Rafi Mohammed vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner namely Rafi Mohammed, who is behind bars since 28.11.2018, has approached this Court in the instant proceedings filed under

Section 439 of Cr.PC, praying therein for grant of regular bail in connection with FIR No. 123/18, dated 28.11.2018, under Sections 354A (1) (i), 354D

(1) IPC and Section 8 of POCSO Act, registered at P.S. Tissa, District Chamba, H.P.

Sequel to order dated 18.6.2019, ASI Kuldeep Kumar, P.S. Tissa, District Chamba, H.P., has come present alongwith records. Mr. Kunal Thakur,

learned Deputy 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 made available to this Court reveals that on 28.11.2018, complainant namely Smt. Parveen Akhtar, got her statement

recorded with PS Tissa, District Chamba, H.P., alleging therein that on 26.11.2018, at 9:30 am, while her minor daughter victim-prosecutrix (name

withheld) was going to school, present bail petitioner asked her daughter to sit in his jeep. She further alleged that her minor daughter after returning

from school not only disclosed the alleged incident to her, but revealed that in past also, bail petitioner having found her alone, not only touched her

private parts, but also kissed her. On the basis of aforesaid complaint, formal FIR as detailed herein above, came to be lodged against the bail

petitioner on 28.11.2018 i.e. after two days of the alleged incident and since then, he is behind the bars.

Mr. Kunal Thakur, learned Deputy Advocate General fairly states that challan stands filed in the competent court of law and nothing remains to be

recovered from the bail petitioner. He further states that as per information imparted to him, only three prosecution witnesses remain to be examined,

however, statements of complainant as well as victim-prosecutrix stand duly recorded. While opposing prayer made in the petition at hand, Mr.

Thakur, contends that keeping in view the gravity of offence alleged to have been committed by the bail petitioner, he does not deserve any leniency,

rather deserves to be dealt with severely.

Mr. N.K. Thakur, learned Senior counsel representing the petitioner, contends that no case, much less, under Section 354 of IPC is made out

against the bail petitioner because only allegation against the bail petitioner is that he asked the victim-prosecutrix to sit in his jeep. He states that

statements of complainant and victim-prosecutrix stand recorded and as such, there is no impediment, if any, in releasing the bail petitioner on bail,

especially, when he has already suffered for more than eight months. Lastly, Mr. Thakur contends that present bail petitioner is a local resident of the

area and there is no likelihood of his fleeing from justice.

Having heard learned counsel for the parties and perused record made available to this Court, this Court finds that though alleged incident occurred

on 26.11.2018, but FIR in question came to be lodged on 28.11.2018, and there is no plausible explanation rendered on record by the complainant for

delay in lodging the FIR. Apart from above, allegation of the complainant is that her minor daughter disclosed that on the date of alleged incident, bail

petitioner asked her to sit in his jeep. Admittedly, other incidents, as have been taken note herein above, never ever came to be reported to the police

prior to the lodging of present FIR.

Though aforesaid aspects of the matter are to be considered and decided by the court below on the basis of totality of evidence collected on record

by the Investigating Agency, but this Court having perused material available on record at this stage, sees no reason to let the bail petitioner

incarcerate in jail for an indefinite period. Leaving everything aside, this Court cannot lose sight of the fact that bail petitioner is behind bars for more

than eight months and guilt, if any, of him is yet to be proved in accordance with law by the prosecution by leading cogent and convincing evidence

and as such, it would not be appropriate to curtail his freedom for an indefinite period. It is well settled that till the time person is not found guilty,

he/she is deemed to be innocent.

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 has 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.

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.

In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, petitioner has carved out a case for grant of bail,

accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the

sum of Rs. 1,00,000/- with one local surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate/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 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 violate 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.