Noor Jamal vs State Of Himachal Pradesh

Sandeep Sharma, J

By way of present petition filed under S.439 CrPC, prayer has been made on behalf of Noor Jamal, who is behind bars for the last three months, for grant of regular bail in FIR No. 6, dated 4.3.2020 under Ss. 363 and 376 IPC and S.4 of Protection of Children from Sexual Offences Act registered at Women Police Station, Nahan, District Sirmaur, Himachal Pradesh.

Besides filing fresh status report, learned Additional Advocate General has also made available record in terms of order dated 17.6.2020 passed by this Court, perusal whereof reveals that on 14.2.2020, Superintendent of Police, District Sirmaur at Nahan, received a communication from Child Welfare Committee, Sirmaur at Nahan, for registration of a case against the bail petitioner. As per statement of Bano Begum, mother of the victim-prosecutrix (name withheld), victim-prosecutrix had run away from the house without her consent and subsequently she came to know that the victim-prosecutrix had gone to Norangabad, Dhaula Kuan and stayed with the bail petitioner. Complainant alleged that the bail petitioner, taking undue advantage of the minor age and innocence of the victim-prosecutrix, sexually abused her, as a consequence of which, victim-prosecutrix gave birth to a male child at Government Hospital, Dadahu, two months back. In the aforesaid background, FIR in question came to be lodged against the bail petitioner.

Mr. Sudhir Bhatnagar, Additional Advocate General, while fairly admitting that the Challan stands filed in the court of learned Special Judge, Sirmaur at Nahan, contends that though nothing remains to be recovered from the bail petitioner but keeping view the gravity of offence alleged to have been committed by bail petitioner, he does not deserve any leniency rather the bail petitioner needs to be dealt with severely as such, petition may be rejected outrightly. Learned Additional Advocate General further contends that though it stands duly established on record that the bail petitioner, who at the relevant time was 20 years of age, taking undue advantage of the minor age and innocence of the victim-prosecutrix, not only made her to elope with him and enticed her for marriage and thereafter, sexually assaulted her, but otherwise also consent, if any, of the victim-prosecutrix being a minor, is immaterial, as such, petition at hand deserves to be dismissed.

Having heard learned counsel for the parties and perused the material available on record, this court finds that the complaint in the case at hand has been lodged after a considerable delay because, as per own statement of the complainant, her minor daughter had run away from the house without her consent and thereafter she had stayed with the bail petitioner at Norangabad, Dhaula Kuan. Complainant disclosed to the police that her daughter delivered a male child at Government Hospital Dadahu about two months back, meaning thereby the alleged incident must have taken place around 11 months prior to the lodging of complaint, but no plausible explanation has been rendered on record qua the inordinate delay in lodging FIR. Besides above, victim-prosecutrix in her statement recorded before the Magistrate under S.164 CrPC, nowhere stated that the bail petitioner made her elope with him against her wishes. Victim-prosecutrix in her statement stated that she, of her own volition solemnised marriage with the bail petitioner. She further stated that no action may be taken against bail petitioner, who is her husband because, in the event of arrest, there is no one to take care of her. In her statement, victim-prosecutrix categorically stated that her marriage was solemnised one year back. As has been noticed herein above, no action ever came to be taken at the behest of the complainant one year back, when allegedly her minor daughter had eloped with the bail petitioner. Leaving everything aside, factum with regard to marriage of bail petitioner and victim-prosecutrix is not in dispute, rather, stands duly established from the statement of the victim-prosecutrix made under S.164 CrPC before Magistrate. Medical evidence adduced on record suggests that the victim-prosecutrix was sexually assaulted in the month of March, 2019. Though, report of FSL reveals that the bail petitioner is the biological father of the child born to the victim-prosecutrix but, as has been noticed herein above, both bail petitioner and victim-prosecutrix have solemnised marriage one year back and had been residing as husband and wife before lodging of the FIR. No doubt, at the time of alleged commission of the offence, victim-prosecutrix was a minor, but having noticed her conduct, which duly reflects in her statement recorded under S.164 CrPC, coupled with the fact that she has admitted the factum with regard to her marriage with the bail petitioner, this Court is unable to accept the contention of learned Additional Advocate General that the victim-prosecutrix was incapable of understanding the consequences of her being in the company of the bail petitioner.

Though the aforesaid aspects of the matter are to be considered and decided by the learned trial Court in the totality of evidence collected on record by the investigating agency but having taken note of the aforesaid glaring aspects of the matter, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when guilt, if any, of the bail petitioner is yet to be proved in accordance with law. Apprehension expressed by learned Additional 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. Otherwise also, in the wake of spread of Covid-19 disease, trial may not conclude in the near future, in which case, bail petitioner would be further detained in jail, resulting in curtailment of his freedom for a longer period.

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 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. Petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs.1,00,000/- with one local surety in the like amount, to the satisfaction of the Magistrate available at the station, 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.

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

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.