Parmesh Kumar vs State Of Himachal Pradesh
2021 Latest Caselaw 459 HP

               IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
                              Cr.MP(M) Nos. 2262 of 2020 and 2 of 2021
                                             Decided on: 8.1.2021




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          1. Cr.MP(M) No.2262 of 2020

    Parmesh Kumar                                                                ...........Petitioner
                                                    Versus





    State of Himachal Pradesh                                                ..........Respondent
       2. Cr.MP(M) No. 2 of 2021

    Hem Raj                                                                      ...........Petitioner
                                                    Versus





    State of Himachal Pradesh                           ..........Respondent
    Coram:
    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting? 1
    For the Petitioner(s)
                           r   :    Mr. Kulbhushan Khajuria and Mr.
                                    Pushpender Verma, Advocates.

    For the Respondent(s)      :    Mr. Arvind Sharma, Additional Advocate
                                    General with Ms. Svaneel Jaswal,
                                    Deputy Advocate General.
    __________________________________________________________________
    Sandeep Sharma, Judge (oral):

Through Video Conferencing.

Above named bail petitioners have approached this Court

in the instant proceedings, filed under Section 439 Cr.PC, praying therein

to grant regular bail in case FIR No. 155/20, dated 7.11.2020, under

Sections, 342, 376 and 506 of IPC and Section 4 of the POCSO Act,

registered at P.S. Kihar, District Chamba, H.P.

2. Mr. Arvind Sharma, learned Additional Advocate General

besides filing status report has also made available record in terms of

Whether the reporters of the local papers may be allowed to see the judgment?

order dated 4.1.2021, passed by this court, perusal whereof reveals that

on 7.11.2020, victim-prosecutrix (name withheld) lodged a complaint at

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PS Kihar, District Chamba, stating therein that she is 17 years old and at

present, studies in class-12. She alleged that in the month of September,

bail petitioner namely Parmesh Kumar sexually assaulted her against her

wishes. She alleged that one day, while she was working in her fields, bail

petitioner-Parmesh Kumar having found her alone sexually assaulted her

against her wishes and threatened that in case she discloses the aforesaid

incident to anybody, he would take her away.

r Victim-prosecutrix

disclosed in her statement recorded under Section 154 Cr.PC that after

aforesaid alleged incident, Parmesh also gave her one mobile sim and

started giving frequent telephonic calls. On 4.11.2020, another bail

petitioner Hem Raj, who happened to be cousin of Parmesh had come to

the house of the Parmesh and as such, he called her to his house. She

alleged that on the repeated requests of Parmesh, she went to his house,

where bail petitioner Parmesh and his wife Neema left her alone in room

with another bail petitioner namely Hem Raj, who thereafter sexually

assaulted her against her wishes. She alleged that after a half an hour,

her maternal uncle entered the room by breaking door and saved her

from the clutches of the bail petitioner-Hem Raj . In the aforesaid

background, FIR detailed herein above, came to be lodged against the

present bail petitioners and since then, they both are behind bars.

Investigation in the case is complete and challan stands filed in the

competent court of law and as such, petitioners have approached this

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Court in the instant proceedings for grant of regular bail.

3. Mr. Arvind Sharma, learned Additional Advocate General

while fairly admitting factum with regard to completion of investigation

contends that though nothing remains to be recovered from the bail

petitioners, but keeping in view the gravity of offence alleged to have

been committed by them, they do not deserve any leniency and as such,

prayer made on their behalf for grant of bail may be reject outrightly.

Learned Additional Advocate General while making this court peruse

status report/record submits that though there is overwhelming evidence

suggestive of the fact that both the petitioners taking undue advantage

of the innocence and minority of the victim-prosecutrix sexually assaulted

her against her wishes on 2-3 occasions, but even otherwise consent, if

any, of the victim-prosecutrix is immaterial on account of her minor age

and as such, prayer made on behalf of the petitioners may be rejected,

who in the event of enlargement of bail, may not only flee from justice,

but may also cause harm to the victim-prosecutrix.

