosecutrix, itself suggests that she of her own volition and without there

being any external pressure, joined the company of the bail petitioners

and thereafter, falsely implicated them. While inviting attention of this

Court to FIR No. 0033 dated 24.3.2017, registered at PS Bhuntar, District

Kullu, H.P., Mr. Chauhan, made an attempt to persuade this Court to

agree with his submission that conduct of the victim-prosecutrix is not

above the board and she is in habit of falsely implicating the people and

as such, prayer made for grant of bail on behalf of the bail petitioners,

who are 52 and 48 years, respectively, deserves to be accepted. Lastly,

Mr. Chauhan, contended that investigation in the case is complete and

nothing remains to be recovered from the bail petitioners and as such, no

21/10/2019 20:26:10 :::HCHP
4

fruitful purpose would be served in case bail petitioners are kept behind

bars for an indefinite period during trial.

.

4. Mr. Sanjeeev Sood, learned Additional Advocate General,

on the instructions of Investigating Officer fairly stated that though both

the petitioners have joined investigation pursuant to directions contained

in order dated 15.10.2019, but keeping in view the gravity of offence

alleged to have been committed by them, they do not deserve to be

enlarged on bail, rather needs to be dealt with severely. Mr. Sood, further

contended that there is ample evidence available on record that on the

date of alleged incident, both the bail petitioners taking undue

advantage of innocence of the victim-prosecutrix not only sexually

assaulted her, rather gave beatings and as such, bail petitions having

been filed by the petitioners may be rejected at this stage.

5. Having heard learned counsel for the parties and perused

material available on record, especially statements of victim-prosecutrix

recorded under Sections 161 and 164 Cr.PC, this Court finds that victim-

prosecutrix of her own volition joined the company of the bail petitioners,

whereafter she was allegedly sexually assaulted against her wishes.

Medical officer, who had examined the victim-prosecutrix after alleged

incident, though has opined that possibility of sexual assault cannot be

ruled out but if MLC adduced on record is read in its entirety it nowhere

21/10/2019 20:26:10 :::HCHP
5

suggest that victim-prosecutrix suffered any internal or external injury save

and except one injury on her cheek. MLC adduced on record also

.

nowhere suggests signs, if any, of struggle during the alleged incident.

Leaving everything aside, there is no plausible explanation rendered on

record qua the delay in lodging the FIR, which admittedly came to be

lodged after a period of seven days of the alleged incident. Explanation

rendered on record by the victim-prosecutrix on account of delay is not

at all plausible because mere infliction of injury on the cheek of the victim-

prosecutrix could not be a ground for her to not to lodge report for seven

days, rather lodging of report at the first instance would have helped her

establishing case against the bail petitioners. Allegations contained in FIR

No. 0033 (supra) persuades this Court to agree with submissions made by

the learned Senior counsel that victim-prosecutrix is in habit of falsely

implicating the people. Moreover, having noticed age of victim-

prosecutrix, this Court is convinced and satisfied that she is/was fully

capable of understanding the consequences of her being in the

company of the bail petitioners, with whom admittedly, she of her own

volition went in a vehicle. 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 prosecution, but at this stage, this

21/10/2019 20:26:10 :::HCHP
6

Court having perused material available on record, sees no reason to let

the bail petitioners incarcerate in jail for an indefinite period.

.

6. Repeatedly, it has been held by the Hon’ble Apex Court as

well as this Court that till the time, guilt of individual is not proved in

accordance with law, he/she is deemed to be innocent and in the case

at hand also, guilt, if any, of the bail petitioners is yet to be proved in

accordance with law by the prosecution by leading cogent and

convincing evidence. No material has been placed on record suggestive

of the fact that in the event of bail petitioners being enlarged on bail,

they may temper with evidence or flee from justice. Moreover, bail

petitioners being local residents of the area shall always be available for

investigation/trial as and when called as has been fairly stated by the

learned counsel or the petitioners.

7. 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

21/10/2019 20:26:10 :::HCHP
7

punishment which conviction will entail, character of the accused,

circumstances which are peculiar to the accused involved in that crime.

.

8. 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
bail to an unconvicted person for the propose of giving him a

taste of imprisonment as a lesson.”

9. 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

21/10/2019 20:26:10 :::HCHP
8

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.”

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

11. Reliance is placed on judgment passed by the Hon’ble

Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat,

(2017) 2 SCC 731, relevant para whereof has been reproduced herein

below:-

“11. This Court has consistently recognised the right of the
accused for a speedy trial. Delay in criminal trial has been held to
be in violation of the right guaranteed to an accused

21/10/2019 20:26:10 :::HCHP
9

under Article 21 of the Constitution of India. (See: Supreme
Court Legal Aid Committee v. Union of India, (1994) 6 SCC
731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616)
Accused, even in cases under TADA, have been released on bail

.

on the ground that they have been in jail for a long period of time
and there was no likelihood of the completion of the trial at the

earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC
252 and Babba v. State of Maharashtra, (2005) 11 SCC 569).

12. 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 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

21/10/2019 20:26:10 :::HCHP
10

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 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

21/10/2019 20:26:10 :::HCHP
11

as noticed by this Court in In Re-Inhuman Conditions in 1382
Prisons.

13. Consequently, in view of the above, order(s) dated

.

15.10.2019, passed by this Court, is made absolute, subject to the

following conditions:

a. They shall make themselves 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. They shall not tamper with the prosecution evidence nor hamper the
investigation of the case in any manner whatsoever;

c. They shall not make any inducement, threat or promises to any
person acquainted with the facts of the case so as to dissuade him
from disclosing such facts to the Court or the Police Officer; and
d. They shall not leave the territory of India without the prior permission of
the Court.

e. They shall hand over their passports, if any, to the Investigating

Agency.

14. It is clarified that if the petitioners misuse their liberty or

violate any of the conditions imposed upon them, 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 cases and shall remain confined to

the disposal of these applications alone.

The bail petitions stand disposed of accordingly.

Copy dasti.

21st October, 2019 (Sandeep Sharma),
manjit Judge

21/10/2019 20:26:10 :::HCHP

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation