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Sonu @ Situ vs State Of Himachal Pradesh on 17 March, 2020

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. MP (M) No. 366 of 2020

.
Decided on 17th March, 2020

—————————————————————————–
Sonu @ Situ …Petitioner
Versus

State of Himachal Pradesh …Respondent
—————————————————————————–
Coram:
The Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting?1
—————————————————————————–
For the petitioner Mr. Satish Sharma and Mr. P.L.
Sharma, Advocate.
For the respondent
r Mr. Sudhir Bhatnagar, Addl. A.G
with Mr. Kunal Thakur, Dy. A.G

an Mr. Sunny Dhatwalia, Asstt.
A.G.
ASI Pradeep Kumar, Police
Station, Sadar, Jubbal, District

Shimla, Himachal Pradesh
—————————————————————————–
Sandeep Sharma, J. (Oral)

Bail-petitioner namely Sonu @ Situ who is behind

the bars since 9th October, 2019 has approached this Court in

the instant proceedings filed under Section 439 Cr.P.C,

praying therein for grant of regular bail in FIR No. 80/2019

dated 9.10.2019 under Section 376 IPC and Sections 4 and 6

of Protection of Children from Sexual Offences Act, registered

at Police Station, Jubbal, District Shimla, H.P

2. Sequel to order dated 28.2.2020, ASI Pradeep

Kumar has come present with the record. Mr. Kunal Thakur,

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

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2

learned Deputy Advocate General has also placed on record

status report prepared by the investigating agency on the basis

.

of investigation carried out by it. Record perused and returned.

3. Status report/record reveals that on

9.10.2019 victim-prosecutrix (name withheld) lodged a

complaint at Police Station, Jubbal stating therein that she

came in contact with the bail-petitioner three years back and

since then they had been meeting each other frequently. She

alleged that the bail-petitioner used to persuade her for

solemnizing marriage with him. She also stated that two

months back, bail-petitioner had provided one mobile phone to

her. She also stated that the bail-petitioner used to come to her

school at Kuddu occasionally to meet her. She alleged that on

9th October, 2019 bail petitioner gave her telephone call and

asked her to come near Kuddu temple. She stated that on the

aforesaid date, she after getting ready for school went to near

Kuddu temple, where allegedly bail-petitioners developed

physical relations with her. She stated that she remained in the

company of bail-petitioner till 2.30 p.m., whereafter she asked

the bail-petitioner to solemnize marriage but he refused to take

her to his home. She alleged that after having reached home,

she disclosed this incident to her aunt, who further disclosed

the same to her mother. On the basis of aforesaid statement,

police got the victim-prosecutrix medically examined at CHC

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Rohroo. On the same day, police also got statement of victim-

prosecutrix recorded under Section 164 Cr.P.C where she

.

virtually reiterated her initial statement given to the police

under Section 154 Cr.P.C. In the aforesaid background, FIR

detailed in above, came to be lodged against the bail-petitioner

under Section 376 IPC and Sections 4 and 6 of Protection of

Children from Sexual Offences Act.

4. Mr. Kunal Thakur, learned Deputy Advocate

General while making this Court to peruse the statement of

victim-prosecutrix recorded under Sections 154 Cr.P.C and 164

Cr.P.C made a serious attempt to persuade this Court to agree

with his contention that the bail petitioner taking under

advantage of innocence and minority of the victim-prosecutrix

repeatedly sexually assaulted her against her wishes, as such,

prayer having been made on his behalf for grant of bail be

rejected at this stage. Mr. Thakur further contended that

consent, if any, of the victim-prosecutrix is immaterial on

account of his minority.

5. Having heard learned counsel representing

the parties and perused the material available on record,

especially the statements of the victim-prosecutrix recorded

under Sections 154 Cr.P.C and 164 Cr.P.C, this Court is

convinced that the bail-petitioner and the victim-prosecutrix

had prior acquaintance and they had been meeting each other

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for last three years. Statement of victim-prosecutrix clearly

reveals that even on the date of alleged incident, she of her

.

own volition without there being any pressure from the bail-

petitioner not only went to Kuddu temple but also joined the

company of bail-petitioner. It has come specifically in the

statement of the victim/prosecutrix that the bail petitioner

wanted to solemnize marriage with her. Though, the victim-

prosecutrix in her initial statement recorded under Section 154

Cr.P.C. has no-where alleged that she was also subjected to

sexual intercourse three months back prior to the alleged

incident held on 9.10.2019, but in her subsequent statement

recorded under Section 164 Cr.P.C she took a ‘U’ turn and

alleged that prior to alleged incident, she was also subjected to

sexual intercourse three months back. However, there is no

material worth the name available on record suggestive of the

fact that complaint, if any, ever came to be lodged by the

victim/prosecutrix with regard to incident allegedly took place

three months prior to the fresh incident allegeldy held on

9.10.2019. No doubt that at the time of alleged incident the

victim-prosecutrix was 16½ years, but having noticed her

conduct, which duly reflects from her statements given to the

police as well as Judicial Magistrate, it cannot be said that she

is/was incapable of understanding the consequences of her

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being in the company of the bail petitioner, with whom she

want to solemnize the marriage.

.

6. Though the aforesaid aspects of the matter

are to be considered and decided by the learned trial Court in

the totality of evidence collected on record by the investigating

agency but having taken note of the material available on

record, especially statements of victim-prosecutrix and other

material prosecution witnesses, this Court sees no reason to let

the bail petitioner incarcerate in jail for an indefinite period

during trial, especially when he has already suffered for more

than one and a half year.

7. In the case at hand guilt, if any, of the bail

petitioner, is yet to be determined in the totality of the

evidence collected on record by the prosecution and as such

there appears to be no justification to let the bail petitioner

incarcerate in the jail during trial for indefinite period.

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 held that freedom of

an individual can not be curtailed for indefinite period,

especially when his/her guilt is yet to be 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:

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“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

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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.”

9. In Sanjay Chandra versus Central

Bureau of Investigation (2012)1 Supreme Court Cases 49,

Hon’ble Apex Court has held that gravity alone cannot be a

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.

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10. 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 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.

11. The Apex Court in Prasanta Kumar Sarkar

versus Ashis Chatterjee and another (2010) 14 SCC 496,

has laid down the various principles to be kept in mind, while

deciding petition for bail i.e. prima facie case against the

accused, nature and gravity of offence, severity of punishment,

likelihood of repeating of the offence by accused etc.

12. In view of above, bail petitioner has carved

out a case for himself. Consequently, present petition is

allowed. Petitioner is ordered to be enlarged on bail, subject to

furnishing bail bonds in the sum of Rs.1,00,000 with one local

surety in the like amount, to the satisfaction of the

Investigating Officer/learned trial Court concerned, besides the

following conditions:

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(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.

13. 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.

14. 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 petition alone.

The petition stands accordingly disposed of.

Copy Dasti.

(Sandeep Sharma)
Judge
March 17, 2020
(naveen)

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