IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. [CASE NUMBER] Decided on: 09.12.2019 . [ENTITY] Petitioner Versus [ENTITY] Respondent Coram: Hon'ble Mr. Justice [ENTITY], Judge. Whether approved for reporting? 1 . For the Petitioner : Mr. [ENTITY], Advocate. For the Respondent : Mr. [ENTITY] and Mr. [ENTITY], Additional Advocate Generals, with Mr. [ENTITY], Deputy Advocate General, for the State. [ENTITY], Judge (oral):
Instant bail petition under [SECTION] [ACT] has been filed by the bail petitioner, namely [ENTITY], who is behind bars since 13.6.2019, for grant of regular bail in connection with FIR No. 63/19, dated 11.6.2019, under [SECTION], [SECTION] and [SECTION] of [ACT], [SECTION] of the [ACT], and [SECTION] of [ACT], registered at P.S. Fatehpur, District Kangra, H.P.
2. Sequel to order dated 22.11.2019, SI [ENTITY], has come present alongwith records. Mr. [ENTITY], learned Additional Advocate General, has also placed on record status report prepared on Whether the reporters of the local papers may be allowed to see the judgment?
the basis of investigation carried out by the Investigating Agency. Record perused and returned.
3. It emerges from the record/status report made available to this Court that, on 11.6.2019, complainant Smt. [ENTITY] registered a complainant at PS Fatehpur stating therein that her minor daughter-
victim-prosecutrix (name withheld) has gone missing. She alleged that on 9.6.2019, at about 12:00 PM, a message from mobile No. 88945-49243 was received by her elder daughter, who read the message and asked the victim-prosecutrix about the person, who sent the message. Complainant further alleged that thereafter at 7:00pm, daughter of her brother in law informed that victim-prosecutrix had gone towards a Nalla with a bag containing cloths. She further stated that on 11.6.2019, co-accused namely [ENTITY] gave a telephonic call and informed that victim-
prosecutrix is fine and was in Chandigarh. She alleged that her brother [ENTITY] spoke to the person namely [ENTITY] and requested him to disclose the whereabouts of victim-prosecutrix, but co-accused not only threatened him rather, refused to disclose the whereabouts victim-
prosecutrix. On the basis of aforesaid complaint FIR detailed hereinabove came to be lodged under [SECTION] [ACT] at PS Fatehpur, however, on 12.6.2019, victim-prosecutrix presented herself at PS Fatehpur. Police after recording the statement of victim-prosecutrix under [SECTION] [ACT] also got her statement recorded under [SECTION] [ACT] before the Judicial Magistrate. Victim-prosecutrix stated that present bail petitioner .
had given her a call and asked her to marry, but she refused to do so on account of her age. She stated that bail petitioner called her at [ENTITY], where from he took her to Jalandhar. She alleged that at 12:00pm bail petitioner, sexually assaulted her against her wishes at Jalandhar and thereafter dropped her at Fatehpur Police Station. On the basis of aforesaid statement of victim-prosecutrix, police got the victim-prosecutrix medically examined and registered the case against the present bail petitioner under the aforesaid provisions of law.
4. After 45 days of the alleged incident, victim-prosecutrix again got her statement recorded under [SECTION] [ACT] in the court of learned [ENTITY], where she gave altogether different version by stating that her sister received message that " please Didi make [ENTITY] to speak", but she told her sister that she does not know who is he, however, her mother slapped her and thereafter she went outside her house crying. She deposed before the magistrate in her second statement made under [SECTION] [ACT] that co-accused [ENTITY] came to the spot and took her in his vehicle against her wishes. She alleged that co-accused [ENTITY] took her to Mahu Pir Temple, Chata and thereafter, sexually assaulted her against her wishes. She alleged that co-accused [ENTITY] thereafter dropped her at [ENTITY] with the bail petitioner and co-accused namely [ENTITY].
She alleged that co-accused [ENTITY] also sexually assaulted her against her wishes near School at Harnota, whereafter bail petitioner took her to his house. She deposed that on the next day, i.e 10.6.2019, she took bath and thereafter mother of the present bail petitioner provided her food. At 5:00am, bail petitioner took her to Jalandhar and thereafter sexually assaulted her against her wishes 2-3 times. On the basis of aforesaid second statement made under [SECTION] [ACT], by the victim-prosecutrix, case under the aforesaid provisions of law also came to be registered against the co-accused namely [ENTITY] and [ENTITY]. Above named co-accused stand enlarged on bail vide order dated 30.10.2019, passed by this Court in [CASE NUMBER].
