IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CrMP(M) No. 11[SECTION] of 2018 Decided on October 26, 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 vice Mr. [ENTITY], Advocate. For the respondent : Mr. [ENTITY], Mr. [ENTITY] and Mr. [ENTITY], Additional Advocates General. ASI [ENTITY], I/O, Police Station Bangana, Una, H.P. [ENTITY], Judge (oral):
Bail petitioner, who is behind the bars since 22.2.2018, has approached this court in the instant proceedings under [SECTION] [ACT], praying therein for grant of regular bail in case FIR No. 27/18 dated 22.2.2018 under Ss.
363, [SECTION] and [SECTION] [ACT], and [SECTION] and [SECTION] of the [ACT], registered at Police Station, Bangana, Una, Himachal Pradesh.
2. Sequel to order dated 20.9.2018, ASI [ENTITY], has come present with the record. Mr. [ENTITY], learned Additional Advocate General has also placed Whether the reporters of the local papers may be allowed to see the judgment?
on record status report, prepared on the basis of investigation carried out by the investigating agency. Record perused and .
returned.
3. Close scrutiny of the record reveals that FIR, detailed herein above, came to be lodged at the behest of the complainant namely [ENTITY], who alleged hat her minor daughter i.e. prosecutrix has been kidnapped and sexually assaulted by the present bail petitioner. After lodging of aforesaid complaint, police recovered the prosecutrix from one tea shop at place called, 'Dhundhla'. Prosecutrix in her statement given to the police, categorically stated that she, of her own volition, had joined the company of bail petitioner and he has not committed any offence, much less, offence under [SECTION] [ACT]. Status report further reveals that the prosecutrix refused to undergo medical examination. Police also got her statement recoded under [SECTION] [ACT] before the concerned Magistrate, wherein she reiterated that she, of her own volition, had joined the company of the bail petitioner and at no point of time, he had compelled her to join his company.
Though, initially, prosecutrix had refused to under go medical examination but after lodging of FIR, detailed herein above, she was got medically examined, report whereof indicates that she was subjected to sexual intercourse. Further, the prosecutrix in her statement given before Magistrate under [SECTION] [ACT], categorically stated that bail petitioner has not committed anything wrong with her and she, of her own .
volition, had joined his company. Challan in the case stands filed in the competent Court of law and as per record made available to this court, all the material prosecution witnesses have not supported the case of the prosecution.
4. Learned counsel for the bail petitioner, while referring to the record/status report, vehemently argued that no case, if any, is made out against the bail petitioner under [SECTION] [ACT], because all the material prosecution witnesses have resiled from their initial statements given to the police. While specifically inviting attention of this court to the statement of prosecutrix recorded under [SECTION] [ACT], learned counsel representing the bail petitioner contended that it clearly suggests that the prosecutrix was not kidnapped rather, she, of her own volition, joined the company of the bail petitioner and as such, no case, if any, could be made against bail petitioner under [SECTION] [ACT].
5. During proceedings of the case, learned counsel for the bail petitioner also made available certified copies of the statements/ depositions having been made by the material prosecution witnesses during trial to demonstrate that no case is made out against the bail petitioner and as such, he deserves to be enlarged on bail.
6. Mr. [ENTITY], learned Additional Advocate General, on the instructions of the Investigating Officer, who is .
present in the court, fairly acknowledged that all the material prosecution witnesses i.e. complainant, prosecutrix, father and aunt of prosecutrix, have resiled from their initial statements and as such, possibility of bail petitioner being convicted in the present case is very bleak and remote. Mr. [ENTITY], learned Additional Advocate General also contended that though the record clearly suggests that the prosecutrix at the time of alleged accident was a minor but since she has categorically stated before the court below that no wrong has been committed upon her in the alleged incident and she, of her own volition, had joined the company of the bail petitioner, there is no likelihood of bail petitioner being punished for the committed offence punishable under [SECTION] [ACT] and [SECTION] of [ACT].
7. I have heard the learned counsel for the parties and gone through the record carefully.
8. Having heard the learned counsel representing the parties and perused the material available on record especially, statements/depositions having been made by the material prosecution witnesses during trial, which are taken on record and made part of the case, file, this court finds that the chances of bail petitioner being convicted in the present case, are very bleak/remote. In the case at hand, prosecutrix from day one has maintained that the bail petitioner has not .
committed any wrong upon her and she, of her own volition, had joined his company, as such, this court sees no reason to allow the bail petitioner to incarcerate in jail for indefinite period, especially when he has already suffered for more than eight months. Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court, in the totality of the evidence available on record, but this court having perused record sees no reason to keep the bail petitioner behind the bars for indefinite period and as such, he deserves to be enlarged on bail.
9. 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."
10. 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 rcircumstances, 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."
11. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC [SECTION]8, 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 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 rthat 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."
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 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.
13. 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.
14. 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.
15. 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.
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 instant petition alone.
The petition stand accordingly disposed of.
Copy dasti.
([ENTITY]) Judge October 26, 2018 (vikrant)