Gurdyal And Others vs State Of H.P And Others

Sandeep Sharma, J

By way of instant bail petitions filed under Section 439 of Cr.PC., prayer has been made by the petitioners for grant of regular bail in case FIR No. 96 of 2021 dated 18.12.2021, registered at PS Brow, District Kullu, HP, under Sections 376, 323, 506 and 120-B of IPC. Pursuant to order dated 21.2.2022, ASI Gian Chand, I/o P.S. Brow, District Kullu, H.P, has come present alongwith records. Records perused and returned.

Close scrutiny of the status report as well as record made available to this Court reveals that on 18.12.2021, victim-prosecutrix (name withheld) lodged a complaint to Director General of Police, Himachal Pradesh, alleging therein that her marriage with the bail petitioner Anil Kumar was solemnized in January, 2020 as per customary rites of the District Kinnaur and since then, she had been living with him. She alleged that though after marriage, bail petitioner had assured her to keep her at his native place, but he kept her in a room at Brow, Rampur. She alleged that after the marriage, bail petitioner not only gives her beatings under the influence of the liquor, but also brings some other persons to his room and she was compelled to leave the room on several occasions. Victim-prosecutrix alleged that on 2.12.2021, bail petitioner Anil kumar alongwith person namely Gurdial i.e. bail petitioner in Cr.MPM No. 161 of 2022, came from Reckongpeo to Rampur, and asked her to go with the bail petitioner Guridal in a room, but when she refused, he gave her beatings. She also alleged that on that day, bail petitioners namely Anil and Gurdyal sexually assaulted her against her wishes. She further alleged that on her report made to the police, both the bail petitioners were summoned to the Police Station, where they apologized for their misbehavior and no action was taken against them. Victim-prosecutrix also alleged that neither police nor doctor attending upon her mentioned factum with regard to the sexual assault. On the basis of aforesaid complaint, FIR detailed herein above, came to be lodged against the bail petitioners and since then, they are behind the bars. Medical Officer, CH Nirmand, after having examined the victim-prosecutrix opined that victim- prosecutrix may have been exposed to sexual intercourse, but final opinion shall be given after the report of RFSL.

Pursuant to order dated 21.2.2022, IO has also produced the report of RFSL, perusal whereof reveals that blood samples on FTA cards were left un- examined for DNA profiling since nothing was found in the samples of victim-prosecutrix. Since challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioners, they have approached this Court in the instant proceedings for grant of regular bail.

Mr. Desh Raj Thakur, learned Additional Advocate General, while fairly admitting factum with regard to filing of challan in the competent court of law, contends that though nothing remains to be recovered from the bail petitioners, but keeping in view the gravity of offence alleged to have been committed by them, they do not deserve any leniency and as such, prayer made on their behalf for grant of bail deserves to be rejected outrightly. While making this Court to peruse the status report/record, learned Additional Advocate General submits that there is overwhelming evidence available on record suggestive of the fact that the bail petitioners taking undue advantage of innocence of the victim-prosecutrix not only gave her beatings, but also sexually assaulted her against her wishes and as such, it would not be in the interest of justice to enlarge them on bail at this stage because in the event of their being enlarged on bail, they may not only flee from justice, but may also cause harm to the victim-prosecutrix .

