Manoj Kumar vs State Of Himachal Pradesh

Sandeep Sharma, J

Through Video Conferencing

Bail petitioner namely Manoj Kumar, who is behind bars since 20.6.2019, has approached this Court in the instant proceedings filed under Section

439 of Cr.PC., for grant of regular bail in case FIR No. 85/19 dated 20.6.2019, under Sections 376 and 506 of IPC, registered at P.S. Chowari,

District Chamba, H.P.

Record/status report made available to this Court reveals that on 20.6.2019, victim-prosecutrix, (named withheld) lodged a complaint at PS Dehra,

stating therein that on 16.4.2019, her marriage was solemnized with person namely Atul Thakur at Muhal. She stated that her husband works in a

restaurant at Jot, Chamba and as such, on 18.6.2019, she went to Jot at 8:00 pm and reached Jot in the midnight i.e. 2:00 AM. She disclosed to the

police that since her mobile got switched off on account of low battery, she was unable to contact her husband and as such, was compelled to take

shelter in the rain shelter till 5:00 AM. She alleged that at 5:00 AM in the morning, she went to one Dhabha opposite to rain shelter for getting her

phone recharged, but person present there i.e. bail petitioner sexually assaulted her against her wishes. She alleged that with great difficulty, she was

able to escape herself from the clutches of the bail petitioner and thereafter, she alongwith her husband came to PS Dehra for getting the complaint

lodged. In the aforesaid background, FIR detailed herein above came to be lodged against the present bail petitioner at PS Dehra, but subsequently,

same came to be transferred to PS Chowari, District Chamba as the alleged offence allegedly took place within the jurisdiction of PS Chowari at

Chamba. After the receipt of aforesaid complaint, police got the victim-prosecutrix medically examined at CHC Chowari and also got her statement

recorded under Section 164 CrPC in the court of learned JMIC Dalhousie, wherein she reiterated the allegations as were leveled by her against the

petitioner in her initial statement rerecorded under Section 154 Cr.PC. In the aforesaid background, FIR detailed herein above came to be lodged

against the present bail petitioner on 20.6.2019, and since then, he is behind the bars.

On 6.8.2020, Mr. Vijay Chaudhary, learned counsel for the petitioner placed on record affidavit dated 17.7.2020, allegedly executed by the victim-

prosecutrix, to demonstrate that bail petitioner has been falsely implicated in the case. In the aforesaid affidavit, which is on record, victim-prosecutrix

has categorically stated that she is well known to the bail petitioner and was having an affair with him. Besides above, victim-prosecutrix has deposed

in the affidavit that on the date of alleged incident, she of her own volition stayed with the accused Manoj Kumar and as such, no action, if any, is

required to be taken against him. Victim-prosecutrix in the affidavit, as has been taken note herein above, has further stated that though accused

Manoj Kumar had committed no rape upon her and they both had physical relations with the consent on that night, but to save her married life, she

agreed to lodge FIR against the present bail petitioner at the insistence of her husband.

Vide order dated 6.8.2020, this Court with a view to ascertain the correctness of the affidavit directed the Additional Advocate General to verify

the factum whether aforesaid affidavit has been executed by the victim-prosecutrix or not. Besides above, this Court also directed that authority

concerned while ascertaining the correctness of the aforesaid affidavit would also record the statement of victim-prosecutrix whether she has

executed the affidavit and whether averments contained in the same are correct or not. Pursuant to aforesaid order dated 6.8.2020, Mr. Sudhir

Bhatanagar, learned Additional Advocate General, has placed on record communication dated 14.8.2020 received from the office of Superintendent of

Police, Chamba, enclosing therewith statements given by victim-prosecutrix as well as her mother, perusal whereof reveal that affidavit dated

17.7.2020 placed on record was duly executed by victim-prosecutrix of her own volition and without there being external pressure. In her separate

statement given to the police, victim-prosecutrix as well as her mother have categorically stated that affidavit placed on record is genuine and bear

their signatures. In her statement given to the police, victim-prosecutrix has categorically stated that she of her own volition without there being any

external pressure has executed the affidavit dated 17.7.2020 and it bears her signature.

Though initial statements of victim-prosecutrix recorded under Sections 154 and 164 CrPC suggest that bail petitioner taking undue advantage of

innocence and helplessness of the victim-prosecutrix, who is a married lady, sexually assaulted her against her wishes, but as has been taken note

herein above, victim-prosecutrix in her affidavit executed on 17.7.2020, has categorically stated that on the date of alleged incident, she of her own

volition had stayed with the bail petitioner with whom, she had an affair. She has categorically stated in her affidavit that on the date of alleged

incident, bail petitioner had not committed any rape upon her, rather they had relationship with consent on that night. Leaving it aside, this Court finds

that alleged incident took place on 18.6.2019, at Jot, District Chamba, but it is not understood that why victim-prosecutrix alongwith her husband went

to Dehra for getting the FIR lodged against the present bail petitioner. No plausible explanation has been rendered on record qua the aforesaid aspect

of the matter save and except that victim-prosecutrix as well as her husband was not aware that complaint, if any, with regard to the alleged incident

was required to be lodged at Police Station Chowari, within whose jurisdiction alleged crime was committed. It is quite apparent from the latest

affidavit executed by the victim-prosecutrix, which has been found to be genuine and correct by the police that bail petitioner and victim-prosecutrix

had prior acquaintance and on the alleged date of incident, they had physical relation with the consent of each other.

Though aforesaid aspects of the matter are to be considered and decided by the court below on the basis of totality of evidence collected on record

by the Investigating Agency, but having taken note of the averments contained in the latest affidavit dated 17.7.2020, which has been otherwise found

to be genuine and correct by the police, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial,

especially when he has already suffered for more than one year. 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 of his/her is not proved in accordance with law. In the case at hand, guilt if any of the bail

petitioner is yet to be established on record by the Investigating Agency by leading cogent and convincing evidence and as such, his freedom cannot

be curtailed for an indefinite period during trial. Apprehension expressed by the learned Additional Advocate General that in the event of

petitioner’s being enlarged on bail, he may flee from justice and temper with the evidence, can be best met by putting the bail petitioner to stringent

conditions as has been fairly stated by the learned counsel for the petitioner.

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.

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.

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.â€​

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€​

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.

In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, petitioner has carved out a case for grant of bail,

accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the

sum of Rs. 1,00,000/- each with one local surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate/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 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.

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

this application alone. The petition stands accordingly disposed of.

Copy dasti on usual terms.