Mohammad Ali vs State Of H. P

Sandeep Sharma, J

Bail petitioner Mohammad Ali, who is behind the bars since 3.10.2021 has approached this court in by way of present proceedings filed under S.439 CrPC for grant of regular bail in FIR No. 130, dated 3.10.2021, under S.354A IPC and S.8 of the Protection of Children from Sexual Offences Act, registered at Police Station Kihar, District Chamba, Himachal Pradesh.

Pursuant to order dated 15.11.2021, respondent-State has filed status report and I/O has come present with the record. Record perused and returned.

Having perused the status report and the record made available to this court, this court finds that on 2.10.2021, victim-prosecutrix aged 17 years, (name withheld) lodged a complaint at Police Station Kihar, alleging therein that on 2.10.2021, while she had gone to Dhalga, for grazing cattle, bail petitioner came on the spot and behaved indecently. She alleged that the bail petitioner teased her and thereafter tried to sexually assault her, against her wishes. She alleged that the bail petitioner tried to muffle her and also tried to bite on her cheeks. She alleged that after having heard her cries, her Tai (Aunt) came on the spot and thereafter, the bail petitioner fled from spot. In the aforesaid background FIR, as detailed herein above, came to be lodged against the bail petitioner on 2.10.2021, and since 3.10.2021, the bail petitioner is behind the bars. Since investigation is complete and nothing remains to be recovered from the bail petitioner, he has approached this court for grant of regular bail.

Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly acknowledging the factum that nothing remains to be recovered from the bail petitioner, contends that keeping in view the gravity of offence alleged to have been committed by the bail petitioner, he does not deserve leniency and his prayer for bail deserves outright rejection.

Having heard learned counsel for the parties and perused the material available on record, this court finds that the victim-prosecutrix aged 17 years, lodged a complaint that on 2.10.2021, bail petitioner not only behaved indecently with her but also tried to sexually assault her. She also alleged that the bail petitioner tried to stifle/muffle her and tried to bite her cheeks, but the medical evidence adduced on record, nowhere corroborates the aforesaid version put forth by the victim - prosecutrix. The Medical Officer/Doctor attending upon the victim-prosecutrix did not find any internal/external injury on any part of the person of the victim-prosecutrix. Especially there is no report with regard to bite if any, on the cheeks of the victim-prosecutrix. Though the case at hand is to be decided by learned trial Court in totality of evidence led on record by the investigating agency, but taking into account aforesaid aspects of the matter, this court finds sufficient reason to consider the prayer made on behalf of the petitioner for grant of bail.

Since the Challan stands filed in competent court of law and nothing remains to be recovered from bail petitioner, there appears to be no justification to let the bail petitioner incarcerate in jail for an indefinite period, during trial.

Hon'ble Apex Court and this Court in a catena of cases have repeatedly held that one is deemed to be innocent, till the time, he/she is proved guilty in accordance with law. In the case at hand, complicity, if any, of the bail petitioners is yet to be established on record by the investigating agency, as such, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, which may take considerable time for its conclusion,. Apprehension expressed by of learned Additional Advocate General that in the event of the bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions.

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 been further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty.

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

In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the 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 various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced.

In view of above, bail petitioner has carved out a case for himself, as such, present petition is allowed. Petitioner is ordered to be enlarged on bail, subject to his furnishing bail bonds in the sum of Rs.50,000/- with one local surety in the like amount, to the satisfaction of the learned trial Court, besides the 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 petition alone.

The petition stands accordingly disposed of. Copy dasti.