Meena Ram vs State Of Himachal Pradesh

Sandeep Sharma, J

Sequel to order dated 23.7.2020, whereby bail petitioner was ordered to be enlarged on interim bail in the event of his arrest in case FIR No.8,

dated 21.7.2020, under section 376 of IPC, registered with police Station, New Shimla, District Shimla, H.P., respondentÂState has filed the status

report prepared on the basis of the investigation carried out by the Investigating Agency, perusal whereof reveals that on 21.7.2020, victim/prosecutrix,

aged 31 years (name withheld to protect her identity), lodged aforesaid FIR alleging therein that after the death of her husband in the year, 2016, she

started working at Hateshwari temple, SectorÂ1, New Shimla, where she came in the contact of the bail petitioner, who at the relevant time was

working as a driver. She alleged that she developed good relations with the present bail petitioner, who subsequently proposed her for marriage. She

alleged that in the month of March, 2019, bail petitioner sexually assaulted her against her wishes on the pretext of marriage and thereafter kept on

coming to her room regularly and also developed physical relation with her. Victim/prosecutrix alleged that lastly bail petitioner developed physical

relation with her in the month of March, 2020 and thereafter stopped taking her calls. Victim/prosecutrix alleged in the complaint that now bail

petitioner, who developed physical relation with her on the pretext of marriage, has refused to solemnize marriage and as such, appropriate action, in

accordance with law, be taken against him.

Mr. Sanjeev Sood, learned Additional Advocate General while fairly admitting the factum with regard to joining of the investigation by the bail

petitioner, contends that though bail petitioner pursuant to order dated 23.7.2020 passed by this Court has joined the investigation, but he is not fully

cooperating because frequently he is changing his statements. Learned Additional Advocate General further contends that it is quite apparent from the

statements given by the victim/prosecutrix that she was repeatedly subjected to sexual intercourse against her wishes by the bail petitioner on the

pretext of marriage and as such, his prayer for grant of bail may be rejected out rightly. Lastly, learned Additional Advocate General contends that the

challan is yet to be filed in the competent Court of law and in the event of petitioner’s being enlarged on bail, he may not only flee from justice

rather tamper with the evidence and as such, his prayer may not be accepted at this stage.

Having heard learned counsel representing the parties and perused the status report made available to this Court, especially statements of the

victim/prosecutrix recorded under Sections 154 and 164 Cr.P.C, this Court is convinced and satisfied that bail petitioner and victim/prosecutrix had

prior acquaintance and since the year, 2016 they had been meeting each other frequently. As per own statement of the victim/prosecutrix, who is

otherwise mother of two children, bail petitioner subjected her to forcible intercourse first time in the month of 2019, but there is no document, worth

credence available on record suggestive of the fact that at the relevant time, victim/prosecutrix lodged complaint, if any, against the bail petitioner,

rather she of her own volition and without there being any external pressure kept on joining the company of the bail petitioner till the year, 2020.

Having noticed the age of the victim/prosecutrix coupled with the fact that she is mother of two children, this Court is not inclined to accept the

contention of learned Additional Advocate General that bail petitioner taking undue advantage of the innocence of the victim/prosecutrix repeatedly

sexually assaulted her against her wishes, rather material collected on record by the Investigating Agency clearly suggests that both victim/prosecutrix

and bail petitioner wanted to solemnize marriage and as such, they had been meeting frequently with each other of their own free will.

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

record by the investigating agency, but having noticed aforesaid glaring aspect of the matter, there is no justification for custodial interrogation of the

bail petitioner , who has otherwise joined the investigation pursuant to order passed by this Court, as has been fairly admitted by the learned Additional

Advocate General.

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.

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 firstÂtime 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 ReÂInhuman Conditions in

1382 Prisons.

The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation ( 2012)1 Supreme Court Cases 49; held as under:Â​

“ 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 and order dated 23.7.2020 passed by this Court is made absolute subject to

petitioner’s 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

Investigating Officer 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.

The bail petition stands disposed of accordingly.