IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CrMP(M) No. 652 of 2018
Decided on May 29, 2018
__

.
Vyaso Ram … 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. Vijay Chaudhary, Advocate.

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

ASI Subhash Kumar, Police Station,

Tissa, Chamba, Himachal Pradesh.
__
Sandeep Sharma, Judge (oral):

By way of instant bail petition filed under Section

439 CrPC, prayer has been made for grant of regular bail in

case FIR No. 103/17 dated 26.9.2017 under Sections 354-A

and 376C(3) IPC and Sections 6 and 10 of Protection of

Children from Sexual Offences Act, registered at Police Station,

Tissa, District Chamba, Himachal Pradesh.

2. Sequel to order dated 25.5.2018, ASI Subhash

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

learned Additional Advocate General has also placed on record

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

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status report, prepared on the basis of investigation carried out

by the investigating agency. Record perused and returned.

3. Facts as emerge from the record/status report are

.

that on 26.9.2017, Chairperson, Child Welfare Committee,

Chamba, District Chamba, Himachal Pradesh and District

Child Protection Officer, Chamba, filed a complaint to the

Superintendent of Police, Chamba, District Chamba, Himachal

Pradesh, alleging therein sexual harassment of

Chilli District
r Chamba,

children/inmates staying in Child Care Institution, Tissa at

Himachal Pradesh. Above

complainants alleged that it has come to the notice of the Child
noted

Welfare Committee and District Child Protection Unit that there

is apprehension of offences being committed by the staff

members of Child Care Institution, Tissa at Chilli, upon the

children,/inmates staying therein. On the basis of aforesaid

complaint, police carried out investigation and FIR detailed

herein above came to be lodged against the present bail

petitioner and other accused namely Mahinder Kumar, Tek

Chand and Jagdish Chand, who at the relevant time were

rendering their services as Cook, Safai Karamchari and House

Keeper, respectively. All the persons named herein above

including bail petitioner are behind the bars since 27.9.2017.

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4. Five girls, who were residing at Child Care

Institution, Tissa at Chilli in their statements before the

Magistrate, recorded under Section 164 CrPC had alleged that

.

the accused named herein above not only behaved indecently

with them but on many occasions tried to touch their private

parts. One of the prosecutrixes also alleged that accused

namely Mahinder Kumar tried to outrage her modesty and

sexually assault her against her wishes. It may be noticed here

that the present bail petitioner had approached this Court

earlier by way of CrMP(M) No. 1596 of 2017 for grant of regular

bail, however, same came to be dismissed as withdrawn vide

order dated 16.1.2018 (Annexure P-2).

5. Mr. Vijay Chaudhary, learned counsel representing

the petitioner, while placing on record copies of statements

made by the prosecutrixes, (five in number) before the trial

court, strenuously argued that no case is made out against the

bail petitioner because all the prosecutrixes have resiled from

their statements and have categorically stated before the trial

court that none of the accused including present bail petitioner

had ever behaved indecently or ever tried to outrage their

modesty.

6. Mr. Dinesh Thakur, learned Additional Advocate

General, after having perused the copies of statements made

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available to this Court, fairly admitted the factum with regard to

recording of statements placed on record of the court file. Mr.

Thakur, on the instructions of the Investigating Officer, who is

.

present in the court, fairly admitted that all the prosecutrixes

have resiled from their statements and have denied the

allegations contained in the FIR. Though, as per FIR, six girls

had levelled allegations against the accused including present

bail petitioner, but statements of five prosecutrixes have been

recorded before the Court.

7.

Mr. Vijay Chaudhary, learned counsel representing

the bail petitioner, while referring to the record, especially order

dated 11.4.2018, passed by trial Court, contended that since

sixth prosecutrix being mentally retarded was not able to make

statement before the Court, her statement was not recorded.

Mr. Chaudhary, also placed on record opinion rendered by the

medical board constituted by the Court to suggest that sixth

prosecutrix is suffering from moderate mental retardation (ICD-

10 F71, mental age from 6 to under 9 years) with disability of

seventy two percent (72%) permanent in nature.

8. Having carefully perused the statements made by

five prosecutrixes before the trial court, this Court finds

considerable force in the arguments of the learned counsel

representing the bail petitioner that no case is made out against

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the bail petitioner and other accused named in the FIR. Though

these prosecutrixes were declared hostile, but even in their

cross-examination, nothing material could be elicited and as

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such, this Court is persuaded to agree with the contentions of

the learned counsel representing the bail petitioner that there is

very remote/bleak possibility of conviction as far as accused

named in the FIR are concerned.

9. Interestingly, all the prosecutrixes have categorically

stated that they had not levelled any allegations against the bail

petitioner and other accused, rather they were compelled by the

Child Helpline Chamba to file complaint against accused

including present bail petitioner. When prosecutrixes were

confronted with the statements made by them before the

Magistrate under Section 164 CrPC, they categorically stated

that they had made false statements before the Magistrate, on

the askance of Child Helpline, Chamba. Further perusal of

status report made available to this Court suggests that medical

evidence adduced on record nowhere indicates sexual assault, if

any, committed upon the prosecutrixes by the accused named

in the FIR.

10. Though, aforesaid aspects of the matter are to be

considered and decided by the trial Court below on the basis of

entire evidence adduced on record by the prosecution, but

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having carefully perused the statements having been made by

the prosecutrixes, this Court sees no reason to keep the bail

petitioner behind bars for indefinite period, especially when

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guilt of the accused is yet to be proved by the prosecution by

leading cogent and convincing evidence.

11. Hon’ble Apex Court in Ranjitsingh Brahmajeetsing

Sharma v. State of Maharashtra (2005) 5 SCC 294, while

dealing with case registered under Maharashtra Control of

Organised Crime Act, 1999 (MCOCA), which also contains

stringent provisions, has categorically held that if the Court,

having regard to the materials brought on record, is satisfied

that in all probability he may not be ultimately convicted, an

order granting bail may be passed. It has been held as under:

“38. We are furthermore of the opinion that the
restrictions on the power of the Court to grant bail should

not be pushed too far. If the Court, having regard to the

materials brought on record, is satisfied that in all
probability he may not be ultimately convicted, an order
granting bail may be passed. The satisfaction of the Court

as regards his likelihood of not committing an offence
while on bail must be construed to mean an offence under
the Act and not any offence whatsoever be it a minor or
major offence. If such an expansive meaning is given, even
likelihood of commission of an offence under Section
279 of the Indian Penal Code may debar the Court from

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releasing the accused on bail. A statute, it is trite, should
not be interpreted in such a manner as would lead to
absurdity. What would further be necessary on the part of

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the Court is to see the culpability of the accused and his

involvement in the commission of an organised crime
either directly or indirectly. The Court at the time of
considering the application for grant of bail shall consider

the question from the angle as to whether he was
possessed of the requisite mens rea. Every little omission
or commission, negligence or dereliction may not lead to a

possibility of his having culpability in the matter which is
not the sine qua non for attracting the provisions of
MCOCA. A person in a given situation may not do that

which he ought to have done. The Court may in a

situation of this nature keep in mind the broad principles
of law that some acts of omission and commission on the
part of a public servant may attract disciplinary

proceedings but may not attract a penal provision.”

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 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

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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

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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.”

13. 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:-

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“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

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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.”

.

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

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

“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 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

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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

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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
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.”

15. 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.

16. 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:

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(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.

17. 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

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(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.

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

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or violate any of the conditions imposed upon him, the

investigating agency shall be free to move this Court for

cancellation of the bail.

19. 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
May 29, 2018
(vikrant)

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