Pitamber Singh vs State Of Himachal Pradesh

Sandeep Sharma, J

Sequel to order dated 11.1.2022, whereby the petitioner was ordered to be enlarged on bail in case FIR No. 161/2021 dated 24.12.2021, registered

at Police Station Damtal, District Kangra, H.P., under Sections 376 and 506 of IPC, respondent-state has filed the status report. ASI Raj Singh, I/O

P.S. Damtal, District Kangra, H.P., has also come present with the records. Records perused and returned.

Close scrutiny of record/status report made available to this Court reveals that on 24.12.2021, victim-prosecutrix lodged a complaint at PS Damtal,

District Kangra, H.P., alleging therein that she works in a private company and few months back, had come in contact with the bail petitioner, who

assured to help her in the work. She alleged that having believed that petitioner is good person, she went to Pathankot alongwith him on 2- 3

occasions. She further alleged that on 26.10.2021, bail petitioner told her that he has to go to Lodhwa in connection with some work and as such, she

reached Damtal, from where he took her to Lodhwa. She alleged that at Lodhwa, bail petitioner took her in a hotel and made him to consume the soft

drink containing intoxicants and thereafter, taking undue advantage of her unconsciousness sexually assaulted her against her wishes. She alleged that

when she regained consciousness, she found herself in naked condition and thereafter, bail petitioner extended threats to her. In the aforesaid

background, FIR detailed herein above came to be lodged against the bail petitioner.

Mr. Arvind Sharma, learned Additional Advocate General while fairly admitting factum with regard to completion of investigation and joining of the

investigation by the present bail petitioner submits 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 behalf of the petitioner for grant of

bail deserves outright rejection.

Having heard learned counsel for the parties and perused material available on this record, this Court finds that prior to lodging of the FIR at hand,

victim-prosecutrix of her own volition and without there being external pressure had been meeting the bail petitioner and on the date of the alleged

incident, she of her own volition after having received telephonic call from the bail petitioner had gone to Damtal and from where, they went to

Lodhwa in connection with some work. Though victim-prosecutrix has claimed that bail petitioner made her to consume some cold drink containing

intoxicants, but since FIR came to be lodged after a delay of two months, aforesaid factum, if any, with regard to intoxication never came to be

ascertained by the investigating agency. Moreover, record reveals that both bail petitioner and the victim-prosecutrix entered their signatures on the

hotel register and thereafter, stayed in the hotel and as such, this Court finds it difficult to believe and presume that bail petitioner having found lady

lying in the room sexually assaulted her against her wises. Material available on record, especially statement of victim- prosecutrix recorded under

section 164 CrPC, nowhere persuades this court to agree with the submissions of learned Additional Advocate General that bail petitioner taking

undue advantage of innocence of the victim-prosecutrix sexually assaulted her against her wishes, rather statement of victim-prosecutrix itself

suggests that she was in constant touch with the petitioner and had been meeting him frequently. At the first instance, victim-prosecutrix refused to

undergo medical test, but even thereafter, medical report does not support the case of the prosecution. Leaving everything aside, there is no

explanation rendered on record qua the delay in lodging the FIR. Alleged incident occurred on 22.9.2022, whereas FIR came to be lodged on

24.12.2021. Since bail petitioner has already joined investigation and nothing remains to be recovered from him, as has been fairly stated by Additional

Advocate General, this court sees no reason for his custodial interrogation.

Though case at hand is to be decided by the court below in the totality of evidence collected on record by the investigating agency, but having taken

note of the aforesaid glaring aspects of the matter, there appears to be no reason for this court to let the bail petitioner incarcerate in jail for an

indefinite period, during trial, especially when nothing remains to be recovered from him. Hon’ble Apex Court as well as this Court in catena of

cases have repeatedly held that one is deemed to be innocent till the time guilt, if any, of his/her is not proved in accordance with law. In the case at

hand also, guilt, if any, of the accused is yet to be proved in accordance with law, by leading cogent and convincing material on record. Apprehension

expressed by the learned Additional Advocate General that in the event of petitioner’s 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 stated by the learned counsel for the petitioner.

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 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.â€​

In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218, The Hon’ble Apex Court has held as under:-

“ This Court in Sanjay Chandra v. CBI, 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 or 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

to 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 ad 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 the 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€​

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.

Reliance is placed on judgment passed by the Hon’ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC

731, relevant para whereof has been reproduced herein below:-

“11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the

right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6

SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616) Accused, even in cases under TADA, have been released on bail on the

ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh

v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569).

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:

“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.

Consequently, in view of the above, order dated 11.1.2022, passed by this Court, is made absolute, subject to 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.

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 application alone. The petition stands accordingly disposed of.

Copy dasti.