Abhinay Verma vs Unknown
2021 Latest Caselaw 4962 HP

    IN    THE      HIGH     COURT        OF    HIMACHAL           PRADESH,            SHIMLA




                                                                       .
                        ON THE 8th DAY OF OCTOBER, 2021





                                   BEFORE
                     HON'BLE MR. JUSTICE SANDEEP SHARMA





                CRIMINAL MISC. PETITION (MAIN) No.1867 of 2021
          Between:

          ABHINAY VERMA,
          S/O SH. BHARTI @ BHAWANI,





          R/O VILLAGE CHAIL CHOWK,
          TEHSIL CHACHIOT,
          DISTRICT MANDI, H.P
          22 YEARS.
                                                                           ....PETITIONER

          (BY MR. VINOD CHAUHAN,

          ADVOCATE)

          AND



          STATE OF HIMACHAL PRADESH.
                                                                          ....RESPONDENT
          (MR. SUDHIR BHATNAGAR,




          AND MR. DESH RAJ THAKUR,
          ADDITIONAL ADVOCATES GENERAL





          WITH MR. NARENDER THAKUR,
          DEPUTY ADVOCATE GENERAL)

    Whether approved for reporting?.





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

                                          ORDER

Bail petitioner namely Abhinay Verma, who is behind bars

since 18.7.2021, has approached this court in the instant proceedings filed

under Section 439 Cr.PC, for grant of regular bail, in case FIR No.

.

238/2021 dated 18.7.2021, registered at PS Balh, District Mandi, Himachal

Pradesh, under Sections 10 and 14 of the POCSO Act read with Section 67

of the IT Act.

2. Pursuant to order dated 24.9.2021, respondent-state has filed

the status report. SI Rajesh Kumar, I/o P.S. Balh, District Mandi, is also

present with the records. Records perused and returned. Close scrutiny of

record/status report reveals that on 18.7.2021, mother of the victim-

prosecutrix (name withheld), lodged a complaint at PS Balh, District Mandi,

H.P., alleging therein that few months back, person namely Abhinay @

Anku i.e. present bail petitioner, had come in contact of her minor

daughter. She alleged that aforesaid person wheedled her minor daughter

and made her obscene video and thereafter, uploaded the same on social

media. She alleged that for the last 8 to 10 days, obscene vide of the

victim-prosecutrix allegedly made by the accused, is being shown and as

such, appropriate action in accordance with law be taken against the

accused. In the aforesaid background, as FIR detailed herein above, came

to be lodged against the present bail petitioner on 18.7.2021 and since

then, he is behind the bars. Since challan stands filed in the competent

court of law and nothing remains to be recovered from the bail petitioner,

he has approached this court in the instant proceedings for grant of regular

.

bail.

3. Mr. Sudhir Bhatnagar, learned Additional Advocate General

while fairly admitting factum with regard to filing of challan in the

competent court of law, 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, he does not deserve any

leniency. Mr. Bhatnagar, further submits though evidence collected on

record by the investigating agency reveals that bail petitioner took undue

advantage of innocence of the victim-prosecutrix, who is minor and

thereafter, without her consent uploaded her obscene video made by him in

the social media, prayer having been made on his behalf for grant of bail,

deserves outright rejection.

4. Having heard learned counsel for the parties and perused

material available on this record, this Court finds that victim-prosecutrix,

who is minor, was in constant touch of the bail petitioner since March,

2020, through facebook/whatsap. Allegedly, in the month of March, 2021,

the bail petitioner called the victim-prosecutrix to some place and

thereafter, allegedly, made her obscene video without her consent and

uploaded the same on the social media. Factum with regard to the

uploading of obscene video of victim-prosecutrix came to her knowledge

.

through her mother, who telephonically disclosed that someone has

uploaded her obscene video on the social media. Investigation reveals that

bail petitioner and victim-prosecutrix had prior acquaintance and bail

petitioner while deleting the video inadvertently uploaded the same as his

status on the facebook, whereafter allegedly somebody downloaded the

same and made it viral on social media. Police has already taken the

mobile phone of the petitioner into custody and video allegedly made by the

petitioner has been already deleted from the phone as well as social media.

Since challan stands filed and nothing remains to be recovered from the

bail petitioner coupled with the fact that bail petitioner is a young boy of 22

years, this Court sees no reason to let the bail petitioner incarcerate in jail

for an indefinite period, during trial. The hon'ble Apex Court as well as

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

innocent till the time, guilt of his/her is not proved in accordance with law.

In the case at hand also, guilt, if any, of the accused is yet to be proved in

accordance with law, by leading cogent and convincing material on

record.

5. 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.

6. 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."

.

7. 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."

8. 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.

9. 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).

10. 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.

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.

11. In view of the aforesaid discussion as well as law laid down by

the Hon'ble Apex Court, petitioner has carved out a case for grant of bail,

accordingly, the petition is allowed and the petitioner is ordered to be

enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in

the sum of Rs. 50,000/- with two local sureties in the like amount to the

satisfaction of concerned Chief Judicial Magistrate/trial Court, 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/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.

12. 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.

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 petition stands accordingly disposed

of.

Copy dasti.

    8th October, 2021                                      (Sandeep Sharma),
          (manjit)                                              Judge