Fatma vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner, Smt. Fatma, who is behind bars since 14.9.2020, has approached this Court in the instant proceedings filed under S.439 CrPC, for

grant of regular bail in FIR No. 123, dated 11.9.2020 under Ss. 366, 376, 506 and 120B IPC and S.4 of Protection of Children from Sexual Offences

Act, registered at Police Station Puruwala, District Sirmaur, Himachal Pradesh.

Status report filed on behalf of the respondent in terms of order dated 30.9.2020 reveals that on 11.9.202, complainant i.e. mother of victim-

prosecutrix, filed a complaint with Sub Divisional Police Officer, Sirmaur, alleging therein that the bail petitioner, who had come in contact with her

family at Vikasnagar, during marriage of her sister, wanted to solemnise marriage with her minor daughter, victim-prosecutrix, aged 17 years. She

alleged that since the bail petitioner used to tease and threaten the victim-prosecutrix, she made a complaint to the father of bail petitioner, who in turn

stated that the bail petitioner wanted to solemnise marriage with the victim-prosecutrix. She stated that on 20.6.2020, bail petitioner called the victim-

prosecutrix to Vishwa Karma Chowk, from where he made her elope with him on the pretext of marriage. She alleged that the bail petitioner took the

victim-prosecutrix to Delhi, Ghaziabad and thereafter sexually assaulted her against her wish. She alleged that the victim -prosecutrix informed her

over phone that she has been forcibly kept in a room at Ghaziabad and is being maltreated by bail petitioner and his family. She alleged that the family

of the bail petitioner including bail petitioner gave her beatings and kept her in illegal confinement against her wishes. Complainant also alleged that co-

accused, Shoiab, after some time, dropped her daughter at her uncle’s place in Ghaziabad from where she was brought back home and as such,

prayed appropriate action in accordance with law may be taken against the bail petitioner and other persons. In the aforesaid background, FIR detailed

herein above came to be lodged against entire family of the bail petitioner and since then, bail petitioner is behind the bars.

Mr. Kunal Thakur, learned Deputy Advocate General, while fairly admitting the factum with regard to completion of investigation, contends that

though nothing remains to be recovered from the bail petitioner but keeping in view her involvement in the case, her prayer for grant of bail deserves

outright rejection. Mr. Thakur, further contends that there is overwhelming evidence led on record by investigating agency, suggestive of the fact that

the main accused in connivance with other family members, firstly made the victim-prosecutrix elope with him on the pretext of marriage and

thereafter subjected her to maltreatment and mental harassment. Mr. Thakur, contends that as per evidence collected on record, main accused,

Shoiab though has been booked under S.376 IPC, but the bail petitioner alongwith other family members, has been booked under S.120B IPC. Lastly,

Mr. Thakur, contends that otherwise also, there is every likelihood of bail petitioner fleeing from justice in the event of her being enlarged on bail and

as such, her prayer may be rejected at this stage.

Having heard learned counsel for the parties and perused the material available on record, this Court finds that on 28.6.2020, victim-prosecutrix

after having received telephonic call from accused Shoiab, herself went to Vishwa Karma Chowk, from where she was allegedly taken to Delhi,

Ghaziabad. Record further reveals that the victim-prosecutrix during her stay with the accused Shoiab also executed an affidavit stating therein that

she of her own volition and without there being any external pressure has joined the company of the Shoiab and at no point of time, she was compelled

to solemnise marriage. Interestingly, in the aforesaid affidavit, victim-prosecutrix has mentioned her age as 19 years whereas in the FIR, she is stated

to be 17 years. Otherwise also, bail petitioner has placed on record copy of Aadhar card (Annexure P-4) of the victim-prosecutrix, perusal whereof

clearly reveals that she was major at the time of alleged incident.

Having noticed the conduct of the victim-prosecutrix, who at the time of alleged incident, was major, this Court is unable to persuade itself to accept

the contention of Learned Deputy Advocate General that the main accused taking undue advantage of innocence of victim-prosecutrix, made her

elope with him and then sexually assaulted her against her wish, rather, perusal of the complaint filed by complainant itself suggests that the victim-

prosecutrix had prior acquaintance with the main accused, Shoiab , whose family wanted to solemnise his marriage with the victim-prosecutrix.

Leaving everything aside, as per own case of investigating agency, case, if any, under S.120B is made out against the bail petitioner, who happens

to be mother of main accused Shoiab. Though there are allegations that the bail petitioner alongwith other family members, gave beatings to the

victim-prosecutrix but such allegations are yet to be proved in accordance with law, by leading cogent and convincing evidence on record, as such,

solely, on account of aforesaid allegations, this Court cannot let bail petitioner incarcerate in jail for an indefinite period. Challan in the case at hand, is

yet to be filed but nothing remains to be recovered from the bail petitioner, as such, there is no justification to curtail her freedom for an indefinite

period, who is otherwise more than 60 years of age. Otherwise also, during proceedings of the case, it transpired that the medical condition of the bail

petitioner is not good and as such, she has been kept in a separate cell. Since nothing remains to be recovered from the bail petitioner and Challan is

yet to be filed coupled with the fact that trial in the case at hand, is likely to be delayed in the wake of covid-19 pandemic, there appears to be no

justification to reject the prayer made on behalf of the bail petitioner for grant of bail. 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 him to stringent conditions,

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€​

In Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49, Hon'ble Apex Court has held 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.

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 various principles to be

kept in mind, while deciding petition for bail i.e. prima facie case against the accused, nature and gravity of offence, severity of punishment, likelihood

of repeating of the offence by accused etc.

In view of above, bail petitioner has carved out a case for herself. Consequently, present petition is allowed. Bail petitioner is ordered to be

enlarged on bail, subject to furnishing bail bonds in the sum of Rs.50,000/- with one local surety in the like amount, to the satisfaction of the Magistrate

available at the station, besides the following conditions:

(a) She shall make herself 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) She shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

(c) She 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) She shall not leave the territory of India without the prior permission of the Court.

(e) She shall surrender passport, if any, held by her.

It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon her, 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 petition alone.

The petition stands accordingly disposed of.

Copy Dasti.