IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CrMP(M) No. 1116 of 2018
Decided on September 11, 2018
__

.
Vinod Kumar … Petitioner

Versus

State of Himachal Pradesh Respondent

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

For the petitioner : Mr. Mohan Singh, Advocate.

For the respondent : Mr. S.C. Sharma and Mr. Dinesh
Thakur, Addl. AG’s with Mr. Amit
Kumar, DAG.

ASI Madan Mohan, IO, Police

Station Kasauli, District Solan,
Himachal Pradesh.
__
Sandeep Sharma, Judge (oral):

Bail petitioner namely, Vinod Kumar, who is behind

the bars since 3.12.2017, has approached this Court in the

instant proceedings filed under Section 439 CrPC, praying

therein for grant of regular bail in case FIR No. 69 of 2017,

dated 2.12.2017, under Sections 376, 506 and 34 IPC and

Section 6 of Protection of Children from Sexual Offences Act,

registered at Police Station, Kasauli, District Solan, Himachal

Pradesh.

1

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

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2. Sequel to order dated 28.8.2018, ASI Madan Mohan,

Police Station Kasauli, District Solan, Himachal Pradesh has

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

.

Additional 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. Careful perusal of record/status report suggests that

FIR detailed herein above came to be lodged at the behest of

complainant namely Paramjeet Kaur, who alleged that her

minor daughter i.e. prosecutrix studies in Government Senior

Secondary School Chamia, District Solan, Himachal Pradesh in

plus one standard. She further stated that her daughter goes to

school in a private bus i.e. Kaushal private bus, allegedly on

28.11.2017, complainant recovered one mobile phone from the

bed of the prosecutrix, while she had gone to the school. Having

noticed details with regard to calls having been made by

prosecutrix, complainant made a call on mobile No. 78073-

01800 and found that her daughter was with a person namely

Banti i.e. present bail petitioner. Subsequently on 2.12.2017,

prosecutrix disclosed to the complainant that she knows the

bail petitioner for the last one and a half years and he had

provided her mobile phone one month ago. Allegedly,

prosecutrix disclosed to her mother (complainant) that on

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29.7.2016, bail petitioner had taken her to Hotel Anchal,

Kasauli to celebrate his birthday, where taking undue

advantage of her innocence, he sexually assaulted her against

.

her wishes. Prosecutrix also disclosed to her mother that on

29.7.2017, when bail petitioner had gone out of room, to get

some food, co-accused Tara Chand came into the room and

sexually assaulted her against her wishes. It is further alleged

that on 28.11.2017 also, bail petitioner had sexually assaulted

the prosecutrix. On the basis of aforesaid statement having

been made by the complainant under Section 154 CrPC, FIR as

taken note herein above, came to be lodged against the bail

petitioner and co-accused Tara Chand.

4. Mr. Mohan Singh, learned counsel representing the

bail petitioner, while inviting attention of this Court to record/

status report strenuously argued that there is no evidence

available on record suggestive of the fact that bail petitioner

sexually assaulted the prosecutrix against her wishes rather,

there is ample material on record suggestive of the fact that

prosecutrix of her own volition and without there being any

external pressure joined the company of bail petitioner. Learned

counsel for petitioner further contended that even if statement

of complainant is perused, it clearly reveals that prosecutrix

and bail petitioner had prior acquaintance and they had been

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meeting each other for almost one and a half years prior to

alleged incident and no such incident/complaint was ever

reported either to complainant or to the police. Learned counsel

.

further contended that as per her own statement under Section

164 CrPC, prosecutrix of her own volition had gone with the bail

petitioner to Hotel Anchal, Kasauli, and at no point of time, she

raised alarm, if any, while she was being sexually assaulted by

the bail petitioner and co-accused Tara Chand, against her

wishes. Learned counsel

for the bail petitioner

contended that alleged incident happened on 29.7.2016,

29.7.2017 and then on 28.11.2017 but FIR had been registered
further

only on 2.12.2017 and there is no explanation rendered on

record, for the delay in lodging FIR. It is only at the instance of

mother of prosecutrix (complainant) that FIR later was lodged

on 2.12.2017 that too after delay of more than one and a half

years of alleged offence. Learned counsel for the petitioner

further contended that bail petitioner is behind the bars for the

last nine months and despite there being specific notice issued

to the prosecutrix, she is not coming forward to get her

statement recorded and as such, bail petitioner is incarcerating

in jail for no fault on his part. Mr. Mohan Singh further stated

that since Challan stands presented in the competent Court of

law, there is no likelihood of tampering with the evidence by bail

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petitioner and as such, he deserves to be enlarged on bail. Mr.

