Dinender Morya vs State of Himachal Pradesh

Sandeep Sharma, J.

Bail petitioner, Dinender Morya, who is behind the bars since 22.4.2018, has approached this Court by way of instant bail petition filed under

Section 439 CrPC, seeking therein regular bail in case FIR No. 94/18 dated 18.4.2018 under Sections 323, 452, 354, 376 and 506 IPC, registered at

Police Station West, Shimla, District Shimla, Himachal Pradesh.

Sequel to orders dated 24.5.2018 and 29.5.2018, ASI Dev Raj, has come present with the record. Mr. S.C. Sharma, learned Additional Advocate

General has also placed on record status report, prepared on the basis of investigation carried out by the investigating agency. Record perused and

returned.

Close scrutiny of status report suggests that on 18.4.2018, complainant-prosecutrix filed a complaint to the Station House Officer, Police Station

West, Shimla alleging therein that she was sexually assaulted by the bail petitioner during April, 2017 to August, 2017. As per complainant, in April,

2017, bail petitioner who used to come to her house for giving tuitions to her children, recorded a video of the complainant-prosecutrix while taking

bath and on the basis of such recording started blackmailing her and sexually assaulted her during April, 2017 to August, 2017. It is further alleged by

complainant-prosecutrix that on 17.4.2018, bail petitioner forcibly entered her house and made an attempt to outrage her modesty, whereafter, FIR

detailed herein above came to be lodged against the bail petitioner at the behest of complainant-prosecutrix.

Mr. Mohan Sharma, learned counsel representing the bail petitioner, while referring to the status report/record vehemently argued that no case

under Section 376 IPC is made out against his client because it is quite apparent from the averments made in the complaint that complainant-

prosecutrix was known to the bail petitioner for quite considerable time and during this period, they had developed intimate relations. He further stated

that there is no explanation rendered on record by complainant-prosecutrix for not lodging complaint in April, 2017 itself, when allegedly bail petitioner

recorded the video. Lastly, Mr. Mohan Sharma, Advocate contended that bail petitioner is behind bars since 22.4.2018, investigation in the case is

complete and nothing is required to be recovered from the bail petitioner, as such, bail petitioner deserves to be enlarged on bail.

Mr. S.C. Sharma, learned Additional Advocate General , vehemently opposed the prayer having been made by the learned counsel representing the

bail petitioner and contended that keeping in view the gravity of the offence allegedly committed by bail petitioner, he does not deserve to be shown

any lenience, rather bail petitioner deserves to be dealt with severely. While fairly acknowledging that investigation is almost complete and nothing is

required to be recovered from the bail petitioner, learned Additional Advocate General contended that since bail petitioner hails from the State of

Madhya Pradesh, there is every likelihood of his fleeing from justice, in the event of his being enlarged on bail and as such, bail petition deserves to be

rejected.

I have heard the learned counsel for the parties and gone through the record carefully.

It is apparent from the record/status report that allegation against bail petitioner pertains to April, 2017 and there is no explanation rendered on

record by the complainant for not lodging complaint at the first instance in April, 2017 itself. Allegedly, bail petitioner videographed complainant-

prosecutrix while she was taking bath, in April, 2017 and factum with regard thereto came into notice of complainant-prosecutrix in April, 2017 itself,

but it is not understood that what prevented complainant-prosecutrix from lodging complaint against bail petitioner at the first opportunity. Complainant-

prosecutrix is a married woman having two children and it can not be accepted that she was under constant threats from the bail petitioner.

Having carefully perused the complaint having been lodged by complainant-prosecutrix, there appears to be considerable force in the arguments of

learned counsel representing the bail petitioner that bail petitioner and complainant-prosecutrix were known to each other for quite considerable time

and during this period, they had been meeting frequently. On the last date of hearing, i.e. 29.5.2018, this Court was informed that mobile phone of the

bail petitioner containing the video allegedly recorded by him has been sent to Forensic Science Laboratory, Junga and report is awaited. Now, today,

during the course of proceedings, report of Forensic Science Laboratory, Junga, qua mobile of bail petitioner has been made available, perusal whereof

clearly suggests that no video relevant to the case, could be found in the data extracted from the mobile phone of bail petitioner. Though, aforesaid

aspects of the matter are to be considered and decided by the learned trial Court, on the basis of evidence led on record by investigating agency, but

this Court having taken note of the fact that investigation in the case is complete and nothing is required to be recovered from the bail petitioner, sees

no reason to let bail petitioner incarcerate in jail for indefinite period. Apprehension expressed by the learned Additional Advocate General that bail

petitioner hails from Madhya Pradesh, can be met by putting bail petitioner to stringent conditions, as has been fairly stated by the learned counsel

representing the bail petitioner. This court also cannot lose sight of the fact that guilt, if any, of the bail petitioner is yet to be proved by investigating

agency by leading cogent and convincing evidence on record and by now it is settled law that until guilt is proved, one is deemed to be innocent.

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 guilt has not been 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.†By

now it is well settled that gravity alone cannot be 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€​

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€​

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.

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, present bail petition is allowed. 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, Shimla, besides

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.

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.

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

instant petition alone. The petition stand accordingly disposed of.