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.
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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
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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
.
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 shouldnot 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 Courtas 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 from30/05/2018 23:02:00 :::HCHP
7releasing 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.
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 considerthe 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 apossibility 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 thatwhich 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 disciplinaryproceedings 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 be30/05/2018 23:02:00 :::HCHP
8innocent 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 grantof 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 andfor 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 verbalrespect 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 unconvictedpersons 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 personalliberty enshrined in the Constitution that any
person should be punished in respect of any matter,
upon which, he has not been convicted or that inany 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 thequestion 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 been30/05/2018 23:02:00 :::HCHP
10convicted 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 observedthat deprivation of liberty must be considered a
punishment unless it is required to ensure that an
accused person would stand his trial when calledupon 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 wasunderlined that the object of bail is neither punitive
nor preventive. This Court sounded a caveat thatany imprisonment before conviction has a
substantial punitive content and it would beimproper for any court to refuse bail as a mark of
disapproval of a conduct whether an accused hasbeen 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 the30/05/2018 23:02:00 :::HCHP
11valuable 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
regulated to a large extent by the facts andcircumstances 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.”
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; and30/05/2018 23:02:00 :::HCHP
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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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