4. Having heard learned counsel representing the parties and

perused statements made by the victim-prosecutrix under Sections 154

and 164 CrPC, this Court finds that victim-prosecutrix, aged 17 years had

prior acquaintance with the bail petitioner Parmesh. Otherwise also, if

both the statements recorded under Sections 154 and 164 Cr.PC are read

in conjunction, there are material inconsistencies and contradictions. It is

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not understood that, if once in the month of September, 2020, bail

petitioner Parmesh had ravished victim-prosecutrix against her wishes,

where was the occasion for her to visit his house after a few days that too

on his askance. Similarly, it is not understood when victim-prosecutrix went

to the house of the bail petitioner Parmesh, why she did not disclose

factum with regard to her having been ravished by Parmesh to his wife

Neema, rather as per own statement of victim-prosecutrix recorded under

Section 164 Cr.PC, she on the askance of bail petitioner Parmesh and his

wife joined the company of another bail petitioner Hem Raj. Interestingly,

there is nothing on record that during the aforesaid stay of the victim-

prosecutrix in the house of the bail petitioner Parmesh, effort, if any, ever

came to be made on behalf of the parents or relatives of the victim-

prosecutrix to lodge missing report or they made effort, if any, to locate

her. Aforesaid omission on the part of the parents of the victim-prosecutrix

gains significance in view of the fact that subsequently, maternal uncle of

victim-prosecutrix allegedly rescued victim-prosecutrix from the clutches

of the bail petitioner Hem Raj. There is nothing on record that intimation

with regard to presence of victim-prosecutrix in the house of the bail

petitioner Parmesh was given to maternal uncle of the prosecutrix by

somebody from the family of the bail petitioner Parmesh or parents of the

victim-prosecutrix.

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5. Leaving everything aside, this Court having noticed

conduct of victim-prosecutrix, which duly reflects from her statements

given to the police as well as Judicial magistrate, finds it difficult to

conclude that victim-prosecutrix at the time of alleged incident was

incapable of understanding consequences of her being in the company

of the bail petitioner, rather there is overwhelming evidence on record

suggestive of the fact that victim-prosecutrix on account of her prior

acquaintance with the bail petitioner had been meeting him as well as

Hem Raj frequently prior to the alleged incident. Medical Officer

attending upon the victim-prosecutrix has not specifically concluded in his

report that possibility of sexual assault cannot be ruled out, rather he /she,

simply after having recorded the version of victim-prosecutrix, has just

given details of medical examination only. No external/internal injury ever

came to be noticed by the medical officer attending upon the victim-

prosecutrix. Similarly, FSL report placed on record also does not support

case of the prosecution.

6. Though aforesaid aspects of the matter are to be considered and

decided by the courts below in totality of evidence collected on record

by the Investigating Agency, but keeping in view the aforesaid glaring

aspect of the matter, this Court sees no reason to let the bail petitioner

incarcerate in jail for an indefinite period during trial, especially when

challan stands filed in the competent court of law and nothing remains to

.

be recovered from the bail petitioner. Apprehension expressed by the

learned Additional Advocate General that in the event of petitioners'

being enlarged on bail, they may flee from justice, can be best met by

putting the bail petitioners to stringent conditions as has been fairly stated

by the learned counsel for the petitioners. Hon'ble Apex Court as well as

this Court in catena of judgments have held that one is deemed to be

innocent till the time his guilt is not proved in accordance with law and as

such, prayer made on behalf of the petitioners deserves consideration.

7. 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.

8. 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

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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."

9. 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

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detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution

was highlighted."

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
                      r  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. 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).

12. Recently, the Hon'ble Apex Court in Criminal Appeal No.

227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., decided on

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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.

r 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.

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

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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.

13. Consequently, in view of the aforesaid discussion as well as

law laid down by the Hon'ble Apex Court, the petitioners have carved

out a case for grant of bail, accordingly, the petitions are allowed and

the petitioners are ordered to be enlarged on bail in aforesaid FIR, subject

to their furnishing personal bonds in the sum of Rs. 1,00,000/- each with

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one local surety each in the like amount to the satisfaction of concerned

Chief Judicial Magistrate/trial Court, with following conditions:

a. They shall make themselves 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. They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c. They 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. They shall not leave the territory of India without the prior permission of the Court.

e. They shall handover the passports to the Investigating Agency within a period of ten days from their release on bail.

14. It is clarified that if the petitioners misuse their liberty or

violate any of the conditions imposed upon them, the investigating

agency shall be free to move this Court for cancellation of the bail.

15. Any observations made hereinabove shall not be construed

to be a reflection on the merits of the cases and shall remain confined to

the disposal of these applications alone. The bail petitions stand disposed

of accordingly. Copy dasti.

    8th January, 2021                                            (Sandeep Sharma),





           manjit                                                     Judge