IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 804 of 2018
.
Date of Decision No.03.7.2018
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Shiv Kumar Another …….. Petitioners
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 petitioners: Mr. Vijay Chaudhary, Advocate.
For the respondent: Mr. S.C.Sharma and Dinesh Thakur,
Additional Advocate Generals, and Mr.
Amit Kumar Dhumal, Deputy Advocate
General.
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Sandeep Sharma, Judge (oral):
Bail petitioners, namely Shiv Kumar and Smt. Kesav
Bala apprehending their arrest in case FIR No.142 of 2018, dated
19.6.2018, under Sections 341, 323, 354 and 506 of the Indian
Penal Code (for short ‘IPC’) and Section 8 of the Protection of
Children from Sexual Offences Act, 2012 ( for short ‘POCSO’),
registered at police Station, Sadar, District Kullu, Himachal
Pradesh, approached this Court in the instant proceedings, seeking
therein prearrest bail.
1
Whether the reporters of the local papers may be allowed to see the judgment?
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2. Sequel to order dated 26.06.2018, whereby this Court
had ordered for enlargement of bail petitioners on bail in the event
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of their arrest in connection with FIR detailed hereinabove, SI Ajit
Singh, police Station, Sadar, District Kullu, has come present
alongwith the record. Mr. Dinesh Thakur, learned Additional
Advocate General, has also placed on record status report,
prepared on the basis of the investigation carried out by the
Investigating Agency. Record perused and returned.
3. Mr. Dinesh Thakur, learned Additional Advocate
General, on the instructions of the Investigating Officer, who is
present in Court, fairly states that pursuant to order dated
26.6.2018, bail petitioners have joined the investigation and are
fully cooperating with the investigating agency.
4. Close scrutiny of the record/status report, reveals that
FIR detailed hereinabvoe, came to be lodged at the behest of the
complainant/prosecutrix on 19.6.2018, wherein she alleged that on
19.6.2018, at about 3:40 PM, petitioner No.2 stopped her and gave
beatings to her. She further alleged that bail petitioner No.2
forcibly took her into the fields and tried to strangulate her.
Subsequently, petitioner No.2 called petitioner No.1, who happened
to be her son on the spot. Petitioner No.1 abused the
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complainant/prosecutrix and behaved indecently with her.
Complainant also alleged that during the scuffle, petitioner No.1
.
made an attempt to outrage her modesty and he also touched her
private parts. On the basis of aforesaid complaint, FIR, mentioned
hereinabove, came to be lodged against the bail petitioners.
5. Mr. Vijay Chaudhary, learned counsel representing the
bail petitioners while referring to the record/status report,
vehemently submits that no case is made out against the bail
petitioners and they have been falsely implicated in the instant
case and as such, they deserve to be enlarged on bail. While inviting
attention of this Court to the documents placed on record alongwith
the bail petition, Mr. Chaudhary, learned counsel, argues that the
complainant/prosecutrix is daughter of Smt. Phulla Kumari, who is
tenant of the bail petitioners. Since, Smt.Phulla Kumari failed to
pay the rent qua the house rented to her by the bail petitioners, bail
petitioners were compelled to file proceedings under Section 14 of
the Urban Rent Control Act, 1987, for eviction in the Court of
learned Rent Controller, Kullu, District Kullu, HP and the same is
still pending. Documents placed on record further suggests that
vide Annexure P2, dated 4.12.2017, bail petitioner No.2 had filed a
complaint before the Superintendent of Police, Kullu,District Kullu,
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intimating therein uncalled behaviour of the mother of
complainant /prosecutrix, who allegedly on one pretext or other
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always made an attempt to falsely implicate the bail petitioners or
their family members. Vide aforesaid communication,bail petitioner
No.2 requested Superintendent of Police, Kullu, to issue direction to
SHO, Mahila Thana, Sarwari Kullu, to take legal action against the
respondent under law.
6. Mr. Chaudhary further invites attention of this Court
to the statement of the complainant/prosecutrix recorded under
Section 164 Cr.P.C., to demonstrate that there are lot of
inconsistencies in the two statements given by the complainant/
prosecutrix i.e. one is under Section 154 Cr.P.C and another under
Section 164 Cr.P.C. He further states that on 19.6.2018, the
complainant had actually attacked petitioner No.2 and in this
regard FIR already stands registered at police Station, Kullu.
Lastly, Mr. Chaudhary, contended that since bail petitioners have
already joined the investigation, as such, there is no occasion for
their custodial interrogation and they being local resident of the
area deserve to be enlarged on bail.
7. Learned Additional Advocate General, while fairly
acknowledging the factum with regard to joining of the
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investigation by the bail petitioners, opposes the prayer made in
the petition for grant of bail and contends that keeping in view the
.
gravity of offence allegedly committed by the bail petitioners, they
do not deserve any leniency, rather needs to be dealt with severely.
