Virender Singh vs State Of H.P

Anoop Chitkara, J

An unmarried boy aged 24 years, who is in custody for around three months, because a minor girl aged 16 years, came to his home as they love

each other, stayed there, had coitus, which on the intervention of her parents led to the registration of FIR, has now come up before this Court seeking

regular bail on the ground of the conduct of the victim.

Earlier, the petitioner had filed a bail petition under Section 439 CrPC before this Hon’ble High Court, which was registered as Cr.MP(M)

No.2126/2020. However, vide order dated 17.12.2020, the bail petition was dismissed as withdrawn.

The bail petition is silent about criminal history, however, Mr. Karun Negi, Advocate, learned counsel for the bail petitioner states on instructions

that the petitioner has no criminal past relating to the offences prescribing sentence of seven years and more, or when on conviction, the sentence

imposed was more than three years. Status report also does not mention any criminal history.

Briefly, the allegations against the petitioner are that on 1st Nov 2020, the victim's father informed Police Station, Shillai that his daughter is missing

from home. He also told the police that after a frantic search, they realized that one Virender Singh (petitioner herein) had allured her away with him.

After that, they noticed the victim in the compound of Virender Singh’s house, who himself was not present at home on that day. On interaction

with her parents, she said that she had voluntarily left home because she was in love with Virender. She refused to return home. Despite efforts, she

refused to accompany them. After that, the victim and her parents visited the Counselor of Child Welfare Centre in Nahan, where the victim told her

mother that the petitioner allured her.

Based on these allegations, the police registered FIR under Section 363, IPC. On 3rd Nov 2020, the police took the victim for her medical

examination in CHC, Shillai. A lady doctor examined the victim and preserved swabs from her body. Subsequently, she was produced before the

learned Additional Chief Judicial Magistrate, Paonta Sahib, for recording her statement under Section 164 CrPC. On the evening of 3rd Nov 2020, the

police arrested the petitioner. On 5th Nov 2020, the petitioner absconded from the police custody; however, he was nabbed without much time loss.

The investigation further revealed that the petitioner used to propose to the victim for the last two years. In September 2020, the petitioner brought her

to his sister's house, which was nearer to the victim's house. In his sister’s home, the petitioner established coitus with her. She stayed there for 6-

7 days, and the petitioner gave a proposal for a wedding. On 31st Oct 2020, the accused again met her on the village path and allured her to come to

his home under the pretext of tutoring her. On 1st Nov 2020, at 6 in the morning, she fell into his trap and went towards his house. The accused met

her on the way and took her with him. The investigation further revealed the victim's age to be 16 years, as her birth date was 26.6.2004. Thus, being

under 18 years of age, she could not have consented to leave her home and agree to sexual intercourse.

Mr. Sudhir Thakur, Sr. Advocate, representing the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the

petitioner and family.

Mr. Ajay Vaidya, Ld. Sr. Additional Advocate General, contends the victim was minor and could not have consented to sex. The alternative

contention on behalf of the State is that if this Court is inclined to grant bail, such a bond must be subject to very stringent conditions.

The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can

be taken care of by imposing elaborative and stringent conditions. In Sushila Aggarwal, (2020) 5 SCC 1, Para 92, the Constitutional Bench held that

unusually, subject to the evidence produced, the Courts can impose restrictive conditions.

REASONING:

Neither S. 376 of the Indian Penal Code, 1860, (IPC), nor S. 6 of the Protection of Children from Sexual Offences Act, 2012, (POCSO) create any

restriction on grant of bail. If the legislature intended to bar bails altogether, then nothing had stopped them from making a similar bar as they put in

place vide S. 37 of the Narcotics Drugs and Psychotropic Substances Act, 1985, (NDPS) or for S. 438 under Scheduled Caste and Scheduled Tribe

(Prevention of Atrocities) Act, 1989, (SCSTPOA).

Until 19th June 2012, when the Government notified POCSO, and till 1st April 2013, when the Government notified IPC amendments, the age of

consent was 16 years. It is common knowledge that today's generation is far ahead then what they were in the 20th century. Availability of

smartphones and better access to internet has brought all knowledge instantly to their palms. Be that as it may, in a democracy, the Legislative

wisdom reflects the people's will. In this backdrop, the Courts have to be overly concerned. When the legislature says that a child under 18 years of

age cannot consent, then how much mature, intelligent, or informed a child maybe, she cannot consent.

