Ram Lal vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner, who is behind the bars since 16.5.2020, has approached this Court in the instant proceedings filed under Section 439 CrPC for grant

of regular bail in FIR No. 66, dated 16.5.2020, lodged at Police Station, Paonta Sahib, District Sirmaur, Himachal Pradesh.

Perusal of status report filed in terms of order dated 11.8.2020, reveals that the Police, after having received information that a girl has delivered a

child, recorded statement of the victim-prosecutrix (name withheld) under S.154 CrPC, wherein she stated that she is 20 years old and for the last

three years had been working in Paab Tikka Company, Paonta Sahib. She alleged that for the last four years, she is in constant touch with the bail

petitioner, who used to insist for marriage. She alleged that on account of acquaintance with the bail petitioner, petitioner had started visiting her house

at Paonta Sahib. In November, 2019, bail petitioner sexually assaulted her on the pretext of marriage. She alleged that again in March, 2020, bail

petitioner sexually assaulted her on the pretext of marriage. On 15.5.2020, she was brought to hospital by neighbourer on account of pain in her

abdomen, where she delivered a child. She alleged that since the bail petitioner has refused to marry her, appropriate action, in accordance with law

may be taken against the bail petitioner. In the aforesaid background, FIR detailed herein above came to be registered against the bail petitioner on

16.5.2020 and since then he is in custody.

Mr. Arvind Sharma, learned Additional Advocate General, while fairly admitting the factum with regard to filing of challan in the competent court of

law, contends that though nothing remains to be recovered from the bail petitioner, however, keeping in view the gravity of the offence alleged to have

been committed by the bail petitioner, he does not deserve any leniency, as such, prayer made in the present petition for grant of bail may be rejected

outrightly.

Having heard learned counsel for the parties and perused the material available on record, this Court finds that the victim-prosecutrix, who is 20

years old, had prior acquaintance with the bail petitioner and they had been meeting each other for the last four years. As per own statement of the

victim-prosecutrix, she was sexually assaulted in the month of November, 2019 but there is no material worth credence available on record suggestive

of the fact that victim-prosecutrix had lodged complaint at that time against the bail petitioner, rather she of her own kept on permitting bail petitioner

to visit her house till March, 2020, when she was again sexually assaulted against her wishes. Since, at the time of commission of alleged offence,

victim-prosecutrix was a major, this Court is not inclined to agree with the contention of learned Additional Advocate General that the bail petitioner

kept on sexually assaulting the victim-prosecutrix against her wishes on account of the innocence, rather, this Court having taken note of the statement

of the victim-prosecutrix is convinced that she, of her own volition and without any external pressure kept on joining the company of the bail petitioner,

with whom she wanted to solemnise marriage. Leaving everything aside, medical evidence adduced on record nowhere supports the case of the

prosecution because RFSL, in its report, has specifically concluded that though the victim-prosecutrix is the mother of the child delivered by her in the

hospital but the bail petitioner is not the biological father of the child, as such, this Court sees no reason to keep the bail petitioner behind the bars for

an indefinite period during trial. Moreover, Hon'ble Apex Court and this Court in a catena of judgments have held that a person is deemed to be

innocent, till the time his/her guilt is proved in accordance with law. In the case at hand, though aforesaid aspects of the matter are to be considered

by learned trial Court in the totality of evidence collected by the investigating agency but having taken note of the medical evidence adduced on record

coupled with the fact that nothing remains to be recovered from the bail petitioner, there appears to be no justification to let the bail petitioner

incarcerate in jail, for an indefinite period during trial, which is further likely to be delayed on account of Covid-19 pandemic. 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

imposing stringent conditions upon the bail petitioner.

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.â€​

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 Investigating

Officer/learned trial Court concerned, 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.

Copy Dasti.