Parvesh Kumar, Vikkey @APPELLANT@Hash State of Himachal Pradesh

Sandeep Sharma, J.

Bail petitioner, who is behind the bars since 22. 2.2018, has approached this court in the instant proceedings under S. 439 CrPC, praying therein for

grant of regular bail in case FIR No. 27/18 dated 22.2.2018 under Ss. 363, 366A and 376 IPC, and Ss. 4 and 21 of the Protection of Children from

Sexual Offences Act, registered at Police Station, Bangana, Una, Himachal Pradesh.

Sequel to order dated 20.9.2018, ASI Sant Pal Sharma, has come present with the record. Mr. Dinesh Thakur, learned Additional Advocate

General has also placed on record status report, prepared on the basis of investigation carried out by the investigating agency. Record perused and

returned.

Close scrutiny of the record reveals that FIR, detailed herein above, came to be lodged at the behest of the complainant namely Mukhtyaro Devi,

who alleged hat her minor daughter i.e. prosecutrix has been kidnapped and sexually assaulted by the present bail petitioner. After lodging of aforesaid

complaint, police recovered the prosecutrix from one tea shop at place called, ‘Dhundhla’. Prosecutrix in her statement given to the police,

categorically stated that she, of her own volition, had joined the company of bail petitioner and he has not committed any offence, much less, offence

under S. 376 IPC. Status report further reveals that the prosecutrix refused to undergo medical examination. Police also got her statement recoded

under S. 164 CrPC before the concerned Magistrate, wherein she reiterated that she, of her own volition, had joined the company of the bail petitioner

and at no point of time, he had compelled her to join his company. Though, initially, prosecutrix had refused to under go medical examination but after

lodging of FIR, detailed herein above, she was got medically examined, report whereof indicates that she was subjected to sexual intercourse. Further,

the prosecutrix in her statement given before Magistrate under S. 164 CrPC, categorically stated that bail petitioner has not committed anything wrong

with her and she, of her own volition, had joined his company. Challan in the case stands filed in the competent Court of law and as per record made

available to this court, all the material prosecution witnesses have not supported the case of the prosecution.

Learned counsel for the bail petitioner, while referring to the record/status report, vehemently argued that no case, if any, is made out against the

bail petitioner under S. 376 IPC, because all the material prosecution witnesses have resiled from their initial statements given to the police. While

specifically inviting attention of this court to the statement of prosecutrix recorded under S. 164 CrPC, learned counsel representing the bail petitioner

contended that it clearly suggests that the prosecutrix was not kidnapped rather, she, of her own volition, joined the company of the bail petitioner and

as such, no case, if any, could be made against bail petitioner under S. 376 IPC.

During proceedings of the case, learned counsel for the bail petitioner also made available certified copies of the statements/ depositions having

been made by the material prosecution witnesses during trial to demonstrate that no case is made out against the bail petitioner and as such, he

deserves to be enlarged on bail.

Mr. Dinesh Thakur, learned Additional Advocate General, on the instructions of the Investigating Officer, who is present in the court, fairly

acknowledged that all the material prosecution witnesses i.e. complainant, prosecutrix, father and aunt of prosecutrix, have resiled from their initial

statements and as such, possibility of bail petitioner being convicted in the present case is very bleak and remote. Mr. Thakur, learned Additional

Advocate General also contended that though the record clearly suggests that the prosecutrix at the time of alleged accident was a minor but since

she has categorically stated before the court below that no wrong has been committed upon her in the alleged incident and she, of her own volition,

had joined the company of the bail petitioner, there is no likelihood of bail petitioner being punished for the committed offence punishable under S. 376

IPC and S. 4 of Protection of Children from Sexual Offences Act.

I have heard the learned counsel for the parties and gone through the record carefully.

Having heard the learned counsel representing the parties and perused the material available on record especially, statements/depositions having

been made by the material prosecution witnesses during trial, which are taken on record and made part of the case, file, this court finds that the

chances of bail petitioner being convicted in the present case, are very bleak/remote. In the case at hand, prosecutrix from day one has maintained

that the bail petitioner has not committed any wrong upon her and she, of her own volition, had joined his company, as such, this court sees no reason

to allow the bail petitioner to incarcerate in jail for indefinite period, especially when he has already suffered for more than eight months. Though,

aforesaid aspects of the matter are to be considered and decided by the learned trial Court, in the totality of the evidence available on record, but this

court having perused record sees no reason to keep the bail petitioner behind the bars for indefinite period and as such, he deserves to be enlarged on

bail.

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 guilt has not been 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.â€​

By now it is well settled that gravity alone cannot be 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. The Hon’ble Apex Court in Sanjay

Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; has been 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.â€​

In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held as under:

“This Court in Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40, also involving an economic offence of formidable magnitude,

while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure

that an accused person would stand his trial when called upon and that 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 found guilty. It was underlined that the object of bail is neither

punitive nor preventive. This Court sounded a caveat 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 a conduct whether an accused has been convicted for it or not or to refuse bail to an

unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an

accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by balancing the valuable

right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the

relevant considerations while examining the application of bail but it was not only the test or the factor and that grant or denial of such privilege, is

regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under-trial prisoners for an indefinite

period would amount to violation of Article 21 of the Constitution was highlighted.â€​

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 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.

In view of above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing bail bonds in the sum of

Rs.1,00,000/- (Rs. One Lakh) with one local surety in the like amount, to the satisfaction of the learned trial court, besides 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

instant petition alone. The petition stand accordingly disposed of.