Mohan Singh @ Pawan Singh vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner, namely Mohan Singh alias Pawan Singh, who is behind the bars since 27.05.2021, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein to grant regular bail in case FIR No.27 of 2021, dated 27.5.2021, registered at police Station, Nankhari, District Shimla, H.P., under Sections 376 and 511 of IPC.

Status report filed by the respondent-State in terms of order dated 1.10.2021, reveals that victim/ prosecutrix (name withheld to protect her identity), aged 68 years, lodged a complaint at police Station Nankhari, District Shimla, H.P., on 27.5.2021, alleging therein that in the evening of aforesaid date while she was coming back from her fields at Sainthal, present bail petitioner met her on the way and started hurling abuses. She alleged that when she objected, present bail petitioner made an attempt to outrage her modesty and also attempted to sexually assault her against her wishes by touching her private parts. In the aforesaid background, FIR, as detailed hereinabove, came to be lodged against the present bail petitioner and since then, he is behind the bars. Since, challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner, he has 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 the challan in the competent court of law, contends that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of offence alleged to have been committed by him, he does not deserve any leniency and as such, prayer made on his behalf may kindly be rejected outrightly.

Having heard learned counsel for the parties and perused material available on record, this court finds that on the date of alleged incident, present bail petitioner not only hurled abuses at victim/prosecutrix, but also attempted to sexually assault her against her wishes and in that process, also touched her private parts. If the statement of the victim/prosecutrix recorded under Section 154 Cr.P.C., is read juxtaposing statement given by her to the Doctor at the time of her medical examination, this Court finds story of the prosecution to be highly doubtful. In the initial statement given to the police, victim/ prosecutrix alleged that on the date of alleged incident, bail petitioner besides hurling abuses, also attempted to sexually assault her, but while being examined by the Doctor she gave all together different version. Before the Doctor she nowhere stated that present bail petitioner obstructed her way and attempted to sexually assault her against her wishes, rather she disclosed to the Doctor that while she was coming from Sainthal to Souli, at 6.30 PM accused asked her where she was going and she said that she is going to home. She further disclosed to the Doctor that accused asked her about her home and then started grouping her and in that process, touched her chest. Aforesaid version was given to the Doctor by victim/prosecutrix on 27.5.2021 i.e. two days after the alleged incident and as such, it cannot be said that he had forgotten the natural sequence of the alleged incident while narrating the same to the Doctor. Besides above, this Court finds that no history of sexual intercourse was found by the Doctor, who medically examined the victim/prosecutrix after alleged incident. Medical evidence adduced on record nowhere supports the case of the prosecution. Though, case at hand is to be considered and decided by the Court blow on the basis of totality of evidence to be collected on record by the Investigating Agency, but having taken note of aforesaid glaring aspect of the matter, this Court sees no reason to let bail petitioner incarcerate in jail for indefinite period during the trial, especially when he has already suffered for more than five months.

Though, status report reveals that in past, one case under Section 354 of IPC stands registered against the bail petitioner, but mere pendency of such case cannot be a ground to reject the prayer made in the instant petition, especially when guilt, if any, of the petitioner in that case is yet to be established by the prosecution.

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 and as such, there appears to be no reason to curtail the freedom of the bail petitioner for indefinite period during the trial, especially when nothing remains to be recovered from him. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice or may again indulge in such activities, can be best met by putting bail petitioner to stringent conditions.

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 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 further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held 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 Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49, Hon'ble Apex Court 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.

Needless to say, 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 the various principles to be kept in mind, while deciding petition for bail i.e. prima facie case against the accused, nature and gravity of offence, severity of punishment, likelihood of repeating of the offence by accused etc.

In view of above, bail petitioner has carved out a case for himself. Consequently, present petition is allowed and bail petitioner is ordered to be enlarged on bail, subject to 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 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 petition alone. The petition stands accordingly disposed of.

Copy Dasti.