Mohan Singh, Advocate further contended that this Court has

already enlarged co-accused Tara Chand on bail, vide order

.

dated 6.4.2018 passed in CrMP(M) No. 494 of 2018.

5. Mr. Dinesh Thakur, learned Additional Advocate

General, while fairly acknowledging the factum with regard to

presentation of Challan in the competent Court of law,

contended that keeping in view the gravity of offence allegedly

committed by bail petitioner, he does not deserve to be enlarged

on bail, rather needs to be dealt with severely. Mr. Thakur

contended that though record may reveal that prosecutrix had

prior acquaintance with the bail petitioner but taking note of

the fact that the prosecutrix was 16 years of age, consent, if

any, of the prosecutrix can not be a ground to enlarge bail

petitioner on bail. Mr. Thakur further contended that there is

ample evidence available on record suggestive of the fact that

bail petitioner taking undue advantage of innocence of

prosecutrix, who was minor at that time, repeatedly sexually

assaulted her against her wishes. Mr. Thakur, on the

instructions of the Investigating Officer, who is present in the

court, fairly admitted that despite there being specific notice to

the prosecutrix, she failed to appear before the court on

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1.8.2018 and now fresh notice for her presence has been issued

for 22.10.2018.

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

.

gone through the record carefully.

7. Record clearly reveals that prosecutrix had prior

acquaintance with the bail petitioner, who at the time of alleged

incident, was working as conductor in Kaushal Bus owned by

co-accused Tara Chand. Apart from above, if statements made

by prosecutrix under Section 164 CrPC and that of complainant

under Section 154 CrPC are read in their entirety, same clearly

suggest that the prosecutrix had been meeting bail petitioner

for the last one and a half years and during this period, she had

developed physical relations with him. Prior to 2.12.2017, when

FIR came to be lodged against the bail petitioner, prosecutrix

never lodged complaint, if any, either with her parents or to the

police with regard to aforesaid illegal acts of the accused. It has

specifically come in the statement of prosecutrix recorded under

Section 164 CrPC that alleged incident had happened on

29.7.2016, 29.7.2017 and 28.11.2017 and on all these

occasions, prosecutrix remained silent and never informed her

parents or the police. First incident allegedly took place on

29.7.2016 but despite that prosecutrix kept on meting bail

petitioner for almost one year, whereafter allegedly on

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29.7.2017 and 28.11.2017, prosecutrix was sexually assaulted

against her wishes but matter came to be reported to the police

only on 2.12.2017, when complainant after having discovered

.

mobile phone from the bed of prosecutrix, lodged the complaint.

8. No doubt, material available on record suggests that

at the relevant time, prosecutrix was 16 years of age but having

taken note of the aforesaid conduct of prosecutrix, this Court is

persuaded to agree with the contention of Mr. Mohan Singh,

Advocate, that the prosecutrix of her own volition and without

there being any pressure, joined the company of bail petitioner

and developed physical relations.

9. Though aforesaid aspects of the matter are to be

considered and decided by the learned trial Court on the basis

of evidence adduced on record by the prosecution but taking

note of the fact that bail petitioner is behind bars since

3.12.2017 i.e. for more than nine months, and co-accused

having been enlarged on bail, this Court sees no reason to keep

the bail petitioner behind the bars, especially when Challan

stands presented in the competent Court of law. It is also not in

dispute that despite there being a specific direction by the

learned trial Court to the prosecutrix to appear before it, she

failed to turn up to get her statement recorded and as such, on

account of delay in prosecution, bail petitioner can not be

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allowed to incarcerate in jail, for indefinite period.

Apprehension expressed by the learned Additional Advocate

General that in the event of petitioner being enlarged on bail, he

.

may tamper with prosecution evidence or flee from justice can

be met with by imposing stringent conditions upon the bail

petitioner. Needless to say, it is well settled by now that till such

time, guilt of a person is not proved, he is deemed to be

innocent. In the case at hand, guilt of bail petitioner is yet to be

proved in accordance with law.

10. 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 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

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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.”

11. 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

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

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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.”

12. In Manoranjana Sinh alias Gupta versus CBI, (2017)

5 SCC 218, Hon’ble Apex Court has held as under:

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“This Court in Sanjay Chandra vs. Central Bureau
of Investigation (2012) 1 SCC 40, 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
nor preventive. This Court sounded a caveat that
any
r 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 a
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 and 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 that grant or denial of such privilege, is

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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.”

13. 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.

14. 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;

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(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.

15. 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 surety in the like amount, to the satisfaction of the

learned trial court, 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.

16. It is clarified that if the petitioner misuses the liberty

or violates any of the conditions imposed upon him, the

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investigating agency shall be free to move this Court for

cancellation of the bail.

17. 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

September 11, 2018
(vikrant)

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