Naresh Kumar vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner namely, Naresh Kumar, who is behind the bars since 17.7.2019 has approached this Court in the instant proceedings filed under Section 439 Cr.P.C for grant of regular bail in case FIR No.128 of 2019, dated 15.7.2019 registered at police Station, Theog, District Shimla, H.P. under Sections 342, 363, 366 and 376 of IPC and Section 4 of the POCSO Act.

Respondent-State has filed the status report prepared on the basis of the investigation carried out by the Investigating Agency. In terms of order dated 12.10.2020, ASI Rajesh Kumar has also come present alongwith the record. Record perused and returned.

Close scrutiny of the record/status report reveals that on 15.7.2019, complainant Sher Singh, who happened to be father of the victim prosecutrix lodged a complaint at police Station, Theog, District Shimla, H.P., alleging therein that on 7.7.2019, bail petitioner abducted her minor daughter from her residence at village Makhdol and thereafter kept her in illegal custody till 14.7.2019. complainant further alleged that during aforesaid period, bail petitioner not only sexually assaulted her minor daughter, but also gave her beatings and as such, appropriate action, in accordance with law, be taken against him. On the basis of aforesaid complaint, FIR detailed hereinabove, came to be lodged against the bail petitioner and since 17.7.2019, he is behind the bars.

Mr. Sunny Datwalia, learned Assistant Advocate General while fairly admitting the factum with regard filing of the challan in the competent Court of law, contended that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of the offence alleged to have been committed by the bail petitioner, he does not deserve any leniency and as such, prayer having been made on his behalf for grant of bail may be rejected out rightly. While making this Court peruse the record/status report, learned Assistant Advocate General strenuously argued that though there is overwhelming evidence collected on record by the Investigating Agency suggestive of the fact that bail petitioner taking undue advantage of innocence of the victim/ prosecutrix, not only sexually assaulted her against her wishes repeatedly, but also gave her beatings, but even otherwise, consent, if any, of victim/prosecutrix being minor is immaterial and as such, bail petition deserves to be rejected. Lastly, learned Assistant Advocate General contended that since statement of the victim/prosecutrix is yet to be recorded, it may not be in the interest of justice to enlarge the bail petitioner on bail at this stage because in the event of his being enlarged on bail, he may not only flee from justice, rather may cause harm to the prosecution witnesses including the prosecutrix.

Having heard learned counsel representing the parties and perused the material available on record, this Court finds that as per own statement of the complainant her minor daughter had gone missing or was abducted by the bail petitioner on 7.7.2019, but there is no plausible explanation rendered on record qua the delay in lodging the FIR, which admittedly came to be lodged after seven days of the alleged incident. Otherwise also, there is no material available on record suggestive of the fact that missing report, if any, ever came to be lodged at the behest of the complainant after her minor daughter had allegedly gone missing or abducted by the petitioner, rather FIR came to be lodged on 15.7.2019. Otherwise also, statement of the victim/prosecutrix recorded under section 164 Cr.P.C, nowhere suggests that she was abducted by the bail petitioner, rather in the aforesaid statement she has categorically stated that on 7.7.2019 she herself went to Kufri in the vehicle of the bail petitioner for getting medicine. She has stated in her aforesaid statement recorded under section 164 Cr.P.C that bail petitioner after having reached Fagu, purchased one bottle of beer and asked her to accompany him. She alleged that thereafter bail petitioner took her to Rampur and on the way, he sexually assaulted her on two occasions against her wishes. She has stated that on 8.7.2019, bail petitioner took her to the house of his relative and sexually assaulted her against her wishes.

As per the victim/prosecutrix, she was kept under illegal confinement by the bail petitioner w.e.f.9.7.2019 to 14.7.2019 and during this period, she was subjected to forcible sexual intercourse. Interestingly, she has admitted in the aforesaid statement that on 14.7.2019 she came back to her mother and disclosed the entire incident to her. If aforesaid statement of the victim/prosecutrix recorded under section 164 Cr.P.C is perused in its entirety, it cannot be concluded that she was in illegal confinement of bail petitioner w.e.f.7.7.2019 to 14.7.2019 because on 14.7.2019 victim/prosecutrix of her own come back to the house of her mother. If she was in illegal confinement of the bail petitioner, it is not understood how she could came back to her mother on 14.7.2019. Otherwise also, it is quite apparent from the aforesaid statement of the victim/prosecutrix that she had prior acquaintance with the bail petitioner and she of her own volition had joined his company. Though, as per the case of the prosecution, age of the victim/prosecutrix at the time of alleged incident was 17 years, but having noticed her conduct, which clearly reflects from her statement recorded under section 164 Cr.P.C, this Court is not persuaded to agree with the contention of learned Assistant Advocate General that bail petitioner took undue advantage of innocence of the victim/prosecutrix, who otherwise was capable of understanding the consequence of her being in the company of the bail petitioner.

Leaving everything aside, there is no explanation that why parents of the victim/prosecutrix kept mum for more than a week after their minor daughter had gone missing or was abducted by the bail petitioner.

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, this Court sees no reason to let bail petitioner incarcerate in jail for indefinite period, especially when nothing remains to be recovered from the him. Guilt, if any, of bail petitioner is yet to be proved in accordance with law and as such, it would not fair to curtail his freedom for indefinite period during trial, which otherwise likely to be delayed further on account of prevailing conditions in the wake of covid-19.

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. Apprehension expressed by learned Deputy Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions, as has been fairly admitted by learned counsel representing 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 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 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

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."

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. Petitioner is ordered to be enlarged on bail subject to his 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 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 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.

e. He shall surrender passport, if any, held by him.

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.