Babu Ram vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner namely, Babu Ram, who is behind the bars since 2nd July, 2020, has approached this Court in the instant proceedings filed under Section 439 Cr.P.C for grant of regular bail in case FIR No.78/2020, dated 29.6.2020, registered at police Station, Dehra, District Kangra, H.P. under Sections 366 and 376 of IPC.

Perusal of status report filed by the respondent-State in terms of order dated 29.10.2020, reveals that on 29.6.2020, victim/prosecutrix (name withheld to protect her identity), lodged a complaint at police Station, Dehra, District Kangra, H.P., alleging therein that in the month of December, 2019, bail petitioner met her in a marriage at Delhi. She alleged that bail petitioner proposed her for marriage and on the pretext of marriage sexually assaulted her twice or thrice in the month of November and December 2019, whereafter bail petitioner went back to his native place in Himachal Pradesh. She disclosed to the police that in the month of January, 2020, she alongwith her two children came to Chalali, District Kangra, H.P and started living with the bail petitioner as his wife. She alleged that in the month of March, 2020, Dhaba being run by the bail petitioner came to be closed on account of lockdown and in April, 2020 bail petitioner went to his native place on the pretext that he has to harvest the wheat crop, but thereafter neither he has come back nor has made any effort to contact her as well as her children. She stated in her aforesaid complaint that during her stay at Chalali in the Dhaba being run by the bail petitioner, she was repeatedly sexually assaulted against her wishes by the bail petitioner on the pretext of marriage and as such, appropriate action, in accordance with law, be taken against him. Besides above, complainant by way of aforesaid complaint prayed that her marriage may be solemnized with the bail petitioner and she be provided sufficient fund to return back to Delhi. In the aforesaid background, FIR, as detailed hereinabove, came to be lodged against the bail petitioner and since 2nd July, 2020 he is behind the bars.

Mr. Kunal Thakur, learned Deputy Advocate General while fairly acknowledging the factum with regard to filing of the challan in the competent court of law, contends that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of the offence alleged to have been committed by him, he does not deserve any leniency and as such, prayer having been made on his behalf for grant of bail may be rejected. While making this Court to peruse the status report, learned Deputy Advocate General made a serious attempt to persuade this Court to agree with his contention that bail petitioner taking undue advantage of adverse family circumstances of victim/ prosecutrix, not only sexually assaulted her repeatedly against her wishes, but also left her alone in pitiable condition that too with two minor children and as such, prayer having been made on his behalf for grant of bail deserves outright rejection.

Having heard learned counsel representing the parties and perused the material available on record, this court finds that as per own statement of the victim/prosecutrix she was sexually assaulted against her wishes by the bail petitioner for the first time in the months of November and December, 2019, but there is no material, worth credence, available on record suggestive of the fact that at that time complaint, if any, ever came to be lodged at the behest of the victim/prosecutrix against the bail petitioner, rather victim/ prosecutrix after aforesaid alleged incident came to village Chalali, District Kangra, H.P of her own volition to solemnize marriage with the bail petitioner. If initial statement of the victim/prosecutrix, on the basis of which, FIR came to be registered against the bail petitioner is perused in its entirety, it suggest that she after having reached Chalali, District Kangra from Delhi solemnized marriage with the bail petitioner and started residing with the him as his wife. Though, allegation of victim/prosecutrix is that the bail petitioner repeatedly sexually assaulted her on the pretext of marriage, but as has been taken note hereinabove, victim/prosecutrix after having come from Delhi had solemnized marriage with the bail petitioner and as such, allegation of her being sexually assaulted against her wishes does not appears to be correct. Since the victim/prosecutrix is major and is mother of two children aged 14 and 16 years respectively, it is difficult to conclude that she was incapable of understanding the consequences of her being in the company of the bail petitioner, who admittedly had proposed her for marriage.

During the arguments, learned Senior Counsel representing the bail petitioner invited attention of this Court to the similar complaint lodged by the victim/prosecutrix at Delhi against her landlord (Annexure P-2) to demonstrate that the victim/prosecutrix is in habit of lodging of false complaints against the innocent persons, so that some money is extracted from them. Having perused the aforesaid complaint, this Court finds that in December, 2019 victim/prosecutrix had lodged a similar complaint to the Deputy Commissioner of Police, Delhi against her landlord /owner namely, Suresh Huda that he sexually assaulted her against her wishes.

Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court on the basis of totality of evidence collected on record by the investigating agency, but having noticed aforesaid glaring aspect of the matter, this Court sees no reason to let bail petitioner incarcerate in jail for indefinite period, especially when nothing remains to be recovered from the him. Otherwise also, challan stands filed in the competent Court of law and as such, there is no justification to keep the bail petitioner behind the bars for indefinite period during the trial. Though, challan stands filed in the competent court of law, but charges are yet to be framed and as such, it can be safely concluded/inferred that considerable time would be consumed in conclusion of the trial. Since, no material, worth credence, has been led on record that in the event of bail petitioner being enlarged on bail, he may flee from justice or tamper with the prosecution evidence, it would not be in the interest of the justice to keep the bail petitioner behind the bars for indefinite period during trial, especially when his guilt, if any, is yet to be established on record.

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.

Apprehension expressed by learned Deputy Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions, as has been fairly admitted by learned counsel representing the petitioner.

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 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 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:

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

The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; 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."

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.

The Hon'ble Apex Court in Prasanta Kumar Sarkar v. 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.

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.

e. He shall surrender passport, if any, held by him.

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.

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.