Naveen Kumar vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner namely, Naveen Kumar, who is behind the bars since 4.10.2019, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No. 91/2019, dated 30.9.2019, under Sections 376, 342, 506 of IPC and Section 4 of POCSO Act, registered at police Station, Arki, District Solan, Himachal Pradesh.

Status report filed in terms of order dated 4.6.2020 reveals that on 30.9.2019, victim/prosecutrix (name withheld to protect her identity), lodged a complaint at police Station, Arki, District Solan, H.P., stating therein that on 29.9.2019, bail petitioner, Naveen Kumar, with whom she had prior acquaintance, made a telephonic call and called her to meet him on the road. She stated that at 11.45 AM, she reached on the road from where the bail petitioner asked her to sit in his car. She alleged that bail petitioner took her to his house, where his mother was also present. She alleged that at 1.00 PM, when mother of bail petitioner had gone to collect the grass from the fields, bail petitioner sexually assaulted her against her wishes. She also reported to the police that at 7.00 PM, bail petitioner informed her father telephonically that his daughter is in his house and he would send her in the morning, but at 12.00 PM in the midnight cousin brother of the victim/prosecutrix came to the house of bail petitioner in order to take victim/prosecutrix. In the aforesaid background, FIR, as detailed hereinabove, came to be lodged against the bail petitioner on 30.9.2019 and since 4.10.2019, he is behind the bars.

Mr. Sudhir Bhatnagar, learned Additional Advocate General while fairly admitting the factum with regard to filing of the Challan, contends that though statement of victim/prosecutrix stands recorded in the Trial Court, 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 for grant of bail may be rejected. Mr. Bhatnagar, learned Additional Advocate General further contends that though there is ample evidence suggestive of the fact that bail petitioner taking undue advantage of the minority and innocence of the victim/prosecutrix, not only enticed her to marry him, but also sexually assaulted her against her wishes, but even otherwise, consent, if any, of the victim/prosecutrix, who at the relevant time was 15 years three months old, has no relevance and as such, bail petitioner does not deserves to be enlarged on bail.

Having heard learned counsel representing the parties and perused the material available on record, this Court finds that victim/prosecutrix in her initial statement given to the police herself stated that she had prior acquaintance with the bail petitioner and she of her own volition and without there being any external pressure had joined his company on the askance of bail petitioner. It has also come in the initial statement of the victim/prosecutrix recorded under Section 154 Cr.P.C that bail petitioner took her to his house, where his mother was already present but it is not understood that if the victim/prosecutrix was taken by the bail petitioner against her wishes then what prevented her to disclose this fact to the mother of the bail petitioner. Similarly, as per own statement of the victim/prosecutrix, bail petitioner himself informed the father of the victim/ prosecutrix that his daughter is in his house. If the statements made by the victim/prosecutrix under Sections 154 and 164 Cr.P.C., are read in conjunction, this Court finds force in the submission of learned counsel representing the bail petitioner that at no point of time bail petitioner compelled the victim/prosecutrix to run away from her house, rather she after having received telephonic call went to the road of her volition, from where she went to the house of the bail petitioner. No doubt, at the time of alleged incident age of the victim/prosecutrix was 15 years six months, but having noticed the conduct of the victim/prosecutrix, which is quite apparent from her statements given to the police as well as Judicial Magistrate, this Court is unable to accept the contention of learned Additional Advocate General that the victim/prosecutrix was not capable of understanding the consequences of her being in the company of the bail petitioner.

Medical evidence adduced on record by the prosecution also does not support the case of the prosecution. Having taken note of the report submitted by the FSL, Medical Officer, who had medically examined victim/prosecutrix after the alleged incident, has categorically opined that there is no evidence of recent sexual intercourse/assault. It has been categorically reported in the MLC that there was no signs of any physical and genital assault. Moreover, DNA profile obtained from the bed sheet was different from the DNA profile obtained from the blood on FTA of victim/prosecutrix.

Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court on the basis of totality of evidence to be collected on record by the investigating agency, but having noticed aforesaid aspect of the matter coupled with the fact that the statement of the victim/prosecutrix stands already recorded before the trial Court, this Court sees no reason to let bail petition incarcerate in jail for indefinite period. No doubt, statements of remaining prosecution witnesses are yet to be recorded, but since statement of victim/prosecutrix stands recorded, it would not be fair to curtail the freedom of the bail petitioner for indefinite period during the trial, especially when he has already suffered for more than nine months. Examination of the remaining prosecution witnesses is being deferred on account of prevalent condition in the State of H.P., in the wake of Covid­19 and as such, it would not be fair to curtail the freedom of bail petitioner for indefinite period during the pendency of the trial.

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 first­time 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 Re­Inhuman 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 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.

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.