Learned Additional Advocate General further contends that though
it has come in the investigation that there is dispute pending inter
se the parties in the Court of learned Rent Controller Kullu, but
that cannot be a ground to seek bail because admittedly on
19.6.2018 complainant/prosecutrix was not only attacked by the
bail petitioners, but attempt was also made by the bail petitioner
No.1 to outrage the modesty of the complainant/prosecutrix, who is
a minor. Learned Additional Advocate General submits that there
may be certain inconsistencies in the statement recorded under
Section 164 Cr.P.C. visavis statement recorded under Section 154
Cr.P.C, but if the statement recorded under Section 164 Cr.P.C., is
carefully perused, it certainly suggest that on the date of alleged
accident bail petitioner No.2 made an attempt to kill the
complainant/prosecutrix and in this process the bail petitioner No.1
behaved indecently and as such, they do not deserve to be enlarged
on bail.
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8. Having carefully heard the learned counsel for the
parties and perused the record, it is quite apparent that there is
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prior litigation between the parties pending adjudication before the
learned Rent Controller,Kullu. It is also not in dispute that mother
of the complainant is a tenant of the bail petitioners and in past
also, they had some dispute and in that regard complaint was made
to Superintendent of Police, Kullu. It is also not in dispute that on
the date of alleged incident i.e. on 19.6.2018, petitioner No.2 also
filed FIR No. 143 of 2018, dated 19.6.2018 under Sections 341, 323,
504 and 506 of IPC against the complainant and her mother.
During investigation in the aforesaid FIR, it has emerged that bail
petitioner No.1, who happened to be son of petitioner No.2, was not
present on the spot on the date of alleged accident. Similarly, this
Court finds considerable force in the arguments of Mr. Vijay
Chaudhary, learned counsel that there is an attempt on the part of
the complainant to make major improvements in her statement
recorded under Section 164 Cr.P.C., because admittedly, certain
new facts have been mentioned in statement recorded under
Section 164 Cr.P.C, which were otherwise not disclosed by the
complainantprosecutrix at the time of her initial statement
recorded under Section 154 Cr.P.C. Moreover, at this stage, there
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is no direct or indirect evidence adduced on record to substantiate
the allegations raised by the complainant/prosecutrix or her
.
mother.
9. True, it is that as per the medical evidence adduced on
record, Medical Officer has opined that manhandling and sexual
assault of victim cannot be ruled out, but as has been noticed
hereinabove, on 19.6.2018, the complainant had scuffle with
petitioner No.2 and as such, possibility of complainant having
suffered injury, as pointed out by the Medical Officer in the scuffle
allegedly took place between petitioner No.2 and the complainant
cannot be ruled out. Though, aforesaid aspects of the matter are to
be considered and decided by the learned court below on the basis of
the evidence, if any, collected on record by the prosecution,
however, at this stage, this Court taking note of the fact that the
bail petitioners have already joined the investigation and are fully
cooperating with the investigating agency, sees no reason for their
custodial interrogation. Moreover, it has been informed that the
investigation is almost complete and nothing is required to be
recovered from the bail petitioners and as such, this Court sees no
reason to keep the bail petitioners behind the bars during the trial.
It is not in dispute that both the bail petitioners are local resident
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of the area and no material has been placed on record suggestive of
the fact that in the event of their being enlarged on bail, there is
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every likelihood of their fleeing from the justice.
10. By now it is well settled that freedom of an individual
is of utmost importance and cannot be curtailed for indefinite
period. Till the time guilt of accused is not proved, in accordance
with law, he is deemed to be innocent. In the case at hand, the
guilt, if any, of the bail petitioners is yet to be proved, in accordance
with law.
11. 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 categorically held that freedom of an
individual is of utmost importance and same cannot be curtailed
merely on the basis of suspicion. Hon’ble Apex Court has further
held that till the time guilt of accused is not proved, in accordance
with law, he is deemed to be innocent. The relevant paras No.2 to 5
of the judgment are reproduced 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
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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
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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 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 firsttime 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
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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
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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 ReInhuman
Conditions in 1382 Prisons
12. 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, bail is not to be withheld as a
punishment. Otherwise also, normal rule is of bail and not jail.
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.
13. The Hon’ble Apex Court in Prasanta Kumar Sarkar
v. 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 primafacie or
reasonable ground to believe that the
accused had committed the offence;
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(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.
14. Consequently, in view of the above, order dated
26.6.2018, passed by this Court, is made absolute, subject to
petitioner’s furnishing personal bond in the sum of Rs. 50,000/
with one surety in the like amount each to the satisfaction of the
Investigating Officer, with following conditions:
1. They shall make themselves 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;
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2. They shall not tamper with the prosecution
evidence nor hamper the investigation of
the case in any manner whatsoever;
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3. They shall not make any inducement,
threat or promises to any person
acquainted with the facts of the case so asto dissuade her from disclosing such facts
to the Court or the Police Officer; and
4. They shall not leave the territory of India
without the prior permission of the Court.
15. It is clarified that if the petitioners misuse the liberty
or violate any of the conditions imposed upon them, the
investigating agency shall be free to move this Court for
cancellation of the bail.
16. 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
3rd July, 2018
(shankar)
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