IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CrMP(M) No. 1116 of 2018 Decided on September 11, 2018 . [ENTITY] Petitioner Versus [ENTITY] Respondent Coram: Hon'ble Mr. Justice [ENTITY], Judge. Whether approved for reporting? 1 yes. For the petitioner : Mr. [ENTITY], Advocate. For the respondent : Mr. [ENTITY] and Mr. [ENTITY], Addl. AG's with Mr. [ENTITY], DAG. ASI [ENTITY], IO, Police Station Kasauli, District Solan, Himachal Pradesh. [ENTITY], Judge (oral):
Bail petitioner namely, [ENTITY], who is behind the bars since 3.12.2017, has approached this Court in the instant proceedings filed under [SECTION] [ACT], praying therein for grant of regular bail in [CASE NUMBER], dated 2.12.2017, under [SECTION], [SECTION] and [SECTION] [ACT] and [SECTION] of [ACT], registered at Police Station, Kasauli, District Solan, Himachal Pradesh.
Whether the reporters of the local papers may be allowed to see the judgment?
2. Sequel to order dated 28.8.2018, ASI [ENTITY], Police Station Kasauli, District Solan, Himachal Pradesh has come present with the record. Mr. [ENTITY], 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 [ENTITY], 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 [ENTITY] 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 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 [ENTITY] 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] [ACT], FIR as taken note herein above, came to be lodged against the bail petitioner and co-accused [ENTITY].
4. Mr. [ENTITY], 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 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] [ACT], 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 [ENTITY], 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. [ENTITY] further stated that since [ENTITY] stands presented in the competent Court of law, there is no likelihood of tampering with the evidence by bail petitioner and as such, he deserves to be enlarged on bail. Mr. [ENTITY], Advocate further contended that this Court has already enlarged co-accused [ENTITY] on bail, vide order .
dated 6.4.2018 passed in [CASE NUMBER].
5. Mr. [ENTITY], learned Additional Advocate General, while fairly acknowledging the factum with regard to presentation of [ENTITY] 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. [ENTITY] 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. [ENTITY] 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. [ENTITY], 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 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 [ENTITY]. Apart from above, if statements made by prosecutrix under [SECTION] [ACT] and that of complainant under [SECTION] [ACT] 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] [ACT] 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 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. [ENTITY], 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 [ENTITY] 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 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 [CASE NUMBER], [PRECEDENT] 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 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 [PRECEDENT]; 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 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 [ACT] 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 [PRECEDENT], Hon'ble Apex Court has held as under:
"This Court in [PRECEDENT], 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 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 [SECTION] of the [ACT] 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 [PRECEDENT], 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;
(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 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.
([ENTITY]) Judge September 11, 2018 (vikrant)