Undoubtedly, the victim is a minor under 18 years of age, and legally, neither accused could have taken her from her parents nor consented to

coitus. It is also beyond any cavil that if the accused had taken a minor away even by alluring or on a false promise, it again prima facie is an offence.

The ground reality is that even earlier, the victim had stayed out of her home for six days. This time, she left her family on her own. The statutory

difficulty of the accused is that the girl was a minor, and the accused allegedly allured her to leave home.

On the contrary, the girl was bold enough to declare that she was in love with the accused. When her parents asked her to return home, she

refused to go with them because she was in love with the petitioner. The girl's unequivocal declaration about her passion for the boy is not an ordinary

activity for a young girl in a Hindu rural society.

The boy is aged 24 years, whereas the girl is aged 16. Even though the age gap between them is enormous, this is probably because of social

background. Families arrange marriages in the Indian social setup. In such arrangements, mostly, the bride is younger than the groom, sometimes with

a considerable age gap. The children also notice that their father is older than their mother. Such social settings might be a catalyst for a girl to fall in

love with a more senior boy. Even otherwise, it is not unusual that a girl aged 16 years of age falls in love with a boy aged 24 years or vice-versa.

Love is indeed blind.

Undoubtedly, he should not have had coitus with the victim, but allegedly still, he went ahead with it. It is also beyond any comprehension that he

should have refrained from caressing, fondling, and talking of the penetrative act. Undoubtedly, due to the lack of an appropriate curriculum on sex

education in schools, people do not know what is legally prohibited. It is for the Executive to think about sex education. However, it is a policy matter

for the policymakers to consider, and this Court refrains from commenting upon it.

After perusing the case's facts and circumstances, it seems that the petitioner and the victim knew each other and were romantically involved. It is

not a case of forcible sexual relationship; instead, the victim surrendered to the petitioner's physical desires out of her love and affection towards him.

The victim's boldness to declare her passion towards the petitioner in the presence of her father and Police speaks volumes. Further, she also told

them explicitly that she left her home out of her own free will and refused to go back with her father. These facts point out that the victim, being 16

years of age, though a minor, voluntarily left her home. Therefore, the rigors to reject bail and reasons to continue incarceration are reduced by the

mitigating factors in the present case.

Kidnapping and rape are indeed very heinous offences. However, at the bail stage, the Court has to consider prima facie under what

circumstances the offence is committed by the accused. Considering the same, the Court believes that the petitioner has made out a case for bail, and

his further incarceration is uncalled for.

In Anversinh alias Kiransinh Fatesinh Zala v State of Gujarat, 2021 SCC OnLine SC 19, a three Judge bench of Supreme Court holds,

ANALYSIS

I. Whether a consensual affair can be a defence against the charge of kidnapping a minor?

Having given our thoughtful consideration to the rival submissions, it appears to us that although worded succinctly, the impugned judgment does

not err in appreciating the law on kidnapping. It would be beneficial to extract the relevant parts of Sections 361 and 366 of IPC which define

‘Kidnapping from Lawful Guardianship’ and consequential punishment. These provisions read as follows:

“361. Kidnapping from lawful guardianship .â€"Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen]

years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without

the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

Explanation.â€"The words “lawful guardian†in this section include any person lawfully entrusted with the care or custody of such minor or other

person.

Kidnapping, abducting or inducing woman to compel her marriage, etc.â€"Whoever kidnaps or abducts any woman with intent that she may be

compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to

illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either

description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this

Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing

that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid].â€​

A perusal of Section 361 of IPC shows that it is necessary that there be an act of enticing or taking, in addition to establishing the child's minority

(being sixteen for boys and eighteen for girls) and care/keep of a lawful guardian. Such ‘enticement’ need not be direct or immediate in time

and can also be through subtle actions like winning over the affection of a minor girl. [Thakorlal D Vadgama v. State of Gujarat, (1973) 2 SCC 413]2

However, mere recovery of a missing minor from the custody of a stranger would not ipso-facto establish the offence of kidnapping. Thus, where the

prosecution fails to prove that the incident of removal was committed by or at the instigation of the accused, it would be nearly impossible to bring the

guilt home as happened in the cases of King Emperor v. Gokaran [ AIR 1921 Oudh 226] and Emperor v. Abdur Rahman [AIR 1916 All 210].

