Surjeet Kumar vs State Of Himachal Pradesh

Sandeep Sharma, J

Through Video Conferencing.

By way of present petition filed under Section 439 Cr.PC, prayer has been made on behalf of the bail petitioner namely Surjeet Kumar, for grant of

regular bail in case FIR No. 115 of 2019, dated 7.11.2019, under Sections 341,323, 376, 354, 354-A read with Section 34 of IPC, Sections 4 and 8 of

Prevention of Children from Sexual Offence Act, 2012 and Section 67-A of the I.T. Act, registered at police Station, Panchrukhi, District Kangra,

Himachal Pradesh.

Perusal of status report filed in terms of the order dated 30.7.2020, passed by this Court, reveals that complainant namely, Aman Kumar lodged a

complaint at police Station, Panchrukhi, District Kangra, H.P., stating therein that on 2.11.2019, while he alongwith his brother Nitin and two female

friends (name withheld), was walking on Railway line near Panchrukhi, four persons including the present bail petitioner firstly restrained them from

going further and then also gave beatings. Above named complainant also alleged that co-accused namely Sanjeev Kumar, slapped him for no reason,

whereas another accused i.e. bail petitioner behaved indecently with one of his friend (victim/prosecutrix). Complainant alleged that bail petitioner

forcibly made one of his female friend to lie down on the railway track and thereafter made an attempt to sexually assault her against her wishes.

Complainant also alleged that another female friend of him ran away from the spot, but one of co-accused namely, Munish Kumar followed her.

Complainant further alleged that one of the co-accused Abhishek Kumar made their video film and uploaded the same on social media and as such,

appropriate action in accordance with law, be taken against them. In the aforesaid background, FIR, as detailed hereinabove, came to be lodged

against the present bail petitioner as well as other co-accused on 7.11.2019. Save and except present bail petitioner, who is behind bars since

7.11.2019, all the co-accused stand enlarged on bail.

Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly admitting the factum that Challan stands filed in the competent court of

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

committed by him, he does not deserve any leniency. While admitting factum with regard to grant of bail in case of other co-accused, learned

Additional Advocate General contends that present bail petitioner is the main accused, who compelled one of the victim to lie down on a railway track

and thereafter inserted finger in her private part and as such, no parity, if any, can be claimed by the petitioner vis-Ã -vis other co-accused. While

referring to the statements made by the victims/ prosecutrix under section 164 Cr.P.C., learned Additional Advocate General contends that it stands

duly established on record that all the accused including the present bail petitioner with common intention to outrage the modesty of the female friends

of the complainant firstly came to the railway track and thereafter molested two female friends of the complainant and as such, it would not be in the

interest of justice to enlarge the bail petitioner on bail at this stage because in the event of his being enlarged on bail, he may not only flee from justice,

rather may also dissuade the prosecution witnesses from deposing against him.

Having heard learned counsel representing the parties and perused the material available on record, this Court finds that three other co-accused,

who on the date of alleged incident, were with the bail petitioner stand enlarged on bail, this Court finds that the incident took place on 2.11.2019, but

for the reasons best known to the complainant, complaint came to be lodged after five days of the incident i.e. on 7.11.2019. There is no plausible

explanation rendered on record qua the delay in lodging the FIR. Complainant stated that they filed FIR once video allegedly made by one of the co-

accused was uploaded on the social media, but it is not understood that when two friends of the complainant were not only molested, rather an attempt

was made by one of the accused to sexually assault one of the female, what prevented complainant and other victims/prosecutrix to lodge the FIR

immediately after the incident. Similarly, this Court finds that both the victims/prosecutrix in their statements given to the police as well as Judicial

Magistrate under Sections 164 and 161 of Cr.P.C., have not stated something specific against the present bail petitioner that one of the victim-

prosecutrix was made to lie down on the railway track by the accused. Besides above, complainant in her initial version recorded under Section 154

Cr.PC disclosed to the police that her one of the female friend (victim-prosecutrix) subsequently disclosed him that present bail petitioner made an

attempt to insert finger in her private part and there is no specific mention that she was forced to lie down on the railway track. Though, status report

reveals that objectionable video clips have been found in the mobile of one of co-accused, but as per the status report such video was made by co-

accused Abhishek Kumar, not by the present bail petitioner. True, it is that at the time of commission of aforesaid offence punishable under Sections

376 and 354 IPC, present bail petitioner was also present alongwith the other co-accused, but his presence on the spot is not sufficient to conclude his

guilt at this stage, rather Investigating Agency is required to prove the same in accordance with law by leading convincing and cogent evidence.

Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court on the basis of totality of evidence collected on

record by the investigating agency, but having noticed aforesaid aspect of the matter this Court sees no reason to let bail petition incarcerate in jail for

indefinite period during the trial, especially when he has already suffered for more than nine months coupled with the fact that other co-accused stand

already enlarged on bail. Challan stands filed in the competent Court of law and nothing remains to be recovered from the bail petitioner and as such, it

would not be in the interest of justice to curtail the freedom of the bail petitioner for indefinite period during the trial. Moreover, trial of the accused is

likely to be further delayed on account of COVID-19 and as such, prayer made on behalf of the petitioner for grant of bail deserves to be considered.

It has been repeatedly held by Hon’ble Apex Court as well as this Court in catena of cases that one is deemed to be innocent till the time his

/her guilt is not proved, in accordance with law. In the case at hand, the guilt, if any, of the bail petitioner is yet to be proved, in accordance with law.

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 putting the bail petitioner to stringent conditions.

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 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:

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

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€​

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 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:

• whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

• nature and gravity of the accusation;

• severity of the punishment in the event of conviction;

• danger of the accused absconding or fleeing, if released on bail;

• character, behaviour, means, position and standing of the accused;

• likelihood of the offence being repeated;

• reasonable apprehension of the witnesses being influenced; and

• danger, of course, of justice being thwarted by grant of bail.

Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing personal

bond in the sum of Rs. 2,00,000/- (Rs. two lac) with one surety in the like amount, to the satisfaction of the learned trial Court, with following

conditions:

• 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;

• He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

• He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade her

from disclosing such facts to the Court or the Police Officer; and

• He shall not leave the territory of India without the prior permission of the Court.

It is clarified that if the petitioner misuses his 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 bail petition stands disposed of accordingly. Copy dasti.