IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MP (M) No. 1497 of 2019 Decided on August 20, 2019 . [ENTITY] Petitioner Versus [ENTITY] Respondent Coram: The 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 Advocates General with Mr. [ENTITY], Deputy Advocate General. ASI [ENTITY], I/O Police Station Sadar, Shimla, Himachal Pradesh. [ENTITY], J. (Oral)
Bail petitioner, [ENTITY], who is behind the bars since 29.7.2019, has approached this Court in the instant proceedings filed under [SECTION] [ACT], for grant of regular bail in FIR No. 159, dated 19.7.2019, under [SECTION] and [SECTION] [ACT] and [SECTION] of [ACT], registered with Police Station, Sadar, Shimla, Himachal Pradesh.
2. Sequel to order dated 6.8.2019, ASI [ENTITY] has come present with the record. Mr.[ENTITY], learned Additional Advocate General has also placed on record status Whether reporters of the local papers may be allowed to see the judgment?
report prepared by the investigating agency on the basis of investigation carried out by it. Record perused and returned.
3. Perusal of record reveals that on 29.7.2019, Police Post Lakkar Bazaar, Shimla, having received information that a girl (victim-prosecutrix) was admitted in the Hospital after abortion, got the statement of the victim-prosecutrix recorded under [SECTION] [ACT], wherein she stated that though she (victim-
prosecutrix) belongs to Sikkim, but she passed her 9th class examination from Senior Secondary School, Sarahan, whereafter, she came to her sister at Shimla in February, 2018, for studying in Class X. She further alleged that on 15.8.2018, she came in contact with the bail petitioner, whereafter they were in constant touch for considerable time. Victim-prosecutrix disclosed that her sister caught her talking to the bail petitioner, as such, refused to keep the victim-prosecutrix with her. Victim-prosecutrix is stated to have gone to Sarahan, during which period also, bail petitioner used to meet her. Victim-prosecutrix further stated that the bail petitioner had assured her that he would marry her. In March, 2019, victim-prosecutrix met bail petitioner at Sanjauli, Shimla, where they stayed in the room of a friend for 5-6 days. Allegedly, the bail petitioner hired a room at Shanan and started living there with the victim-prosecutrix. Victim-prosecutrix alleged that in the month of April, 2019, bail petitioner developed physical relations with her, as a consequence of which she became pregnant.
4. On 14.7.2019, allegedly the bail petitioner administered some medicine to victim-prosecutrix for abortion but due to excessive blood loss, she was rushed to the Hospital.
On the basis of aforesaid statement made by victim-prosecutrix, FIR in question was lodged against the bail petitioner on 29.7.2019 and since then, he is behind bars. Police also got statement of victim-prosecutrix recorded under [SECTION] [ACT], in the court of learned Judicial Magistrate 1st Class, Shimla, wherein she stated that she was living with the bail petitioner of her own volition and without there being any external pressure and whatever has happened, has happened with her consent.
5. Mr. [ENTITY], learned Additional Advocate General, on the instructions of the Investigating Officer, while fairly acknowledging the factum with regard to completion of investigation, contended that though nothing is required to be recovered from the bail petitioner, but, keeping in view the gravity of the offence alleged to have been committed by the bail petitioner, his prayer for grant of regular bail deserves to be rejected. Mr. [ENTITY] further contended that though there is ample evidence available on record that the bail petitioner taking undue advantage of innocence and minority of the victim-prosecutrix, not only sexually assaulted her, but also made her to terminate the pregnancy, but, even if it is assumed that the victim-
prosecutrix was a consenting party, no benefit can be extended to .
the bail petitioner because, consent, if any, of a minor, is immaterial, as has been held by Hon'ble Apex Court in a catena of judgments.
6. Mr. [ENTITY], learned counsel appearing for the bail petitioner, while refuting aforesaid contentions having been made by learned Additional Advocate General, contended that bare perusal of statement of victim-prosecutrix recorded under [SECTION] [ACT], clearly reveals that she of her own volition and without there being any external pressure, joined the company of the bail petitioner. Mr. [ENTITY] further contended that victim-
prosecutrix is a major and has already solemnised marriage with the bail petitioner. He further informed this Court that report, if any, of sexual assault never came to be lodged at the behest of victim-prosecutrix, who, of her own volition and without there being any external pressure, being legally wedded wife of the bail petitioner, was living with him at Shanan. He further contended that victim-prosecutrix is residing with her in-laws at Village Ishwa, Post Office Koti, Tehsil Arki, District Solan, Himachal Pradesh, as such, present bail petitioner, who has been falsely implicated in the case, may be ordered to be enlarged on bail.
7. Before adverting to the factual matrix of the case, it may be noticed here that this Court, having noticed aforesaid submissions made by Mr. [ENTITY], also caused presence of the victim-prosecutrix in the court, who otherwise had come present .
alongwith her in-laws i.e. parents of the bail petitioner. She, on oath, stated before this court that she of her own volition and without there being any external pressure has come to the Court.
She stated that she is married to the bail petitioner and was living happily with him at Shanan for considerable time. She stated that bail petitioner has not committed any wrong with her and as such, no action be taken against him. She also stated that at present, she is living with parents of bail petitioner, who is behind bars. She also stated that medicine for abortion was not administered to her by bail petitioner, rather, she of her own took the same. Her statement is taken on record. Victim-prosecutrix is identified by the Investigating Officer in the Court.
8. Having heard learned counsel for the parties and perused the material available on record, especially statements of the victim-prosecutrix recorded by the Police, before the Magistrate as well as before this Court, this Court finds that the victim-prosecutrix, of her own volition and without there being any external pressure, was living with the bail petitioner for quite considerable time and during this period, they developed physical relations also. Victim-prosecutrix in her statement recorded under [SECTION] [ACT], has stated that she of her own volition was living with the bail petitioner and whatever has happened is with her consent. As has been noticed herein above, victim-
prosecutrix has categorically stated before this Court that she .
was not administered medicine, if any, for abortion by her husband, rather, she herself took the medicine.
9. Leaving everything aside, as per statement of victim-
prosecutrix as well as her in-laws, who are present in court, marriage inter se victim-prosecutrix and bail petitioner stands solemnised in Sikkim. Mother of the victim-prosecutrix, who is also present in court, also stated that marriage inter se victim-
prosecutrix and bail petitioner stands solemnised in the presence of family members.
10. Be that as it may, though as per Senior Secondary School Certificate issued by Senior Secondary School, Totu, date of birth of the victim-prosecutrix is 12.4.2003, meaning thereby she was 16 years of age at the time of alleged incident, but having noticed the conduct of the victim-prosecutrix, which is evident from her statements recorded under [SECTION] and [SECTION] and before this Court, this Court has reason to believe that victim-
prosecutrix is/was capable of understanding the consequences of her being in the company of bail petitioner.
11. Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court in the totality of evidence collected on record by the investigating agency but having noticed aforesaid glaring aspects of the matter, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially .
when guilt, if any, of the bail petitioner is yet to be determined in the totality of the evidence collected on record by the prosecution.
12. 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/her guilt is yet to be 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.
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."
13. By now it is well settled that gravity alone cannot be a 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 rupon 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."
14. 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.
15. 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 rpunishment 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 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."
16. 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.
17. In view of above, bail petitioner has carved out a case for himself. Present petition is allowed and bail 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 Chief Judicial Magistrate concerned/Illaqua Magistrate, besides the 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.
18. 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.
19. 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 petition alone.
The petition stands accordingly disposed of.
Copy dasti.
([ENTITY]) Judge August 20, 2019 (vikrant)