Adverting to the facts of the present case, the appellant has unintentionally admitted his culpability. Besides the victim being recovered from his

custody, the appellant admits to having established sexual intercourse and of having an intention to marry her. Although the victim's deposition that she

was forcefully removed from the custody of her parents might possibly be a belated improvement but the testimonies of numerous witnesses make out

a clear case of enticement. The evidence on record further unequivocally suggests that the appellant induced the prosecutrix to reach at a designated

place to accompany him.

Behind all the chaff of legalese, the appellant has failed to propound how the elements of kidnapping have not been made out. His core contention

appears to be that in view of consensual affair between them, the prosecutrix joined his company voluntarily. Such a plea, in our opinion, cannot be

acceded to given the unambiguous language of the statute as the prosecutrix was admittedly below 18 years of age.

A bare perusal of the relevant legal provisions, as extracted above, show that consent of the minor is immaterial for purposes of Section 361 of

IPC. Indeed, as borne out through various other provisions in the IPC and other laws like the Indian Contract Act, 1872, minors are deemed incapable

of giving lawful consent [Satish Kumar Jayanti Lal Dabgar v. State of Gujarat, (2015) 7 SCC 359]. Section 361 IPC, particularly, goes beyond this

simple presumption. It bestows the ability to make crucial decisions regarding a minor's physical safety upon his/her guardians. Therefore, a minor

girl's infatuation with her alleged kidnapper cannot by itself be allowed as a defence, for the same would amount to surreptitiously undermining the

protective essence of the offence of kidnapping.

Similarly, Section 366 of IPC postulates that once the prosecution leads evidence to show that the kidnapping was with the intention/knowledge to

compel marriage of the girl or to force/induce her to have illicit intercourse, the enhanced punishment of 10 years as provided thereunder would stand

attracted.

The ratio of S. Varadarajan [(1965) 1 SCR 243], although attractive at first glance, does little to aid the appellant's case. On facts, the case is

distinguishable as it was restricted to an instance of “taking†and not “enticementâ€. Further, this Court in S. Varadarajan (supra) explicitly

held that a charge of kidnapping would not be made out only in a case where a minor, with the knowledge and capacity to know the full import of her

actions, voluntarily abandons the care of her guardian without any assistance or inducement on part of the accused. The cited judgment, therefore,

cannot be of any assistance without establishing: first, knowledge and capacity with the minor of her actions; second, voluntary abandonment on part

of the minor; and third, lack of inducement by the accused.

Unfortunately, it has not been the appellant's case that he had no active role to play in the occurrence. Rather the eye-witnesses have testified to

the contrary which illustrates how the appellant had drawn the prosecutrix out of the custody of her parents. Even more crucially, there is little to

suggest that she was aware of the full purport of her actions or that she possessed the mental acuities and maturity to take care of herself. In addition

to being young, the prosecutrix was not much educated. Her support of the prosecution version and blanket denial of any voluntariness on her part,

even if presumed to be under the influence of her parents as claimed by the appellant, at the very least indicates that she had not thought her actions

through fully.

It is apparent that instead of being a valid defence, the appellant's vociferous arguments are merely a justification which although evokes our

sympathy, but can't change the law. Since the relevant provisions of the IPC cannot be construed in any other manner and a plain and literal meaning

thereof leaves no escape route for the appellant, the Courts below were seemingly right in observing that the consent of the minor would be no

defence to a charge of kidnapping. No fault can thus be found with the conviction of the appellant under Section 366 of IPC.

II. Whether the punishment awarded is just, and ought there be leniency given the unique circumstances?

Having held so, we feel that there are many factors which may not be relevant to determine the guilt but must be seen with a humane approach at

the stage of sentencing. The opinion of this Court in State of Madhya Pradesh v. Surendra Singh [(2015) 1 SCC 222] on the need for proportionality

during sentencing must be re-emphasised. This Court viewed that:

“13. We again reiterate in this case that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine

the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the

manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the

question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights

of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. Meagre sentence imposed solely on

account of lapse of time without considering the degree of the offence will be counterproductive in the long run and against the interest of the

society.â€​

[emphasis supplied]

True it is that there cannot be any mechanical reduction of sentence unless all relevant factors have been weighed and whereupon the Court finds

it to be a case of gross injustice, hardship, or palpably capricious award of an unreasonable sentence. It would thus depend upon the facts and

circumstances of each case whether a superior Court should interfere with, and resultantly enhance or reduce the sentence. Applying such

considerations to the peculiar facts and findings returned in the case in hand, we are of the considered opinion that the quantum of sentence awarded

to the appellant deserves to be revisited.

