IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No1463 of 2017.
Decided on: 11.12.2017.
.
Surinder …….. Petitioner.
Versus
State of Himachal Pradesh. …..Respondent.
__
Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the petitioner: Mr. Anoop Chitkara Advocate with Ms.
r Sheetal Vyas, Advocate.
For the respondent: Mr. P.M. Negi, Additional Advocate
General.
ASI Nand Lal, Police Station Kandaghat,
District Solan, H.P., present along with
record.
Sandeep Sharma, Judge (oral):
By way of instant bail petition filed under Section 439
of the Code of Criminal Procedure, a prayer has been made for
grant of regular bail in case FIR No. 102/2017, dated 19.10.2017,
under Section 376 IPC, registered at Police Station, Kandaghat,
District Solan, Himachal Pradesh.
2. Sequel to order dated 4.12.2017, ASI Nand Lal, Police
Station, Kandaghat, District Solan, H.P., has come present in Court
alongwith the record of the case. Mr. P.M. Negi, learned Additional
Advocate General, has also placed on record status report
1
Whether the reporters of the local papers may be allowed to see the judgment?
12/12/2017 23:06:15 :::HCHP
2
prepared on the basis of the investigation carried out by the
Investigating Agency. Record perused and returned.
.
3. Careful perusal of the record/status report, suggests
that FIR, as detailed hereinabove, came to be registered against
the bail petitioner at the behest of complainant/prosecutrix, who
alleged that on 17th October, 2017, bail petitioner came to her
house on the pretext that he was sent by her (complainant) son for
delivering the money, but bail petitioner thereafter pushed her and
sexually assaulted her against her wishes.
r Complainant also
alleged that bail petitioner had been indulging in such activities, in
the past also and in this regard, she had lodged protest/complaint
with the parents of bail petitioner as well as Ward Member.
4. Mr. Anoop Chitkara, Advocate, duly assisted by Ms.
Sheetal Vyas, learned counsel, representing the bail petitioner,
while referring to the record/status report, strenuously argued that
no case is made out against the bail petitioner under Section 376
IPC, rather it is quite apparent from the statement of the
complainant recorded under Section 164 Cr.P.C. that she had
been meeting bail petitioner in past also and they had physical
relations. While referring to medical report, placed on record, by
the Investigating Agency, Ms. Vyas, contended that complainant is
56 years old lady and there is no injury on her person. She further
stated that she has nowhere stated that she with a view to rescue
12/12/2017 23:06:15 :::HCHP
3
herself, raised any kind of alarm, which act of her itself suggests that
alleged sexual assault, if any, was with her consent. Lastly, Ms.
.
Sheetal Vyas, learned counsel, contended that bail petitioner
being local resident of the area, shall be always available for
investigation and trial and there is no likelihood of his fleeing from
justice and as such, he deserves to be enlarged on bail.
5. Mr. P.M. Negi, learned Additional Advocate General,
while opposing the aforesaid prayer having been made by the
learned counsel, representing the bail petitioner, contended that
keeping in view the gravity of offence, allegedly committed by the
bail petitioner, he does not deserve any leniency and as such,
present bail petition deserves to be dismissed. Mr. Negi, while
referring to the record, further contended that it is quite apparent
from the statement of prosecutrix that bail petitioner had been
indulging in such activities in past also and as such, his being
enlarged on bail at this stage, may not be in the interest of justice.
6. I have heard the learned counsel for the parties and
gone through the record.
7. After having carefully perused the record/status report,
especially, statement given by the complainant-prosecutrix, I am
persuaded to agree with the contentions raised by the learned
counsel, representing the bail petitioner that bail petitioner as well
as complainant-prosecutrix were known to each other and they
12/12/2017 23:06:15 :::HCHP
4
have been meeting in past also. Rather, close scrutiny of
statement given by complainant-prosecutrix itself suggests that she
.
was well known bail petitioner, who had been meeting her
frequently. There is nothing on record suggestive of the fact that
complaint if any, was ever, lodged by the complainant with regard
to previous conduct of bail petitioner either to police or to the
Gram Panchayat. Rather, even in the present case alleged
incident occurred on 17th October, 2017, whereas, FIR came to be
lodged on 19.10.2017.
8. Leaving everything aside, medical evidence adduced
on record by the prosecution, nowhere proves the allegations of
the complainant, report of the Biology and Serology Division, State
Forensic Science Laboratory, Junga, is negative qua the presence
of semen on the all exhibits of the victim and as such, DNA Profiling
was not undertaken. Though, aforesaid aspect of the matter is to
be considered and decided by the learned trial court on the basis
of the evidence, if any, adduced on record by the prosecution, but
this Court after having carefully gone through the record, sees no
reason to allow the bail petitioner to incarcerate in jail for indefinite
period, especially when his guilt is yet to be proved by the
investigating agency by leading cogent and convincing evidence.
Apart from this, nothing has been placed on record by the
prosecution, from where, it can be inferred that in the event of
12/12/2017 23:06:15 :::HCHP
5
petitioner’s being enlarged on bail, it may be difficult for the
Prosecution/Investigating Agency to secure his presence and as
.
such, bail petitioner being a local resident, deserves to be enlarged
on bail, on his furnishing appropriate security.
9. 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 ofbail. 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 calledupon. The Courts owe more than verbal respect to the
principle that punishment begins after conviction, andthat every man is deemed to be innocent until duly
tried and duly found guilty. Detention in custodypending completion of trial could be a cause of great
hardship. From time to time, necessity demands thatsome 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 liberty12/12/2017 23:06:15 :::HCHP
6upon 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 contentand 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 refusebail to an unconvicted person for the propose of
giving him a taste of imprisonment as a lesson.”
10. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5)
SCC 218, 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 observedthat deprivation of liberty must be considered a
punishment unless it is required to ensure that anaccused person would stand his trial when called upon
and that the courts owe more than verbal respect tothe principle that punishment begins after conviction
and that every man is deemed to be innocent until
duly tried ad 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 accused12/12/2017 23:06:15 :::HCHP
7has 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 caread 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, isno 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 suchprivilege, 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 Article21 of the Constitution was highlighted.”
11. 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. Petitioner is a local resident of the place mentioned in the
application and he shall remain available to face the trial and to
undergo imprisonment, if any, imposed upon him.
12/12/2017 23:06:15 :::HCHP
8
12. 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;
(viii)
reasonable apprehension of the witnesses being
influenced; and
(ix) danger, of course, of justice being thwarted by grant
of bail.
13. In view of the aforesaid discussion, 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 furnishing personal bonds in the sum of
Rs.50,000/- with one local surety in the like amount to the
satisfaction of learned Chief Judicial Magistrate concerned, 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;
12/12/2017 23:06:15 :::HCHP
9
(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.
14. 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.
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 petition stands accordingly disposed of.
Copy dasti.
(Sandeep Sharma)
Judge
11th December, 2017
(reena)
12/12/2017 23:06:15 :::HCHP