Vikesh Kumar vs State Of Himachal Pradesh

Sandeep Sharma, J

Through Video Conferencing

Sequel to order dated 10.12.2020, whereby petitioner was ordered to be enlarged on interim bail in the event of his arrest in case FIR No. 39/2020,

dated 4.12.2020, under Sections 376 & 506 of Indian Penal Code, registered at Women Police Station, Solan, District Solan, H.P., respondent-State

has filed status report, prepared on the basis of investigation carried out by the Investigating Agency, perusal whereof reveals that on 4.12.2020,

victim/prosecutrix, aged 24 years (name withheld) lodged a complaint at Women Police Station, Solan, alleging therein that on 17th November, 2020,

bail petitioner had come to her room and sexually assaulted her on the pretext of marriage. She also alleged that prior to aforesaid incident, bail

petitioner had also sexually assaulted her on the pretext of marriage, when he had stayed in her room on 23.09.2020. She also alleged that bail

petitioner, who has now gone to Bangluru, is refusing to marry her and as such, appropriate action in accordance with law be taken against him. In the

aforesaid background, FIR detailed hereinabove, came to be lodged against the present bail petitioner under Sections 376 & 506 of IPC.

Mr. Arvind Sharma, learned Additional Advocate General, while fairly admitting the factum with regard to joining of investigation by the bail

petitioner, in terms of order dated 10.12.2020, contends that though, nothing remains to be recovered from the bail petitioner, but keeping in view the

gravity of the offence alleged to have been committed by the bail petitioner, he does not deserve any leniency and as such, prayer having been made

on his behalf may be rejected. Mr. Sharma, further submits that in the event of petitioner being enlarged on bail, he may not only flee from justice, but

may also attempt to cause harm to the victim/prosecutrix so that she doesn’t depose against him in the Court of law.

Having heard learned counsel for the parties and perused the material available on record, this Court finds that victim/prosecutrix was major and

had prior acquaintance with bail petitioner at the time of alleged incident. Otherwise also, there is no allegation that bail petitioner sexually assaulted

victim/prosecutrix against her wishes, rather allegation is that bail petitioner sexually assaulted her on the pretext of marriage. Moreover, the complaint

having been made by the victim/prosecutrix itself reveals that prior to alleged incident of 17th November, 2020, bail petitioner had come to her room on

23rd September, 2020 and had allegedly sexually assaulted her on the pretext of marriage, but no complaint, if any, ever came to be lodged against the

bail petitioner qua the incident allegedly happened on 23 rd September, 2020, rather own statement made by the victim/prosecutrix, suggests that she

again on 17th November, 2020, permitted the bail petitioner to visit her room, when allegedly, bail petitioner sexually assaulted her on the pretext of

marriage. Having taken note of the conduct of victim/prosecutrix, which is quite apparent from her statements recorded under Sections 154 & 164 of

Cr.P.C, this Court has reason to conclude that the victim/prosecutrix was not incapable of understanding the consequences of her being in the

company of bail petitioner, especially, when it stands duly established on record that both bail petitioner and victim/prosecutrix had prior acquaintance

and they wanted to solemnize the marriage. Though, the aforesaid aspects of the matter are to be considered and decided by the Court below in

totality of the evidence collected on record by the Investigating Agency, but having taken note of the aforesaid glaring aspect of the matter, there

appears to be no justification for custodial interrogation of the bail petitioner, who otherwise has made himself available for investigation pursuant to

directions contained in order dated 10.12.2020. By now, it is well settled law that one is deemed to be innocent till his/her guilt is not proved in

accordance with law and as such, it would not be fair to curtail freedom of bail petitioner for indefinite period during trial, especially when nothing

remains to be recovered from him. 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 him to the stringent conditions.

Reliance is placed on judgment passed by the Hon’ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC

731 , relevant para whereof has been reproduced herein below:-

“11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the

right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6

SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616) Accused, even in cases under TADA, have been released on bail on the

ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh

v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569). Apprehension expressed by learned Deputy

Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting him to the stringent

conditions. As has been taken note herein above, as per medical opinion rendered by the medical officer, victim suffered serious injuries in the alleged

incident but since victim stands discharged from the hospital and he is hale and hearty, this court sees no impediment in accepting the prayer made by

the bail petitioner for grant of bail.

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) SCC 218, 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.

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:

“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.

In view of above, bail petitioner has carved out a case for himself. Consequently, present petition is allowed. Order dated 10.12.2020 is made

absolute, subject to bail petitioner furnishing fresh bail bonds in the sum of Rs.2,00,000/- with one local surety in the like amount, to the satisfaction of

the Investigating Officer/learned Magistrate available at the station, 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 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.