We say so for the following reasons: first, it is apparent that no force had been used in the act of kidnapping. There was no pre-planning, use of

any weapon or any vulgar motive. Although the offence as defined under Section 359 and 361 of IPC has no ingredient necessitating any use of force

or establishing any oblique intentions, nevertheless the mildness of the crime ought to be taken into account at the stage of sentencing.

Second, although not a determinative factor, the young age of the accused at the time of the incident cannot be overlooked. As mentioned earlier,

the appellant was at the precipice of majority himself. He was no older than about eighteen or nineteen years at the time of the offence and admittedly

it was a case of a love affair. His actions at such a young and impressionable age, therefore, ought to be treated with hope for reform, and not

punitively.

Third, owing to a protracted trial and delays at different levels, more than twenty-two years have passed since the incident. Both the victim and

the appellant are now in their forties; are productive members of society and have settled down in life with their respective spouses and families. It,

therefore, might not further the ends of justice to relegate the appellant back to jail at this stage.

Fourth, the present crime was one of passion. No other charges, antecedents, or crimes either before 1998 or since then, have been brought to our

notice. The appellant has been rehabilitated and is now leading a normal life. The possibility of recidivism is therefore extremely low.

Fifth, unlike in the cases of State of Haryana v. Raja Ram [(1973) 1 SCC 544 ] and Thakorlal D. Vadgama v. State of Gujarat [(1973) 2 SCC

413], there is no grotesque misuse of power, wealth, status or age which needs to be guarded against. Both the prosecutrix and the appellant belonged

to a similar social class and lived in geographical and cultural vicinity to each other. Far from there being an imbalance of power; if not for the age of

the prosecutrix, the two could have been happily married and cohabiting today. Indeed, the present instance is an offence: mala prohibita, and not mala

in se. Accordingly, a more equitable sentence ought to be awarded.

Given these multiple unique circumstances, we are of the opinion that the sentence of five years' rigorous imprisonment awarded by the Courts

below, is disproportionate to the facts of the this case. The concerns of both the society and the victim can be respected, and the twin principles of

deterrence and correction would be served by reducing the appellant's sentence to the period of incarceration already undergone by him.

CONCLUSION

In light of the above discussion, we are of the view that the prosecution has established the appellant's guilt beyond reasonable doubt and that no

case of acquittal under Sections 363 and 366 of the IPC is made out. However, the quantum of sentence is reduced to the period of imprisonment

already undergone.

An analysis of entire evidence does not justify further incarceration of the accused, nor is going to achieve any significant purpose. Without

commenting on the merits of the case, the stage of the investigation and the period of incarceration already undergone would make out a case for bail.

Thus, in the facts and circumstances peculiar to this case, the petitioner makes out a case for release on bail.

Given the above reasoning, the Court is granting bail to the petitioner, subject to strict terms and conditions, which shall be over and above and

irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.

In Manish Lal Shrivastava v State of Himachal Pradesh, CrMPM No. 1734 of 2020, after analysing judicial precedents, this Court observed that

any Court granting bail with sureties should give a choice to the accused to either furnish surety bonds or give a fixed deposit, with a further option to

switch over to another.

The petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. Twenty-five thousand (INR

25,000/-), and shall furnish two sureties of a similar amount, to the satisfaction of the Judicial Magistrate having the jurisdiction over the Police Station

conducting the investigation, and in case of non-availability, any Ilaqa Magistrate. Before accepting the sureties, the concerned Magistrate must satisfy

that in case the accused fails to appear in Court, then such sureties are capable to produce the accused before the Court, keeping in mind the

Jurisprudence behind the sureties, which is to secure the presence of the accused.

In the alternative, the petitioner may furnish aforesaid personal bond and fixed deposit(s) for Rs. Twenty-five thousand only (INR 25,000/-), made

in favour of ""Chief Judicial Magistrate, District Sirmaur, H.P.,

a) Such Fixed deposits may be made from any of the banks where the stake of the State is more than 50%, or any of the stable private banks, e.g.,

HDFC Bank, ICICI Bank, Kotak Mahindra Bank, etc., with the clause of automatic renewal of principal, and liberty of the interest reverting to the

linked account.

b) Such a fixed deposit need not necessarily be made from the account of the petitioner and need not be a single fixed deposit.

c) If such a fixed deposit is made in physical form, i.e., on paper, then the original receipt shall be handed over to the concerned Court.

