Sourav Gill vs State Of Himachal Pradesh

Sandeep Sharma, J

Through Video Conferencing.

Bail petitioner namely Sourav Gill, who is behind bars since 9.4.2019, has approached this Court in the instant proceedings filed under Section 439 of

Cr.PC, for grant of regular bail in connection with FIR No. 97/18, dated 7.4.2018, under Sections 363, 366-A and 376 of IPC, Section 4 of the

POCSO Act, and 3 (II) (V) of SC/ST Act, registered at P.S. Nurpur, District Kangra, H.P.

Status report filed by the Investigating Agency on the basis of investigation carried out by the Investigating Agency reveals that on6.4.2018,

complainant Som Raj, who is father of the victim-prosecutrix (name withheld) lodged a complaint at PS Nurpur, alleging therein that on 5.4.2018 at

11:00AM his minor daughter ( victim-prosecutrix ) went towards Ghadwal Temple alongwith her friend, but till date, she has not come back.

Complainant while giving detail of one telephone number belonging to person namely Karan alleged that he has apprehension that person namely

Karan has made his daughter to elope with him and as such, appropriate action in accordance with law be taken against him. On investigation, mobile

number given by the complainant was found to be in the name of the bail petitioner and as such, police raided his house at Gurdaspur, but neither

victim-prosecutrix nor bail petitioner was found there. However, present bail petitioner after being contacted on phone disclosed to the police that he

wants to solemnize marriage with victim-prosecutrix. Investigating Officer asked the bail petitioner to come present in police station for getting his

statement recorded. On 7.4.2018, victim-prosecutrix presented herself at Police Chowki Bakshiwala, whereafter she was sent to Civil Hospital,

Nurpur alongwith her mother, but she refused to undergo medical test. However, on 9.4.2018, victim-prosecutrix on her request was medically

examined at Civil Hospital Nurpur. In her statement recorded under Section 164 Cr.PC, victim-prosecutrix stated before the Judicial Magistrate that

bail petitioner took her to Pathankot, where she was made her to consume tea having some intoxicants and thereafter, she was taken to Bakshiwala,

Gurdaspur. She alleged that at Gurdaspur, bail petitioner sexually assaulted her against her wishes. On the basis of statement made by the victim-

prosecutrix as well as initial complaint lodged at the behest of the father of the victim-prosecutrix, FIR detailed herein above came to be lodged against

the present bail petitioner on 7.4.2018. Record reveals that bail petitioner despite repeated notices issued by the Investigating Agency failed to

surrender till 9.4.2019, on which date, he himself surrendered before the ACJM Nurpur and since then, he is behind bars.

Mr. Gaurav Sharma, learned Deputy Advocate General, while fairly admitting that challan stands filed in the competent court of law and nothing

remains to recovered from the bail petitioner strenuously argued that keeping in view the gravity of offence alleged to have been committed by the bail

petitioner, prayer having been made on his behalf for grant of bail deserves outright rejection. Mr. Sharma, while fairly admitting that statement of

victim-prosecutrix stands recorded before the trial court, contends that since bail petitioner absconded for almost one year after registration of FIR,

there is every likelihood of his fleeing from justice in the event of his enlarged on bail and as such, his application for grant of bail may be rejected.

Having heard learned counsel for the parties and perused material available on record, this Court finds considerable force in the submission made

by the learned counsel for the petitioner that there are material contradictions and inconsistencies in the statements made by the victim-prosecutrix to

the police, Judicial Magistrate and before learned Special Judge Kangra. If the initial statement of the complainant, who is father of the victim-

prosecutrix, recorded under Section 154 Cr.PC, is perused, it suggests that present bail petitioner made victim-prosecutrix elope with him from her

house at Thehar, P.O. Gurchaal Tehsil Nurpur, District Kangra, H.P., whereas statement of victim-prosecutrix recorded under Section 164 Cr.PC.,

suggests that she of her own volition on 6.4.2018 went with bail petitioner from her house to Pathankot. If the statement of victim-prosecutrix

recorded in the court of learned Special Judge during trial, is perused, it completely falsifies the case of the prosecution that bail petitioner taking undue

advantage of the innocence and minority of victim-prosecutrix made her to elope with him from her house at Nurpur because victim-prosecutrix in her

statement recorded before the learned trial Court has categorically stated that she after having received telephonic call from the bail petitioner herself

went to Pathankot, from where she was taken to Gurdaspur. It is also not in dispute that at the first instance, victim-prosecutrix refused to undergo

medical test but subsequently after two days, she expressed her intention to undergo medical test. No doubt, victim-prosecutrix at any stage of

investigation could request for her medical test, but her refusal to do the same at the first instance gains significance in light of candid admission made

by her in her cross examination that she was compelled by her parents and police to undergo the medical test. Though there are major contradictions

and inconsistencies in the statements given by the victim-prosecutrix to the police, Judicial Magistrate and before Special Judge, District Kangra, H.p.,

but if all these statements are read in conjunction, it certainly suggest that victim-prosecutrix had prior acquaintance with the bail petitioner and they

used to like each other. Apart from above, it can be safely inferred from the statement made by the victim-prosecutrix that on the date of alleged

incident, she of her own volition after having received telephonic call from the bail petitioner went to the Pathankot to meet him. No doubt, at the time

of the alleged incident, victim-prosecutrix was minor but having noticed her conduct, which is apparent from her statements given to the police, this

Court is unable to accept the contention of learned Deputy Advocate General that bail petitioner took undue advantage of minority and innocence of

the victim-prosecutrix, rather this Court is of the view that she was fully capable of understanding the consequences of her being in the company of

the bail petitioner.

Leaving everything aside, medical evidence adduced on record also does not support the case of the prosecution because as per report of FSL, no

human blood and semen was found on the person of the victim-prosecutrix.

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 having taken note of the aforesaid glaring aspect of the matter, this Court sees no reason to let the bail petitioner

incarcerate in jail for an indefinite period, especially when his guilt is yet to be provide in accordance with law. However, Hon’ble Apex Court as

well as this Court in catena of judgments have held that one is deemed to be innocent till the time his/her guilt is proved in accordance with law. No

doubt, records of the case suggest that bail petitioner failed to make himself available for investigation for almost one year, but it is also not in dispute

that on 9.4.2019, he himself surrendered before the learned ACJM Nurpur and since then, he is behind bars. Apprehension expressed by the learned

Deputy 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.

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. The Hon’ble Apex Court in Sanjay Chandra

versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has categorically held that 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 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.

See. Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218, Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496

T

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 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.

(e) He shall handover passport to the Investigating Agency.

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.