Dinender Mourya vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner namely, Dinender Mourya, who is behind the bars since 22.4.2018, has approached this Court in the instant proceedings filed under

Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No. 94 of 2018, dated 18.4.2018 under Sections

452, 354, 323, 376 and 506 of IPC, registered at police Station, Boileauganj, District Shimla, Himachal Pradesh.

Status report filed by the respondent-State in terms of order dated 6.7.2021, reveals that on 18.04.2018, victim/prosecutrix lodged a complaint at

police Station Boileauganj, District Shimla, Himachal Pradesh, alleging therein that in April 2017, bail petitioner came to her house and said that he

needs one room on rent. Allegedly bail petitioner also disclosed to the victim/prosecutrix that he gives tuition to the students, whereafter

victim/prosecutrix asked the bail petitioner to give tuition to her daughter. Since April, 2017 bail petitioner had been regularly coming to the room of the

victim/prosecutrix for giving tuition to her daughter, but one day allegedly bail petitioner made a video of victim/prosecutrix while she was taking bath

in her bathroom. Victim/prosecutrix alleged that bail petitioner after having made her video, started blackmailing her and thereafter sexually assaulted

her against her wishes for more than four months (i.e. from April, 2017 to August, 2017). She alleged that on 17.4.2018, while she was alone at her

house, bail petitioner forcibly entered in her room and behaved indecently and attempted to sexually assault her, but when she gave telephonic call to

her husband, bail petitioner fled away from the spot. In the aforesaid background, FIR, as detailed hereinabove, came to be lodged against the bail

petitioner on 18.4.2018 and since 22.4.2018 he is behind the bars. Investigation in the case is complete and challan stands filed in the competent Court

of law. Since bail petitioner is behind the bars for more than two years and till date, no substantial progress has been made in the trial, prayer has been

made on behalf of the bail petitioner for grant of bail.

Mr. Arvind Sharma, learned Additional Advocate General while fairly admitting the factum with regard to filing of the challan in the competent

Court of law, contends that keeping in view the gravity of offence alleged to have been committed by bail petitioner, he does not deserve any leniency

and as such, prayer having been made on his behalf for grant of bail deserves outright rejection. Mr. Sharma, further contends that since bail petitioner

hails from State of MP, in the event of his being enlarged on bail, he may not only flee from justice, but may also cause harm to the victim/prosecutrix,

whose statement is yet to be recorded, as such, his application for grant of bail may be rejected.

Having heard learned counsel representing the parties and perused the material available on record, this Court finds that allegedly bail petitioner had

been sexually harassing the victim/prosecutrix since April, 2017, but in the case at hand FIR came to be lodged on 18.4.2018 i.e. after inordinate delay

of one year of alleged incident. Moreover, having taken note of the age of the victim/prosecutrix, it is difficult to conclude that bail petitioner

repeatedly sexually assaulted her on the pretext of obscene video of victim/prosecutrix allegedly made by him. It is not understood that when first time

in the year, 2017 victim/prosecutrix was sexually assaulted by bail petitioner against her wishes, what prevented her to disclose such facts to her

husband or to the police. In the case at hand since April, 2017 till August, 2017 bail petitioner kept on sexually assaulting victim/prosecutrix against her

wishes, but at no point of time she ever made any effort to lodge complaint either to the police or to her husband. As far as incident of 17.4.2018 is

concerned, victim/prosecutrix only alleged that on that day bail petitioner tried to outrage her modesty by touching her in appropriately. It is also not

understood that when since August, 2017 prosecutrix had no contact with the bail petitioner, how on 17.4.2018 he could again come to her room.

Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court on the basis of totality of evidence to be

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 during the trial. Apprehension expressed by learned Additional Advocate General that in the event of bail

petitioner being enlarged on bail, he may flee from justice or may again indulge in such activities, can be best met by putting bail petitioner to stringent

conditions.

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

and as such, prayer having been made on his behalf deserves to be considered.

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 8. 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.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, 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.

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.