Vivek Chauhan vs State Of Himachal Pradesh

Sushil Kukreja, J

The instant bail application has been moved by the petitioner under Section 439 of the Code of Criminal Procedure for releasing him on bail, in case FIR No. 15 of 2023, dated 16.02.2023, under Section 376 of Indian Penal Code (for short “IPC”) and Section 6 of Prevention of Children from Sexual Offences Act (for short “POCSO Act”), registered at Police Station Renukaji, District Sirmour, H.P.

The facts, which emerge from the records, can be summarized as under:

On 16.02.2023, police of Police Station Renukaji received information from Dr. Y.S. Parmar Government Medical College Nahan, that the prosecutrix (name withheld), a minor, is having pregnancy and she has come to hospital for treatment. Upon receipt of such information, a police team visited the hospital and found that the prosecutrix was admitted in the hospital. Police recorded the statement of the prosecutrix under Section 154 Cr.P.C., wherein she stated that 5-6 months back, she met with one Vivek Chauhan (petitioner herein) in a marriage ceremony and they became friends. On 5. 12.2022, when the prosecutrix was alone in her room, the petitioner came to meet her and he committed sexual intercourse with her against her will. The prosecutrix further stated that due to fear of shame, she did not disclose the incident to anyone. Upon the statement of the prosecutrix, police registered a case under the apt Sections of IPC and the POCSO Act and investigation commenced. It was unearthed, during the course of investigation, that the date of birth of the prosecutrix was 19.12.2004, so she was found to be minor at the time of commission of the crime. It was also unearthed that the petitioner committed sexual intercourse with the prosecutrix on 05.12.2022 and prior to that, he had committed sexual intercourse with the prosecutrix four times. On 24.02.2023 the petitioner was arrested and medically examined.

The learned counsel appearing on behalf of the petitioner has submitted that the petitioner is innocent and has been falsely implicated in the present case. He has further submitted that taking into consideration the age of the petitioner, i.e. 20 years, if he is not enlarged on bail, his career will be ruined. He also submitted that the petitioner is behind the bars since his arrest and no fruitful purpose will be served by keeping him behind the bars for an unlimited period, as trial may take sufficiently long time to conclude. He also submitted that the petitioner and the prosecutrix are willing to marry each other after the prosecutrix attains the age of 21 years.

Conversely, the learned Deputy Advocate General has submitted that the petitioner does not deserve to be released on bail as he has been found involved in a serious offence, so at this stage, in case he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice.

I have given my considered thought to the rival contentions raised and also gone through the police file as well as the status report filed by the prosecution. The perusal of the record reveals that the investigation in the case is complete and the petitioner who is only 20 years of age is presently lodged in the judicial custody.

In Sanjay Chandra Vs. Central Bureau of Investigation, (2012) 1 Supreme Court Cases 49, it has been held that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail and that every man is deemed to be innocent until duly tried and duly found guilty. Relevant portion of the aforesaid judgment reads as under:-

“21. In bail applications, generally, it has been laid down from the earliest times that 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.

From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted 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 this country, 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 a 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 un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.”

In Manoranjana Sinh alias Gupta Vs. CBI, (2017) 5 SCC 218, the Hon’ble Apex Court reiterated the decision rendered in Sanjay Chandra’s case (supra) by holding as under:-

“16. This Court in Sanjay Chandra Vs. Central Bureau of Investigation (2012) 1 SCC 40, 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 nor 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 a 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 and 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 that 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.”

Similar reiteration of law can be found in Dataram Singh Vs. State of Uttar Pradesh & Another,(2018) 3 SCC 22, wherein it has been held that a person is believed to be innocent until found guilty and the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home is an exception. Relevant portion of the aforesaid judgment reads as under:-

“1. 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.

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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 the case in hand, the complicity, if any, of the petitioner is yet to be established on record, as such, there is no reason to let the petitioner, who is only 20 years of age, incarcerate in jail with other hardened criminals for an indefinite period during trial, especially when he is behind the bars since 24. 02.2023 and the trial has not been commenced as yet. Moreover, the prosecutrix has filed an affidavit before this Court, wherein, she stated that the petitioner has not committed any sexual intercourse with her and his uncle and mother had undertaken to the effect that the petitioner is ready and willing to marry the prosecutrix after she attains the age of 21 years. The prosecution has failed to produce any material on record to suggest that the petitioner will tamper with the prosecution evidence, if enlarged on bail. There is also nothing on record to suggest that he will abscond and flee from justice, if enlarged on bail, as he is a permanent resident of District Sirmaur.

Hence, after going through the material available on record and considering the overall facts and circumstances of the case and also keeping in view the age of the petitioner being 20 years and in order to maintain harmonious relations/atmosphere between the parties, as the families of the petitioner as well as the prosecutrix have agreed to solemnize marriage between the petitioner and the prosecutrix, this Court finds that the present is a fit case where judicial discretion to admit the petitioner on bail is required to be exercised in his favour. Accordingly, the bail application is allowed and it is ordered that the petitioner, who has been arrested by the police, in case FIR No. 15/2023, dated 16. 02.2023, registered at Police Station Renukaji, District Sirmaur, H.P., under Section 376 of IPC and Section 6 of POCSO Act, shall be forthwith released on bail, subject to his furnishing personal bond to the tune of Rs. 50,000/- (Rupees fifty thousand), with one surety in the like amount to the satisfaction of learned Trial Court. This bail order is subject, however, to the following conditions:-

(i) that the petitioner will appear before the Court and the Investigating Officer whenever required ;

(ii) that he will not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing any facts to the Court or the police;

(iii) that he will not tamper with the prosecution evidence nor he will try to win over the Prosecution witnesses or terrorise them in any manner;

(iv) that he will not deliberately and intentionally act in a manner which may tend to delay the investigation or the trial of the case.

(v) that he will not leave India without prior permission of the Court.

Needless to say that the Investigating agency shall be at liberty to move this Court for cancellation of the bail, if any of the aforesaid conditions is violated by the petitioner.

Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the trial Court will not be influenced by any observations made therein.

It is made clear that this order is being passed in the peculiar facts and circumstances of the present case and shall not be treated as a precedent in other similar nature of cases.