IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 1522 of 2019 . Date of Decision: 1.10.2019 [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] & Mr. [ENTITY], Additional Advocate Generals, with Mr. [ENTITY], Deputy Advocate General. [ENTITY], Judge (oral):
Bail petitioner namely, [ENTITY], who is behind the bars since 24.3.2019, has approached this Court in the instant proceedings filed under [SECTION] of the [ACT], praying therein for grant of regular bail in case FIR No.31/2019, dated 23.3.2019, under [SECTION], [SECTION] of [ACT] and [SECTION] of the [ACT],registered at police Station, Aut, District Mandi, Himachal Pradesh.
Whether the reporters of the local papers may be allowed to see the judgment?
2. Pursuant to order dated 16.9.2019 ASI [ENTITY], police Station, Aut, District Mandi, H.P., has come .
present alongwith the record. Mr. [ENTITY], learned Additional 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. Record made available to this Court reveals that complainant/prosecutrix No.1, who happened to be mother of victim/prosecutrix No.2 (name withheld to protect her identity), lodged a complaint at police Station, Aut, District Mandi, H.P., alleging therein that on 15.3.2019, bail petitioner came to her house at 9:00 AM and asked her and her minor daughters to accompany him to Shivratri fair at Mandi. She further stated that she alongwith her two daughters went to Mandi in a car being driven by bail petitioner, but when vehicle reached at place called Aut, bail petitioner allegedly asked prosecutrix No.1 and her minor daughter to get down and wait for some time. As per complainant, bail petitioner alongwith her another minor daughter victim prosecutrix No.2 went to some other place and in the meanwhile, co accused [ENTITY] came on the motorcycle and took the complainant and her another minor daughter at the residence of [ENTITY] at Balu, where bail petitioner and other .
victim/prosecutrix were already present. Complainant further alleged that her elder daughter (prosecutrix No.2) disclosed her that bail petitioner sexually assaulted her against her wishes. Complainant also alleged that coaccused [ENTITY] also behaved indecently by making an attempt to outrage her modesty. In the aforesaid background, a case under [SECTION], [SECTION] [ACT] and [SECTION] of [ACT], came to be registered against the bail petitioner and coaccused [ENTITY].
Bail petitioner is behind the bars since 24.3.2019, whereas co accused [ENTITY] against whom case under [SECTION] of [ACT] was registered stands enlarged on bail.
4. Mr. [ENTITY], learned Additional Advocate General, while fairly stating that challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner, contended that keeping in view the gravity of offence alleged to have been committed by the bail petitioner, his prayer for grant of bail deserves to be rejected out rightly. Learned Additional Advocate General further contended that though there is ample evidence available on record suggestive of the fact that petitioner taking undue advantage of the innocence and minority of prosecutrix .
No.2 sexually assaulted her against her wishes, but even if it is presumed that victim/prosecutrix alongwith the complainant joined the company of the bail petitioner and co accused [ENTITY] of their own volition, consent, if any, is immaterial in view of the age of prosecutrix No.2. Lastly, learned Additional Advocate General contended that matter is already fixed for consideration on charge and it would not be in the interest of justice to release the bail petitioner on bail, who in the event of his being enlarged on bail may not only flee from justice, but may also dissuade the prosecution witnesses from deposing against him.
5. Having heard learned counsel representing the parties and perused the material available on record, especially statement made by the prosecutrix under [SECTION] [ACT], this Court is of the view that complainant and victim/prosecutrix No.2 had prior acquaintance with the bail petitioner. It has specifically come in the statement of the complainant/prosecutrix No.1 that engagement of prosecutrix No.2 with the bail petitioner had taken place one year back, but marriage was only to be solemnized inter se them after the victim/prosecutrix's attaining the age of majority.
Similarly,this Court finds that complainant/prosecutrix No.1 alongwith her two minor daughters of their own volition and without there being any external pressure joined the company of the bail petitioner. Complainant alongwith prosecutrix No.2 went in the car of the bail petitioner to see the Shivratri festival at Mandi, but interestingly, complainant permitted her minor daughters to get down alongwith the bail petitioner at place called Aut. It has specifically come in the statement of the complainant that after sometime she alongwith her other minor daughter also went to the house of [ENTITY] at Balu where bail petitioner and her minor daughter/prosecutrix No.2 were already present. Though, as per the statement of complainant/prosecutrix No.1, her daughter disclosed her that she has been sexually assaulted against her wishes by the bail petitioner, but it is not understood that why thereafter complainant alongwith her minor daughters stayed at the house of [ENTITY] for 4 more days because admittedly she came back to her house on 19.3.2019. There is no plausible explanation rendered on record by the complainant that why she failed to lodge the complaint against the bail petitioner and other coaccused for almost seven days, rather as per own .
statement of the complainant she alongwith her minor daughters remained at the house of [ENTITY] at Balu for 4 days after the alleged incident. It has been nowhere alleged by the complainant that she alongwith her minor daughters were illegally confined in the house of [ENTITY], rather report filed under [SECTION] [ACT] suggests that at the time of alleged incident complainant/prosecutrix No.1 alongwith her minor daughters including prosecutrix No.2 had slept in one room alongwith the bail petitioner and other coaccused [ENTITY].
6. Having carefully perused the material made available to this Court, this Court is in agreement with Sh.
[ENTITY], learned counsel representing the bail petitioner that complainant/prosecutrix alongwith her two minor daughters of their own volition joined the company of the bail petitioner and then stayed with him at the house of [ENTITY] at Balu. Medical evidence adduced on record by the Investigating Agency also not support the case of the prosecution, rather suggest something else. Victim/prosecutrix No.2 was minor at the time of alleged incident, but having noticed the conduct of the complainant as well as prosecutrix No.2, this Court is of the view that both the complainant and victim/prosecutrix .
are/were fully capable of understanding the consequences of their being in the company of the bail petitioner.
7. Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court on the basis of totality of evidence to be collected on record by the prosecution, but having noticed aforesaid glaring aspect of the matter, this Court sees no reason to let the bail petitioner incarcerate in jail for indefinite period, especially when nothing remains to be recovered from him. Bail petitioner has already suffered for more then six months. Till the time guilt of bail petitioner is not proved in accordance with law, his freedom cannot be curtailed for indefinite period, during the trial.
8. It has been repeatedly held by Hon'ble Apex Court as well as this Court in catena of cases that one is deemed to be innocent till the time his /her guilt is not proved, in accordance with law. In the case at hand, the guilt, if any, of the bail petitioner is yet to be proved, in accordance with law.
9. Recently, the Hon'ble Apex Court in [CASE NUMBER], Dataram Singh vs. State of Uttar .
Pradesh & Anr.,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 is important to r to further held that while considering prayer for grant of bail, it 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 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 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] 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 ReInhuman Conditions in 1382 Prisons
10. The Hon'ble Apex Court in [PRECEDENT]; 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."
11. 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.
12. The Hon'ble 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.
13. Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing personal bond in the sum of Rs. 1,00,000/ (Rs. One lac) with one local surety in the like amount, to the satisfaction of the learned 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 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.
14. It is clarified that if the petitioner misuses his 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.
15. 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 bail petition stands disposed of accordingly.
Copy dasti.
([ENTITY]), Judge 1st October, 2019 (shankar)