Hoshiar Singh vs State of Himachal Pradesh

Sandeep Sharma, J.

1.By way of instant petition filed under Section 438 of Cr.PC., a prayer has been made on behalf of the petitioner for grant of pre-arrest bail in

connection with FIR No. 44 of 2018 dated 10.4.2018, under Section 376(2)(n) of the IPC, registered at Police Station Padhar, District Mandi, H.P.

2.Sequel to order dated 13.4.2018, passed by this Court, whereby petitioner was enlarged on interim bail, ASI Kulmesh Singh, I/o P.S. Padhar, District

Mandi, H.P., has come present along with records. Record perused and returned. Mr. Dinesh Thakur, learned Additional Advocate General, has also

placed on record status report prepared on the basis of investigation carried out by the Investigating Agency, perusal whereof suggests that

complainant-prosecutrix vide report dated 10.4.2018, alleged that bail petitioner on the pretext of marriage sexually assaulted her for almost 12 years.

She categorically stated that on 9.4.2018, bail petitioner was compelling her to visit his house but since she refused to come to the house of the bail

petitioner, bail petitioner on 10.4.2018, came to her shop and sexually assaulted her against her wishes. In the aforesaid background, aforesaid FIR

came to be lodged against the bail petitioner, who is a government employee.

3.Mr. B.C. Negi, learned Senior Advocate, duly assisted by Mr. Vijay K. Verma, Advocate, representing the bail petitioner, while referring to the

record/status report, vehemently argued that no case, if any, is made out under Section 376, against the petitioner, because it clearly emerges from the

record that the complainant-prosecutrix and bail petitioner were known to each other for quite considerable time and during this period, they had

developed intimate relationship. Mr. Negi, further contended that there is nothing on record to suggest that in the last 12 years, complaint, if any, was

ever lodged by the complainant against the bail petitioner, which fact itself clearly suggests that she of her own volition had joined the company of the

bail petitioner.

4.Mr. Dinesh Thakur, learned Additional Advocate General, while opposing aforesaid prayer having been made on behalf of the petitioner, contended

that keeping in view the gravity of offence allegedly committed by the petitioner, he does not deserve to be enlarged on bail, rather he is required to be

dealt with severely. He further stated that true it is that in the investigation, it has come that the complainant had been meeting the bail petitioner for

the last 12 years, but that cannot be a ground to release the bail petitioner on bail when she categorically alleged that on 10.4.2018, bail petitioner

sexually assaulted her against her wishes.

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

6.True, it is that the complainant in her report dated 10.4.2018, categorically reported that the bail petitioner sexually assaulted her on 10.4.2018,

against her wishes but close scrutiny of her statement made to the police, on the basis of which, formal FIR came to be registered, against the bail

petitioner, clearly suggests that bail petitioner and complainant were known to each other for almost 12 years and during this period, they developed

physical relations. No doubt, allegations against the bail petitioner are of serious nature but same relate back to year, 2005, but there is no explanation

rendered on record by the prosecutrix for remaining silent for such a long period, which certainly creates suspicion with regard o the correctness of

the allegation leveled against the bail petitioner. Though, aforesaid aspects of the matter are to be considered and decided by the court below on the

basis of material adduced on record, by the prosecution, but having regard to the nature of allegation and delay in reporting the matter to police, this

Court sees no reason for custodial interrogation of the bail petitioner, who has otherwise joined investigation in terms of order passed by this Court.

Mr. Dinesh Thakur, learned Additional Advocate General, on instructions, of Investigating Officer, who is present in Court, fairly stated that petitioner

has joined the investigation in the case at hand and nothing is required to be recovered from the bail petitioner, who is a government employee and

shall always remain available for investigation as well as trial.

7.Recently, Hon’ble Apex Court in Shivashankar @ Shiva v. State of Karnataka and Anr., passed in Criminal Appeal No. 504 of 2018 (arising out

of SLP (Crl.) No. 454 of 2017), while dealing with allegation made by the complainant that person with whom she lived for past eight years, sexually

assaulted her against her wishes, concluded that it is difficult to sustain the charges leveled against the appellant, who may have possibly, made a false

promise of marriage to the complainant, in the face of complainant’s own allegation that they lived together as man and wife. Relevent paras of

the aforesaid judgment are reproduced hrein below:- “The gravamen of the charge against the appellant-accused is that he has raped respondent

no.2-complainant. We find from the complaint filed by the complaint that respondent no.1-complainant has lived with the appellant for period of about

eight years. Further, respondent no.2-complainant has stated that the appellant “pretended to have loved me†on the promise of marriage, that he

applied the Kumkum on her forehead, and tied the Arishina thread to her neck. She further stated that she has been treating the appellant as her

husband for the past eight years, and now he is trying to escape from her and cheat her. Through we are not here concerned with the question

whether the appellant and the complainant-respondent no.1 were, in fact, married, we have no doubt that they lived together like a married couple

even according to the complainant. In the facts and circumstances of the present case, it is difficult to sustain the charges leveled against the appellant

who may have possibly, made a false promise of marriage to the complainant. It is, however, difficult to hold sexual intercourse in the course of a

relationship which has continued for eight years, as ‘rape’ especially in the face of the complainant’s own allegation that they lived together

as man and wifeâ€​

8.In the present case also, complainant has herself stated that bail petitioner sexually assaulted her for the last 12 years on the pretext of marriage, but

as has been observed above, during this period, complainant never lodged complaint, if any, against the bail petitioner being aggrieved of his illegal act.

9.Needless to say, guilt, if any, of the bail petitioner is yet to be proved in accordance with law by the prosecution by leading cogent and convincing

evidence. It is well settled that till the time a person is not found guilty, 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 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 has 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.

3.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.

4.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.

5.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.

10.Needless to say object of attendance of the accused in the trial and the bail is to secure the 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.

11.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€​

12.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.â€​

13.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.

14.Consequently, in view of the above, order dated 13.4.2018 passed by this Court, is made absolute, 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 him 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.

15.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.

16.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.