Mohd. Azam vs Unknown
2021 Latest Caselaw 3984 HP

                                            1

     IN    THE     HIGH     COURT OF        HIMACHAL          PRADESH, SHIMLA
                      ON THE 18th DAY OF AUGUST, 2021
                                       BEFORE




                                                                  .
                  HON'BLE MR. JUSTICE SANDEEP SHARMA





             CRIMINAL MISC. PETITION (MAIN) No. 1548 of 2021
    Between:





    MOHD. AZAM S/O SH. MOHD. ISLAM,
    RESIDENT OF VILLAGE MOHKAMPUR
    NAWADA, POST OFFICE SHIVPOR,
    PAONTA SAHIB, DISTRICT SIRMAUR,
    H.P.





                                                                           ....PETITIONER

    (BY SH. KUSH SHARMA, ADVOCATE)
    AND

    THE STATE OF HIMACHAL PRADESH,

    THROUGH     SECREATRY    HOME,
    GOVERNMENT      OF    HIMACHAL
    PRADESH

                                                                    ....RESPONDENT



    BY   SH.   DESH    RAJ  THAKUR,
    ADDITIONAL ADVOCATE GENERAL
    WITH   SH.  R.P.SINGH  AND  SH.




    NARENDER     THAKUR,     DEPUTY
    ADVOCATE GENERAL FOR R-1)





    Whether approved for reporting?. Yes.


    This petition coming on for orders this day, the Court passed the following:





                               ORDER

Sequel to order dated 9.8.2021, whereby bail petitioner was

ordered to be enlarged on interim bail in the event of his arrest in case FIR

No.14 of 2021, dated 27.07.2021, under sections 376, 354(a),(c),(d), 292, 294

of IPC and Section 4 of the Protection of Children from Sexual Offences Act,

registered at police Station, Mahila Police Thana, Nahan, District Sirmaur,

H.P., Mr. Desh Raj Thakur, learned Additional Advocate General has

placed on record status report prepared on the basis of the investigation

.

carried out by the Investigating Agency. SI Vidya Sagar has also come

present alongwith the record. Record perused and returned.

2. Status report/record reveals that on 13.8.2021, victim/

prosecutrix (name withheld to protect her identity), lodged a

complainant at Mahila Police Station, Nahan, District Sirmaur, H.P.,

disclosing therein that she is student of 10th class and her date of birth is 1st

June, 2003. She alleged that one year back bail petitioner finding her alone

at home sexually assaulted her against her wishes. She stated before the

police that though she had raised hue and cry, but since none was around,

nobody came forward for her help. She alleged that after the alleged

incident bail petitioner threatened her that in case she disclosed this

incident to anybody, he would make video of alleged incident made by him

viral. She alleged that after two months of first incident bail petitioner

again finding her alone sexually assaulted her and despite her repeated

requests, failed to delete the video from his phone. She alleged that on 25th

July, 2021, bail petitioner misbehaved indecently with her, however he

after having seen her Uncle Chanan Singh, fled away from the spot. She

alleged that bail petitioner keeps stalking her with the intention to tarnish

her image and he has also written bad words about her on the walls of the

houses in the village. In the aforesaid background, FIR, as detailed

hereinabove, came to be lodged against the bail petitioner, who pursuant to

order dated 8.9.2021 has already joined the investigation. Since

investigation in the case is complete and nothing remains to be recovered

.

from him, learned counsel for the petitioner has prayed for confirmation of

interim bail granted by this Court vide order dated 9.8.2021.

3. Mr. Desh Raj Thakur, learned Additional Advocate General

while fairly admitting factum with regard to joining of investigation by the

petitioner, submits 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 him, prayer having been made on his behalf for grant of

bail deserves outright rejection. Learned Additional Advocate General

further argued that since at the time of alleged offence age of the

victim/prosecutrix was less than 18 years, consent, if any, of her, is

immaterial and as such, present petition may be dismissed.

4. Having heard learned counsel representing the parties and

perused the material available on record, this court finds that incident

allegedly happened/occurred one year prior to lodging of the FIR, but no

plausible explanation ever came to be rendered on record qua the delay in

filing the FIR. Though, in the initial complaint victim/prosecutrix claimed

that after three months of first incident, she was again subjected to sexual

intercourse by bail petitioner, but there is no material available on record

suggestive of the fact that attempt, if any, ever came to be made at the

behest of victim/prosecutrix, who at that relevant time was 17 years old to

lodge the complaint either with the Gram Panchayat or with the police,

rather she kept on waiting till filing of the FIR, which is subject matter of

the present case. If the statement of the victim/prosecutrix made under

.

Section 164 Cr.P.C., is red in its entirety, it can safely be inferred that

victim/prosecutrix had prior acquaintance with the bail petitioner and she

wanted to solemnize marriage with him. Since, age of the victim/prosecutrix

was less than 18 years, proposal of her marriage with bail petitioner could

not be materialized. After one year of alleged incident, FIR came to be

instituted and explanation rendered on record qua the delay is not worth

credence. r

5. On 13th August, 2021, learned counsel representing the

petitioner informed this Court that victim/prosecutrix and petitioner

herein has already decided to marry each other and today during the

proceedings of the case, victim/prosecutrix alongwith her father and

Pradhan of Gram Panchayat, Nawada, have come present. Father of the

victim/prosecutrix has made available one Nikhanama, perusal whereof

reveals that on 17th August, 2021 victim/prosecutrix, who has now turned

18 years has solemnized marriage with the petitioner. Investigating Officer

present in Court fairly admits that victim/prosecutrix has turned 18 years

and as such, is entitled to solemnize marriage. Since, alleged incident is of

one year prior to filing of the FIR, medical evidence adduced on record is of

no relevance, perusal whereof otherwise discloses no case against the

petitioner. Similarly, father of the victim/prosecutrix also states before

this Court that marriage interse petitioner and her daughter i.e.

victim/prosecutrix stands solemnized. Smt. Mehraj Khatun, Pradhan of

Gram Panchayat, who is also present in Court states before this Court that

.

marriage interse petitioner and victim/prosecutrix was solemnized on

17.8.2021. Since, petitioner has already solemnized marriage with the

victim/prosecutrix and nothing remains to be recovered from the bail

petitioner, this Court sees no reason for custodial interrogation of the bail

petitioner and as such, he deserves to be enlarged on bail.

6. By now it is well settled that freedom of an individual is of

utmost importance and cannot be curtailed for indefinite period. Till the

time guilt of accused is not proved, in accordance with law, he is deemed to

be innocent. In the case at hand, the guilt, if any, of the bail petitioner is

yet to be proved, in accordance with law.

7. 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 freedom of an individual is of utmost

importance and same cannot be curtailed merely on the basis of suspicion.

Hon'ble Apex Court has further held that till the time guilt of accused is not

proved, in accordance with law, he is deemed to be innocent. The relevant

paras No.2 to 5 of the 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.

3. 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.

4. 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.

5. 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

.

8. 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.

9. 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."

10. 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.

11. Consequently, in view of the above, order dated 9.8.2021

passed by this Court, is made absolute, 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 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.

12. 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.

13. 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.

    18th August, 2021                                      (Sandeep Sharma),





          (shankar)                                               Judge