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Smt. Dharam Kaur Alias Simranjeet … vs State Of Himachal Pradesh on 12 November, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.1433 of 2018
Decided on: 12.11.2018

.

Smt. Dharam Kaur alias Simranjeet Kaur ………..Petitioner

Versus

State of Himachal Pradesh ……….Respondent

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

For the Petitioner : Mr. Ramakant Sharma, Senior Advocate
with Mr. Basant Thakur, Advocate.
For the Respondent : Mr. S.C. Sharma, Mr. Dinesh Thakur and
Mr. Sanjeev Sood, Additional Advocate
r Generals, for the State.

Sandeep Sharma, Judge (oral):

Bail petitioner namely Smt. Dharam Kaur alias Simranjeet

Kaur, who is behind bars since 16.9.2018, has approached this Court in the

instant proceedings filed under Section 439 of Cr.PC, praying therein for

grant of regular bail in connection with FIR No. 257/18 dated 13.9.2018,

under Sections 376, 342, 120-B IPC and Section 4 of POCSO Act, registered

at PS Paonta Sahib, District Sirmaur, HP.

2. Sequel to order dated 1.11.2018, passed by this Court, ASI

Vidya Saagar Negi, I/O, P.S. Paonta Sahib, District Sirmaur, HP, has come

present in Court alongwith record of the case. Mr. Dinesh Thakur, learned

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

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2

Additional Advocate General, has also placed on record status report

prepared on the basis of the investigation carried out by the investigating

.

agency. Record perused and returned.

3. Close scrutiny of the record/status report reveals that FIR

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

complainant namely Smt. Kashmir Kaur i.e. mother of the victim-

prosecutrix, who alleged that present bail petitioner allured her minor

daughter and then, got her sexually assaulted by person namely Sohan

Singh. Complainant alleged that her daughter disclosed to her that two

months’ back, bail petitioner had called her to her house on the pretext

of giving some money and thereafter, she was sexually assaulted against

her wishes by the co-accused Sohan Singh. On the basis of aforesaid

complaint, case as has been taken note herein above, was registered

against the present bail petitioner and co-accused namely Sohan Singh

on 13.9.2018 and since then, both the accused are behind the bars.

Investigation in the case is complete and nothing remains to be

recovered from the bail petitioner.

4. Mr. Ramakant Sharma, learned Senior counsel representing

the bail petitioner while inviting attention of this Court to the status

report/record vehemently argued that no case is made out against the

bail petitioner because there is no evidence available on record

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suggestive of the fact that victim-prosecutrix was forcibly taken by her

and later on compelled her to have sexual intercourse with co-accused

.

Sohan Singh. While specifically referring to the medical evidence

adduced on record by the Investigating Agency, Mr. Sharma, strenuously

argued that bail petitioner has been falsely implicated because there is

nothing to suggest in medical evidence that victim-prosecutrix was

subjected to sexual intercourse as has been alleged in FIR. He further

contended that due to prior animosity inter-se parties, frivolous complaint

has been lodged against the present bail petitioner and as such, she

deserves to be enlarged on bail. While referring to the statement of

victim-prosecutrix made under Section 164 Cr.PC., Mr. Sharma, argued

that bare conduct of prosecutrix itself suggests that she herself was in

constant touch of co-accused Sohan Singh and at no point of time, role

if any was ever played by the bail petitioner to make victim-prosecutrix

meet co-accused Sohan Singh. Mr. Sharma while referring to the medical

record of bail petitioner placed on record, further contended that

physical condition of bail petitioner is not well as she is suffering from

kidney problem and as such, it would not be safe to keep her behind the

bars during trial.

5. Mr. Dinesh Thakur, learned Additional Advocate General,

while fairly acknowledging the factum with regard to completion of

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investigation, contended that keeping in view the gravity of the offence

alleged to have been committed by the bail petitioner, she does not

.

deserve to be enlarged on bail. While refuting the contention of Mr.

Sharma that there is no medical evidence to substantiate the allegation

of victim-prosecutrix with regard to the forcible sexual assault committed

upon her, Mr. Thakur, contended that bare statement of prosecutrix itself is

sufficient to prove guilt of the bail petitioner. While referring to the

statement of prosecutrix recorded under Section 164 Cr.PC, Mr. Thakur

contended that it stands duly proved on record that present bail

petitioner taking undue advantage of innocence of the victim-prosecutrix

who is minor, allured her and then compelled her to have sexual

intercourse with co-accused Sohan Singh. He further contended that

there is no evidence available on record that there is/was prior animosity

inter-se parties and as such, there was no occasion, if any for the

complainant to lodge frivolous complaint against the present bail

petitioner.

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

through the record of the case.

7. Close scrutiny of record/status report reveals that FIR qua

the alleged incident came to be lodged after the delay of almost 2½

months and there is no explanation rendered on record that why FIR was

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not lodged at the first instance, rather statement of prosecutrix

made/recorded under Section 164 Cr.PC suggests that though at the first

.

instance, allegedly bail petitioner made victim-prosecutrix meet co-

accused Sohan Singh, but even thereafter, co-accused kept on

exploiting her. As per statement of victim-prosecutrix, she was sexually

assaulted against her wishes at her own residence. It is not understood

that why such incident never came to the notice of the complainant,

subsequently, who lodged FIR on 30.9.2018. Though victim prosecutrix in

her statement has stated that she was allured by the present bail

petitioner, but there is nothing on record suggestive of the fact that bail

petitioner had been earlier also indulging in such kind of trade/activity.

Medical evidence adduced on record also nowhere suggests that victim-

prosecutrix was subjected to sexual intercourse. At this juncture, this Court

after having carefully perused material adduced on record by the

Investigating Agency finds that apart from the statement of prosecutrix,

there is no cogent and convincing evidence collected on record by the

Investigating Agency suggestive of the fact that bail petitioner allured the

victim-prosecutrix and then compelled her to have sexual intercourse with

co-accused Sohan Singh, rather victim-prosecutrix’s own statement

suggests something otherwise. Though, aforesaid aspects of the matter

are to be considered and decided by the court below on the basis of

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totality of evidence collected on record by the prosecution, but this Court

having perused material available on record at this stage, sees no reason

.

to keep the bail petitioner behind the bars for an indefinite period. As has

been taken notice herein above, no material whatsoever, has been

placed before this Court suggestive of the fact that bail petitioner had

been indulging in such like activity earlier also and as such, her freedom

cannot be curtailed for an indefinite period. 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

petitioner is yet to be proved in accordance with law by the prosecution

by leading cogent and convincing evidence.

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

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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

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

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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.

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

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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. 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

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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.”

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)
r reasonable apprehension of the witnesses being influenced;

and

(viii) 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. 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. She shall make herself 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. She shall not tamper with the prosecution evidence nor hamper the
investigation of the case in any manner whatsoever;

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

.

Court.

14. It is clarified that if the petitioner misuses her liberty or violates

any of the conditions imposed upon her, 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 bail petition stands accordingly disposed of.

Copy dasti.

12th November, 2018 (Sandeep Sharma),
Judge

manjit

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