Having heard learned counsel for the parties and perused material available on this record, this Court finds that at the first instance, victim-prosecutrix lodged complaint at the Police Station on 4.12.2021, alleging therein that on the intervening night of 2/3.12.2021, she was given beatings by the bail petitioner Anil Kumar, as a consequence of which, she suffered injuries. Police after having recorded the statement of victim-prosecutrix lodged case under the Domestic violence Act against the bail petitioner Anil Kumar. On 18.12.2021, victim-prosecutrix made a written communication to the Director General of Police, alleging therein that on the intervening night of the 2/3.12.2021, she was not only given beatings by the bail petitioner Anil kumar, but she was sexually assaulted against her wishes by her husband Anil Kumar and bail petitioner Gurdyal. She also alleged that she lodged report qua the aforesaid incident in the concerned police station, but police purposely did not record her report qua the allegation of sexual assault and doctor attending upon her also not examined her qua the afore allegation. Record of investigation reveals that on 4.12.2021, victim-prosecutrix leveled no allegation of sexual assault against the bail petitioners, rather on that day, she specifically alleged that she was repeatedly tortured/harassed by her husband i.e. Anil Kumar and as such, police after having recorded her statement, lodged case under Domestic Violence Act. It is after 16 days of the alleged incident, victim-prosecutrix straightaway wrote communication to the Director General of Police, HP, leveling therein serious allegations of sexual assault against the bail petitioners named herein above. As per victim-prosecutrix, she was sexually assaulted against her wishes in the intervening night of 2/3.12.2021, by the bail petitioners, but it is not understood that why such fact was not got recorded by her at the time of lodging report on 4.12.2021, wherein she only disclosed to the police that she was beaten by her husband Anil Kumar i.e. bail petitioner. Interestingly, on 4.12.2021, victim-prosecutrix also did not disclose factum, if any, of her having been sexually assaulted by the bail petitioners to the doctor attending upon her at the time of her medical examination. However, subsequently in fresh complaint sent to Director General of Police, victim- prosecutrix besides leveling serious allegations against the police also leveled allegation against doctor, stating therein that she was not examined qua the allegation of sexual harassment. However, if medical evidence adduced on record is perused, it nowhere suggests that victim- prosecutrix ever disclosed to the doctor attending upon her that she was sexually assaulted against her wishes by the bail petitioner. Though victim-prosecutrix claimed before the police authorities that bail petitioner Anil Kumar is her husband, but investigation nowhere proves marriage, if any, inter-se bail petitioner Anil Kumar and the victim-prosecutrix. Leaving everything aside, medical evidence collected on record nowhere supports the case of the prosecution. Report of RFSL Mandi, is of no help as far as allegation of sexual assault is concerned. Delay of 16 days in lodging FIR coupled with the contradictions and inconsistencies in the statements made by the victim-prosecutrix raises suspicion about the correctness and genuineness of the story of the prosecution and as such, there appears to be no reason for this Court to let the bail petitioners incarcerate in the jail for an indefinite period during trial, especially, when nothing remains to be recovered from them and challan stands filed in the competent court of law. Hon’ble Apex Court as well as this Court in catena of cases have repeatedly held that one is deemed to be innocent till the time guilt, if any, of his/her is not proved in accordance with law. In the case at hand also, guilt, if any, of the accused is yet to be proved in accordance with law, by leading cogent and convincing material on record. Mr. Desh Raj Thakur, learned Additional Advocate General vehemently argued that bail petitioners taking undue advantage of the innocence of the victim-prosecutrix exploited her, but having noticed conduct of the victim-prosecutrix, which is apparent from her inconsistent statements given to the police, this court sees no reason to curtail the freedom of the petitioners for an indefinite period during trial. Apprehension expressed by the learned Additional Advocate General that in the event of petitioners’ being enlarged on bail, they may flee from justice, can be best met by putting the bail petitioners to stringent conditions as has been fairly stated by the learned counsel for the petitioner(s).

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 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.”

In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218, The Hon’ble Apex Court has held as under:-

“ This Court in Sanjay Chandra v. CBI, 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 or 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 to 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 ad 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 the 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.”

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.

Reliance is placed on judgment passed by the Hon’ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731, relevant para whereof has been reproduced herein below:-

“11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616) Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569).

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:

“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.

In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, petitioners have carved out a case for grant of bail, accordingly, the petition is allowed and the petitioners are ordered to be enlarged on bail in aforesaid FIR, subject to their furnishing personal bonds in the sum of Rs. 1,00,000/- each with two local sureties each in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions:

a. They shall make themselves 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. They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c. They shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or the Police Officer; and

d. They shall not leave the territory of India without the prior permission of the Court.

It is clarified that if the petitioners misuse their 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 main case and shall remain confined to the disposal of these applications alone.

The bail petitions stand disposed of accordingly.

Copy Dasti.