d) If made online, then its printout, attested by any Advocate, and if possible, countersigned by the accused, shall be filed, and the depositor shall get

the online liquidation disabled.

e) The petitioner or his Advocate shall inform at the earliest to the concerned branch of the bank, that it has been tendered as surety. Such information

be sent either by e-mail or by post/courier, about the fixed deposit, whether made on paper or in any other mode, along with its number as well as FIR

number.

f) After that, the petitioner shall hand over such proof along with endorsement to the concerned Court.

g) It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. It shall also be open for the petitioner to apply for

substitution of fixed deposit with surety bonds and vice-versa.

h) Subject to the proceedings under S. 446 CrPC, if any, the entire amount of fixed deposit along with interest credited, if any, shall be

endorsed/returned to the depositor(s). Such Court shall have a lien over the deposits up to the expiry of the period mentioned under S. 437-A CrPC,

1973, or until discharged by substitution as the case may be.

The furnishing of the personal bonds shall be deemed acceptance of the following and all other stipulations, terms, and conditions of this bail order:

a) The petitioner to execute a bond for attendance to the concerned Court(s). Once the trial begins, the petitioner shall not, in any manner, try to delay

the proceedings, and undertakes to appear before the concerned Court and to attend the trial on each date, unless exempted. In case of an appeal, on

this very bond, the petitioner also promises to appear before the higher Court in terms of Section 437-A CrPC.

b) The attesting officer shall, on the reverse page of personal bonds, mention the permanent address of the petitioner along with the phone number(s),

WhatsApp number (if any), e-mail (if any), and details of personal bank account(s) (if available), and in case of any change, the petitioner shall

immediately and not later than 30 days from such modification, intimate about the change of residential address and change of phone numbers,

WhatsApp number, e-mail accounts, to the Police Station of this FIR to the concerned Court.

c) The petitioner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police

officials, or any other person acquainted with the facts of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to

tamper with the evidence.

d) The petitioner shall join the investigation as and when called by the Investigating Officer or any Superior Officer; and shall cooperate with the

investigation at all further stages as may be required. In the event of failure to do so, it will be open for the prosecution to seek cancellation of the bail.

Whenever the investigation occurs within the police premises, the petitioner shall not be called before 8 AM and shall be let off before 5 PM, and shall

not be subjected to third-degree, indecent language, inhuman treatment, etc.

e) In addition to standard modes of processing service of summons, the concerned Court may serve or inform the accused about the issuance of

summons, bailable and non-bailable warrants the accused through E-Mail (if any), and any instant messaging service such as WhatsApp, etc. (if any).

[Hon’ble Supreme Court of India in Re Cognizance for Extension of Limitation, Suo Moto Writ Petition (C) No. 3/2020, I.A. No. 48461/2020- July

10, 2020]:

i. At the first instance, the Court shall issue the summons.

ii. In case the petitioner fails to appear before the Court on the specified date, in that eventuality, the concerned Court may issue bailable warrants.

iii. Finally, if the petitioner still fails to put in an appearance, in that eventuality, the concerned Court may issue Non-Bailable Warrants to procure the

petitioner's presence and may send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper to

achieve the purpose.

During the trial's pendency, if the petitioner repeats or commits any offence where the sentence prescribed is more than seven years or violates

any condition as stipulated in this order, the State may move an appropriate application before this Court, seeking cancellation of this bail. Otherwise,

the bail bonds shall continue to remain in force throughout the trial and after that in terms of Section 437-A of the CrPC.

Any Advocate for the petitioner and the Officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of

this bail order, in vernacular and if not feasible, in Hindi.

In case the petitioner finds the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for

modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even to the Court taking

cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition.

This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation per law.

Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.

In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.

The SHO of the concerned Police Station or the Investigating Officer shall arrange to send a copy of this order, preferably a soft copy, to the

victim, at the earliest. In case the victim notices any objectionable behavior or violation of any terms or conditions of this order, the victim may inform

the SHO of the concerned Police Station or the Trial Court or even to this Court.

I express my gratitude to my interns Adv Apoorva Maheshwari and Adv Sakshi Attri for their excellent perspective.

There would be no need for a certified copy of this order for furnishing bonds, and any Advocate for the Petitioner can download this order

alongwith case status from the official web page of this Court and attest it to be a true copy. In case the attesting officer or the Court wants to verify

the authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.

The petition stands allowed in the terms mentioned above.