Arun Kumar And Others vs State Of H.P

Sandeep Sharma, J

(Through Video Conferencing)

Sequel to order dated 07.07.2021 and 13.7.2021, whereby petitioners were ordered to be enlarged on bail, in the event of their arrest in FIR No. 33

of 2021, dated 06.07.2021, registered at Police Station, Shillai, District Sirmour (H.P.), under Sections 363 & 376 of the Indian Penal Code and Section

4 of the POCSO Act, respondent-State has filed status report, which is taken on record. SI Mast Ram has also come present with record.

Learned Additional Advocate General, while fairly acknowledging the factum with regard to joining of investigation by both the bail petitioners, in

terms of orders dated 7.7.2021 and 13.7.2021, contends that though nothing remains to be recovered from the bail petitioners, but keeping in view the

gravity of offences alleged to have been committed by them, they do not deserve any leniency. He further contends that there is ample evidence

suggestive of the fact that bail petitioner Arun Kumar, firstly with the help and aid of another bail petitioner Ajay Kumar, made victim/prosecutrix, who

is minor, to elope with him and thereafter sexually assaulted her against her wishes and as such both the accused do not deserve any leniency.

According to the status report as well as record produced before this Court, victim/prosecutrix (name withheld), aged 17. years 6 months, got her

statement recorded under Section 154 Cr.PC at Police Station, Shallai, District, Sirmour, H.P., alleging therein that on 30.06.2021, bail petitioner Arun

Kumar called her on mobile No.7018206138 and asked her to come near the road. She alleged that bail petitioner Arun told her that he wants to

solemnize marriage with her, but since she was less then 18 years of age, she refused to solemnize marriage and asked Arun Kumar to wait for

sometime. Victim/prosecutrix further disclosed in her statement recorded under Section 154 Cr.PC that bail petitioner Arun Kumar made her to sit in

a car forcibly, which was being driven by another bail petitioner Ajay Kumar and thereafter, sexually assaulted her against her wishes. She also

disclosed to the police that bail petitioner Arun Kumar took her to his house where she and bail petitioner Arun slept in one room and bail petitioner

sexually assaulted her against her wishes.

In the aforesaid background, FIR detailed hereinabove, came to be lodged against both the bail petitioners. As per status report, investigation in this

case is complete and nothing remains to be recovered from the bail petitioners. It is quite apparent from the initial statement of the victim/prosecutrix

recorded under Section 154 Cr.P.C as well as subsequent statement given by her before learned Judicial Magistrate under Section 164 Cr.P.C that

victim/prosecutrix had prior acquaintance with the bail petitioner Arun Kumar, with whom she was in constant touch for almost 1 year. The aforesaid

statements having been given by victim/prosecutrix, nowhere suggest that on the date of alleged incident, she was forcibly made to sit in the car by

bail petitioner Arun Kumar, rather she after having received telephonic call from bail petitioner Arun Kumar herself, of her own volition, went to the

road and thereafter to the house of bail petitioner Arun Kumar.

Allegation against bail petitioner Ajay Kumar is that a vehicle, in which, victim/prosecutrix was forcibly taken by bail petitioner Arun Kumar was

being driven by him, however, it is not understood that in case, victim/prosecutrix was forcibly taken by Arun Kumar to his house, what prevented

victim/prosecutrix to disclose such facts to family members of Arun Kumar. Medical evidence produced on record by investigating agency does not

support the case of the prosecution because a bare perusal of the same nowhere suggests that victim/prosecutrix was subjected to forcible sexually

intercourse by the bail petitioner.

True, it is that at the time of alleged incident, the age of the victim/prosecutrix was 17 years 6 months, as is evident from her statements recorded

under Section 154 Cr.P.C as well as Section 164. Cr.P.C., but this Court finds it difficult to conclude that victim/prosecutrix was incapable to

understanding the consequences of having her accompanied bail petitioner Arun Kumar to his house. Similarly, there is no material on record

suggestive of the fact that bail petitioner Arun Kumar made victim/prosecutrix elope with him forcibly, rather statements of victim/prosecutrix itself

suggest that she of her own volition, without their being any external pressure, joined the company of bail petitioner Arun Kumar.

Though, aforesaid aspects of the matter are to be considered and decided by learned Court below in the totality of the evidence collected on record

by the prosecution, but having taken note of aforesaid glaring aspects of the matter, this Court sees no reason for custodial interrogation of bail

petitioners, who otherwise, in terms of orders dated 7.7.2021 and 13.7.2021, have joined the investigation. The apprehension expressed by the learned

Additional Advocate General that in the event of petitioners’ being enlarged on bail, they may flee from justice or tamper with prosecution

evidence, can. be. best. met. by. putting. the. bail. petitioners. to. Stringent conditions.`Otherwise also, Hon'ble Apex Court and this Court have

repeatedly held that till the time, guilt of an individual is proved in accordance with law, he/she is deemed to be innocent. In the case at hand guilt, if

any, of the bail petitioner, is yet to be determined in the totality of the evidence collected on record by the prosecution.

Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr 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.

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.

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 436. of the Code of Criminal Procedure, 1973. An equally soft approach to

incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.

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 Article 21 of the Constitution 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.â€​

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 Sanjay

Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; 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 Constitution 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.â€​

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.

In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held as under:

“This Court in Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40, 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 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 Article 21 of the Constitution was highlighted.â€​

The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, 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.

In view of above, bail petitioners have carved out a case for themselves. Consequently, present petitions are allowed and orders dated 7.7.2021 &

13.7.20201 are made absolute, subject to bail petitioners’ furnishing fresh bail bonds in the sum of Rs.20,000/-each with one local surety in the like

amount, to the satisfaction of the Investigating Officer, besides the following conditions:

(i). They will make themselves available for the purpose of interrogation, if so required and regularly attend the trial on each and every date of hearing

and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

(ii). They will not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

(iii). They will 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

(iv). They will not leave the territory of India without the prior permission of the Court.

It is clarified that if the petitioners misuse the liberty or violate any of the conditions imposed upon them, the investigating agency shall be free to

move this Court for cancellation of the bail.

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

these petitions alone.

The petitions stand accordingly disposed of.

Copy Dasti.