Rattni Devi vs State of Himachal Pradesh

Bail petitioner, namely, Rattni Devi, who is behind bars since 7.12.2017, has approached this Court by way of instant bail petition filed under

Section 439 of Cr.P.C, praying therein for grant of regular bail in FIR No. 133/2017, dated 7.12.2017, under Sections 376 IPC and Sections 6

and 17 of Protection of Children from Sexual Offences Act, 2012 (POCSO) registered with Police Station Tissa, District Chamba, H.P.

Sequel to order dated 15.1.2018, ASI Sat Pal, Police Station Tissa, District Chamba, H.P. is present alongwith record. Mr. Rajat Chauhan,

learned Law Officer has also filed status report prepared by the Investigating Agency. Record perused and returned.

The record/status report filed on behalf of the Investigating Agency reveals that the FIR mentioned hereinabove came to be lodged at the behest

of the complainant, namely, Ram Dei, who alleged that her minor daughter was enticed and taken away in her absence by the accused, namely,

Sanjeev Kumar and his father Chaman Singh on 25.9.2017. On 26.9.2017, complainant telehoned her daughter, who disclosed that she has been

brought to village Kanori by accused Sanjeev Kumar and his father Chaman Singh. Since families of complainant and accused namely hereinabove

were known to each other and they had also agreed for marriage of daughter of complainant with accused Sanjeev Kumar, complainant thought it

not proper to register any complaint with the police against the aforesaid illegal act of Sanjeev Kumar and Chaman Singh. Allegedly, after one and

half month of aforesaid incident, bail petitioner, who happened to be mother of accused Sanjeev Kumar, came to the village of the complainant

alongwith coaccused Sanjeev Kumar to drop/leave the daughter of the complainant, since no one from the family of the bail petitioner and other

accused came back to take daughter of the complainant, complainant made various efforts to contact bail petitioner as well as the accused but fact

remains that they all refused to take daughter of complainant to their house.

Close scrutiny of report/status report further suggests that the complainant and family of bail petitioner had actually agreed for marriage of the

daughter of complainant with son of bail petitioner. Since daughter of complainant is/ was minor, marriage could not be solemnized immediately

after her engagement. Accused Sanjeev Kumar and his father subsequently visited the house of the complainant and without having obtained

consent of the complainant, took daughter of the complainant to their house, where she allegedly lived for one month and seven days with the

accused Sanjeev Kumar as his wife. Since bail petitioner and other accused refused to solemnize marriage or to take daughter of the complainant

to their house, case under Section 376 IPC and Sections 6 and 17 of POCSO Act came to be registered against present bail petitioner and other

accused on 7.12.2017 and since then they all are behind the bars.

Mr. Kulbhushan Khajuria, learned counsel representing the bail petitioner, while referring to the status report strenuously argued that the

daughter of the complainant was not enticed and taken to the house of the bail petitioner, rather as per own case set up by Investigating Agency,

coaccused Sanjeev Kumar and Chaman Singh came to the house of complainant for taking her daughter alongwith them. Mr. Kulbhushan

Khajuria, learned counsel further contended that there is nothing on record, adduced at this stage by Investigating Agency to suggest that the bail

petitioner has committed crime, if any, under Sections 6 and 17 of POCSO Act. Learned counsel further contended that for the commission of

offence, if any, by co-accused Sanjeev Kumar and Chaman Singh, bail petitioner, who is innocent person, can not be allowed to incarcerate in jail

for indefinite period.

Learned Counsel further contended that it is quite apparent from the record that the daughter of the complainant had been visiting the house of

the bail petitioner in the past also and she was engaged with her son, namely, Sanjeev Kumar and as such, it could not be concluded that bail

petitioner has committed any crime by keeping daughter of the complainant at her house. Lastly, Mr. Kulbhushan Khajuria, Advocate contended

that since all the family members of the petitioner are behind the bars pursuant to filing of aforesaid FIR and there is no one left at home to take

care of house as well as cattles and as such, she be ordered to be released on bail.

Mr. Rajat Chauhan, learned Law Officer while opposing the aforesaid prayer having been made by Mr. Kulbhushan Khajuria, learned Counsel

contended that keeping in view the gravity of offence allegedly committed by bail petitioner and other co-accused, she does not deserve to be

shown any leniency, rather needs to be dealt with severely. While refuting the submission of learned counsel representing the petitioner that no

active role was played by the bail petitioner, Mr. Rajat Chauhan, learned Law Officer contended that it is specifically mentioned in the statement of

minor recorded under Section 164 of Cr.P.C that on insistence of bail petitioner she/prosecutrix lived with accused Sanjeev Kumar as his wife for

more than one month. Mr. Chauhan, learned law officer further contended that true it is that as per investigation both families had agreed to

solemnize the marriage of daughter of the complainant with co-accused Sanjeev Kumar but since daughter of the complainant is minor, no marriage

of her could be solemnized before her attaining the majority.

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

Perusal of the record clearly suggests that the bail petitioner and her family were closely known to the complainant and they had been meeting

with each other in the past. It also emerges from the record that both the families had agreed to solemnize the marriage of daughter of the

complainant with son of the bail petitioner. Daughter of the complainant had been visiting the house of the bail petitioner in the past also. This

Court, after having perused the report, finds some force in arguments of Mr. Kulbhushan Khajuria, learned Counsel for the petitioner that daughter

of the complainant was brought to the house of the bail petitioner by accused Sanjeev Kumar and his father Chaman Singh and bail petitioner was

not party in the aforesaid act of persons named above. Rather she alongwith her son came to drop daughter of the complainant to her paternal

house. True, it is that as per investigation report, daughter of the complainant remained in house of bail petitioner for one month, but that may not

be sufficient to conclude at this stage that bail petitioner abeted other co-accused to commit offence, if any, against daughter of the complainant.

Since daughter of the complainant had been visiting the house of the bail petitioner in the past also, it can be presumed that daughter of the

complainant, of her own will, remained with the family of the bail petitioner during the aforesaid period. This Court also can not loose sight of the

fact that all the family members of the bail petitioner are behind the bars and no body is there to look after house as well as cattles of the bail

petitioner. Leaving everything aside, nothing has been placed on record by the Investigating Agency, from where it can be inferred that if petitioner

is enlarged on bail, she shall not make herself available for interrogation, if required. Mr. K.B. Khajuria, learned Counsel for the petitioner

undertakes that the bail petitioner shall make herself available for investigation and trial as and when required by the Investigating Agency.

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. Petitioner is local resident of the place mentioned in the bail application and she shall remain available to face the trial and

undergo imprisonment, if any, imposed on her.

The Hon''ble Apex Court in Sanjay Chandra Versus Central Bureau of Investigation ( 2012) 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 tobe 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.

The Apex Court in Prasanta Kumar Sarkar versus Ashis Chaatterjee 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, this petition is allowed and petition is ordered to be released on bail in case FIR No. 133 of 2017, dated 07.12.2017,

registered at Police Station Tissa, District Chamba, under Section 376 of IPC and Sections 6 and 17 of POCSO Act, subject to her furnishing

personal bond in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of CJM/JMIC concerned and following conditions:-

(a) Petitioner shall make herself 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) Petitioner shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c) Petitioner 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 of the Police Officer; and

d) Petitioner 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 of bail imposed upon her, the investigating agency shall be

at liberty to move this Court for cancellation of the bail.

Any observations made hereinabove shall not 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 disposed of accordingly.