Ram Chand vs State of Himachal Pradesh

Sandeep Sharma, J.

By way of instant bail petition filed under Section 439 of Cr.PC, prayer has been made on behalf of the bail petitioner for grant of regular bail in

FIR No. 45/18 dated 13.4.2018, under Sections 376, 342 and 506 of IPC, registered at PS Tissa, District Chamba, HP.

Sequel to orders dated 22.5.2018 and 29.5.2018, passed by this Court, ASI Virender Singh I/o, P.S. Tissa, District Chamba, HP, has come present

in Court alongwith record of the case. Record perused and returned. Mr. S.C. Sharma, learned Additional Advocate General, has also placed on

record status report prepared on the basis of the investigation carried out by the investigating agency.

Close scrutiny of the record/status report suggests that on 12.4.2018, complainant/prosecutrix got her statement recorded under Section 154 Cr.PC,

alleging therein that after death of her mother, she started residing with her maternal grandfather at village Myas. She further alleged that six months

back, when she had come to the house of her maternal uncle, bail petitioner namely Ram Chand, who happened to be her cousin, sexually assaulted

her against her wishes. Since she was threatened by the bail petitioner, she did not report the matter to the police. She further alleged that though she

had brought the matter to the notice of other family members, but she was persuaded not to lodge any complaint against the bail petitioner. 10-12 days

prior to lodging of the complaint, bail petitioner came to the residence of his father at Chamba Baalu, wherein she disclosed factum with regard to the

sexual assault committed upon her by the bail petitioner, to her aunt namely Gorkhi, who subsequently brought her to office of SP Chamba. In the

aforesaid background, FIR as detailed herein above, came to be lodged against the bail petitioner and since, 13.4.2018, bail petitioner is behind the

bars.

Pursuant to lodging of aforesaid FIR, statement of complainant/ prosecutrix came to be recorded under Section 164 Cr.PC., before learned JMIC,

Chamba, where prosecutrix, who is 30 years old, resiled from her statement given to police given under Section 154 Cr.PC. She denied the alleged

incident before the learned magistrate and categorically stated that there is no pressure upon her to make the statement. Petitioner preferred bail

application before the learned Additional Sessions Judge, Chamba, District Chamba, but same came to be dismissed vide order dated 15.5.2018.

Mr. K.B. Khajuria, learned counsel representing the bail petitioner vehemently contends that report was lodged on 12.4.2018, whereafter

immediately on 16.4.2018, statement of complainant-prosecutrix under Section 164 Cr.PC, was recorded by the learned magistrate, wherein

complainant-prosecutrix denied the alleged incident and as such, learned Additional Sessions Judge, had no occasion to reject the bail. Mr. Khajuria,

further contends that there was no occasion for the learned Additional Sessions Judge, to conclude that statement under Section 164 of Cr.PC, was

made by the complainant-prosecutrix on the persuasion of the family members of the bail petitioner. Mr. Khajuria, further submits that as per

statement given to the police, alleged incident had taken place 5-6 months prior to the lodging of the complaint and there is no explanation rendered on

record that what prevented the complainant/prosecutrix, who is major, to report this matter to the police at the first instance. Lastly, Mr. Khajuria,

while referring to the medical evidence adduced on record by the Investigating Agency contends that there is no definite opinion, if any qua the

commission of offence allegedly committed by the bail petitioner under Section 376 of IPC and as such, bail petitioner, who has been falsely

implicated, deserves to be enlarged on bail. Mr. Khajuria, submits that investigation in the case is complete and nothing is required to be recovered

from the bail petitioner and as such, no fruitful purpose would be served in case, he is kept behind the bars for an indefinite period, rather his freedom

would be curtailed, which is not permissible under law. Mr. S.C. Sharma, learned Additional Advocate General, while acknowledging the factum with

regard to the statement having been made by the prosecutrix under Section 164 Cr.PC, wherein she resiled from her statement, contends that

possibility of exerting pressure upon the complainant-prosecutrix cannot be ruled out in view of the relationship of the bail petitioner with the

complainant-prosecutrix and as such, learned Additional Sessions Judge, rightly rejected the bail application having been preferred on behalf of the bail

petitioner. Mr. Sharma, further contends that keeping in view the gravity of offence allegedly committed by the bail petitioner, he does not deserve to

be shown any leniency, rather needs to be dealt with severely. Learned Additional Advocate General, also states that no benefit can be drawn by the

petitioner from the medical evidence adduced on record because admittedly, alleged incident took place 5-6 months prior to the lodging of the

complaint i.e. 12.4.2018.

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

Having carefully perused statement made by the complainant-prosecutrix, who is 30 years old, this Court is persuaded to agree with the contention

raised by the learned counsel representing the petitioner that there was no occasion for the learned Additional Sessions Judge, to conclude that

possibility of exerting pressure upon the bail petitioner by the family members on the prosecutrix cannot be ruled out. It is nowhere mentioned in the

order that material, if any, was produced by the Investigating Agency before the Court to demonstrate that complainant- prosecutrix was compelled to

resile from her original statement given to the police under Section 154 Cr.PC. It clearly emerges from the statement recorded under Section 164

Cr.PC that JMIC, specifically asked the complainant-prosecutrix that whether she is giving this statement under some pressure but she specifically

stated that she is not under any kind of pressure. Apart from above, it is not in dispute that alleged incident took place 5-6 months prior to the lodging

of the complaint dated 12.4.2018, but there is no explanation available on record that why complainant-prosecutrix kept mum for almost 6 months.

Though, complainant prosecutrix has alleged that she was threatened by the bail petitioner and persuaded by the family members not to lodge any

complaint, but it is not understood that why she resiled from her initial statement given to police while making statement under Section 164 Cr.PC.

There is no material placed on record suggestive of the fact that the complainant-prosecutrix is insane or incapable of understanding the things, rather

careful perusal of the statement made by her under Section 164 of Cr.PC, clearly suggests that she of her own disclosed to the JMIC that nothing

wrong had happened.

Leaving everything aside, medical evidence adduced on record, especially report of FSL nowhere indicates towards the commission of offence, if

any, under Section 376 IPC. Though aforesaid aspects of the matter are to be considered and decided by the Court below on the basis of material

adduced on record by the prosecution, but at this stage, this Court having perused statement made by the complainant under Section 164 Cr.PC, sees

no reason to keep the bail petitioner behind the bars for an indefinite period, especially, when investigation is complete and nothing is required to be

recovered from the bail petitioner. Repeatedly, it has been held by the Hon’ble Apex Court as well as this Court that freedom of an individual is

utmost importance and cannot be curtailed for an indefinite period.

Needless to say, guilt, if any, of the bail petitioner is yet to be proved in accordance with law by the prosecution by leading cogent and convincing

evidence. It is well settled that till the time a person is not found guilty, one 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) SCC218, 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.