5. Mr. [ENTITY], learned Additional Advocate General, while fairly admitting that challan stands filed in the competent court of law and nothing remains to recovered from the bail petitioner strenuously argued that keeping in view the gravity of offence alleged to have been committed by the bail petitioner, prayer having been made on his behalf for grant of bail deserves outright rejection. Mr. [ENTITY], while making this Court to peruse evidence collected on record by the Investigating Agency contended that bail petitioner in connivance with other co-
accused took undue advantage of innocence of the victim-prosecutrix .
and repeatedly, sexually assaulted her against her wishes. Mr. [ENTITY] contended that though material available on record clearly reveals that victim-prosecutrix was not a consenting party, but even otherwise consent, if any, of her is of no consequence as she was minor at the time of the alleged incident.
6. Having heard learned counsel for the parties and perused material available on record, especially two statements of victim-
prosecutrix made under 164 [ACT] before the Judicial magistrate, this Court is in agreement with learned counsel for the petitioner that there is no evidence worth the name available on record suggestive of the fact that victim-prosecutrix ever came to be abducted or kidnapped by the bail petitioner or other co-accused, rather she of her volition and without there being external pressure left her home. If two statements made under [SECTION] [ACT], by victim-prosecutrix are read in conjunction juxtaposing each other, there are material contradictions and inconsistencies. In the first statement made by victim-prosecutrix, there is no reference, if any, with regard to other co accused namely [ENTITY] and [ENTITY], but in subsequent statement, which definitely came to be recorded after 45 days, of the alleged incident, victim-prosecutrix introduced altogether new story by stating that apart from above named bail petitioner, co-accused [ENTITY] and [ENTITY] also sexually .
assaulted her against her wishes. As per own statement of victim-
prosecutrix, she after being sexually assaulted by [ENTITY] and [ENTITY] remained in the house of the present bail petitioner for one day, where she was also provided food by the mother of the present bail petitioner. It has specifically come in the second statement of victim-
prosecutrix under [SECTION] [ACT] that present bail petitioner took her to Jalandhar after she was sexually r assaulted against her wises by co-
accused [ENTITY] and [ENTITY]. Though victim-prosecutrix in her statement as referred herein above claimed that she raised hue and cry to save herself from the clutches of the bail petitioner and co-accused, but there is no explanation that once victim prosecutrix had reached the house of the present bail petitioner, where she was provided food by the mother of the present bail petitioner, what prevented her from disclosing the aforesaid incident to the mother of the bail petitioner. Interestingly, in the case at hand, victim-prosecutrix after being sexually assaulted against her wishes by the co-accused [ENTITY] and [ENTITY] voluntarily joined the company of bail petitioner and stayed with him at Jalandahr for one day. Moreover, version put forth by victim-prosecutrix is totally contradictory to the initial complaint made by her mother, who alleged that daughter of her brother in law informed her that her minor daughter has gone towards Nalla with bag containing cloths. She stated that after .
the incident, bail petitioner co-accused [ENTITY] informed over the phone that her daughter was at Chandigarh and she is safe. Medical evidence adduced on record by the prosecution also does not support the case of the prosecution. True it is that at the time on the alleged incident, victim-prosecutrix was 16 years, but having noticed her conduct, which is apparent from her statements given to the police as well as Judicial magistrate, it cannot be said that she was incapable of understanding consequences of her being in the company of the bail petitioner, and as such, this court having perused record is convinced that victim-prosecutrix of her own volition and without there being external pressure joined the company of the bail petitioner.
7. Though aforesaid aspects of the matter are to be considered and decided by the court below on the basis of totality of evidence collected on record by the Investigating Agency, but keeping in view the aforesaid glaring aspect of the matter, this Court is of the view that no fruitful purpose would be served in case bail petitioner is allowed to incarcerate in jail for an indefinite period, especially when he has already suffered for more than 5 months. Moreover, no material worth the name has been adduced on record suggestive of the fact that in the event of petitioner's being enlarged on bail, he may flee from justice and as such, this Court has reason to presume that petitioner being local .
resident of the area would always be available for investigation and trial as and when called by the Investigating Agency. It is well settled that one is deemed to be innocent until his/her guilt is not proved in accordance with law.
8. 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. The Hon'ble Apex Court in [PRECEDENT] has categorically held that 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.
9. The Hon'ble Apex Court in [CASE NUMBER], [PRECEDENT]., decided on 6.2.2018, has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon'ble Apex Court further held that while considering prayer for grant of bail, 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. Hon'ble Apex Court has further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid 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 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.
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 first-time 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] of the [ACT]. An equally soft approach to incarceration has been taken by Parliament by inserting [SECTION] in the [ACT].
5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an 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 [SECTION] of the [ACT] and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons.
See. [PRECEDENT], Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496 T
10. In view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court, 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 his furnishing personal bond in the sum of Rs. 2,00,000/- with one surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, 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;
(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 handover passport to the Investigating Agency.
11. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.
12. 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.
9th December, 2019 ([ENTITY]), manjit Judge