IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. [CASE NUMBER] Decided on: 31.8.2018 . 1. [CASE NUMBER] [ENTITY] Petitioner Versus [ENTITY] Respondent 2. [CASE NUMBER] [ENTITY] Petitioner Versus [ENTITY] Respondent Coram: Hon'ble Mr. Justice [ENTITY], Judge. Whether approved for reporting? 1 For the Petitioner(s) r : Mr. [ENTITY], Senior Advocate with Mr.[ENTITY] and Mr. [ENTITY], Advocate. For the Respondent : Mr. [ENTITY], Additional Advocate General and Mr. [ENTITY], Deputy Advocate General. [ENTITY], Judge (oral):
Above named persons, who are behind the bars since 21st June, 2018, have approached this Court in the instant proceedings filed under [SECTION] of [ACT], praying therein for grant of regular bail in case FIR No. 68/18 dated 19.6.2018, under [SECTION], [SECTION], [SECTION] and [SECTION] of [ACT], registered at PS Tissa, District Chamba, HP.
2. Sequel to order dated 17.8.2018, passed by this Court, ASI [ENTITY], PS Tissa, District Chamba, HP, has come present in Court Whether the reporters of the local papers may be allowed to see the judgment?
alongwith record of the case. Record perused and returned. Mr. [ENTITY], learned Additional Advocate General, has also placed on record .
status report prepared on the basis of the investigation carried out by the investigating agency, perusal whereof suggests that on 19.6.2018, complainant/prosecutrix lodged a complaint with Superintendent of Police, Chamba, who subsequently forwarded the same to the police Station Tissa, Kullu, alleging therein that on 18.6.2018, when she was out in jungle for grazing the cattles, above named bail petitioners gave beatings to her and subsequently, sexually assaulted her on two occasions against her wishes. On the basis of aforesaid statement having been made by the complainant/prosecutrix, aforesaid FIR came to be lodged against the present petitioners and they are behind bars since 21.6.2018.
3. Learned Additional Advocate General on the instructions of the investigating officer, who is present in Court, fairly stated that investigation in the case is complete and nothing is required to be recovered from the bail petitioners. He further informed this Court that challan stands filed in the competent court of law.
4. Mr. [ENTITY], learned Senior Counsel, representing the bail petitioners, while inviting attention of this Court to the record/status report, vehemently argued that no case, if any, is made out against the bail petitioners under the aforesaid provisions of law and as such, they deserve to be enlarged on bail. While referring to the statement of the .
complainant/prosecutrix recorded under [SECTION] [ACT], Mr. [ENTITY], contended that statement given by the complainant/prosecutrix before the Magistrate is in total contradiction of her initial report given by her under [SECTION] [ACT], to the police and as such, no much reliance can be placed upon the same. Mr. [ENTITY], also invited attention of this Court to the medical evidence adduced on record by the Investigating Agency to demonstrate that nothing has come in the evidence suggestive of the fact that complainant/prosecutrix was sexually assaulted by the bail petitioners against her wishes. Mr. [ENTITY], further contended that it stands duly proved on record that bail petitioners are first cousins of the complainant/prosecutrix and they have prior animosity on account of dispute of some land. During the proceedings of the case, Mr. [ENTITY], also produced affidavit duly authorized by the notary, Sub Division Chamba, to state that after lodging of FIR mentioned herein above, complainant/prosecutrix has executed an affidavit to the effect that she was not sexually assaulted by the bail petitioners, rather she was only given beatings and she had falsely lodged FIR against the bail petitioners. Photocopy of the affidavit is taken on record.
5. Mr. [ENTITY], learned Additional Advocate General while fairly acknowledging the factum with regard to the completion of .
investigation contended that keeping in view the gravity of offence allegedly committed by the bail petitioners, they do not deserve to be shown any leniency, rather needs to be dealt with severely. While refuting the contention of learned Senior Counsel that nothing has emerged in the medical evidence adduced on record, learned Additional Advocate General while referring to the record/status report contended that final report in this regard is yet to be given by the medical officer, who had initially examined the complainant-prosecutrix. Learned Additional Advocate General further contended that though there appears to be some variations in the statement given by the complainant/prosecutrix under [SECTION] [ACT], but since that statement of her has been recorded before the Magistrate, it is required to be considered and same cannot be rejected solely on the ground that complainant/ prosecutrix had given altogether different version in her initial statement recorded under [SECTION] of [ACT]., on the basis of which, formal FIR came to be registered. As far as affidavit placed on record is concerned, Mr. [ENTITY], contended that they have no knowledge with regard to the same.
6. Having heard learned counsel for the parties and perused record, this Court finds considerable force in the argument of learned Senior Counsel, representing the petitioners-accused that there are material contradictions in the statement of complainant/prosecutrix in her .
initial statement recorded under [SECTION] [ACT] vis vis her statement recorded under [SECTION] [ACT]. Similarly this Court finds that nothing has emerged against the bail petitioners in the report submitted by the RFSL Dharamshala. True it is that final opinion is yet to bet given by the Medical Officer, but having carefully perused report of RFSL, this Court is of the view that no concrete evidence has been collected on record at this stage by the Investigating Agency suggestive of the fact that the complainant/prosecutrix was sexually assaulted by the bail petitioners against her wishes.
7. Leaving everything aside, there is ample evidence available on records suggestive of the fact that that petitioners are the first cousins of the complainant/ prosecutrix and they have prior animosity on account of dispute over the joint land. Apart from above, affidavit placed on record, which has been alleged to be executed by the complainant/prosecutrix further corroborates the version put forth by the accused that they have been falsely implicated on account of some family dispute.
8. Having gone through the material available on record, this Court sees no reason to keep the bail petitioners behind the bars for an indefinite period, especially when guilt, if any, of them is yet to be proved in accordance with law. Apprehension expressed by learned Additional .
Advocate General that bail petitioners may flee from justice can be met by putting them to stringent conditions. Repeatedly, it has been held by the Hon'ble Apex Court as well as this Court that freedom of an individual is utmost importance and cannot be curtailed for an indefinite period.
9. Needless to say, guilt, if any, of the bail petitioners is yet to be proved in accordance with law by the prosecution by leading cogent and convincing evidence. It is well settled that till the time a person is not found guilty, one is deemed to be innocent. Recently, 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 Code of .
Criminal Procedure, 1973.
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.
10. 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.
11. 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."
12. In [PRECEDENT], The 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 or 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 to 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 ad 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 the 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. 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) r danger, of course, of justice being thwarted by grant of bail.
14. In view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court, petitioners have carved out a case for grant of bail, accordingly, the petitions are allowed and the petitioners are ordered to be enlarged on bail in aforesaid FIR, subject to their furnishing personal bond in the sum of Rs. 1,00,000/- each with one local surety each in the like amount to the satisfaction of concerned Chief Judicial Magistrate/JMIC/trial Court, with following conditions:
(a) They shall make themselves 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) They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(c) They 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) They shall not leave the territory of India without the prior permission of the Court.
15. It is clarified that if any of the petitioner misuses the liberty or violate 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 this application alone.
The petitions stand accordingly disposed of.
Copy dasti.
31st August, 2018 ([ENTITY]), manjit Judge