Himachal Pradesh High Court
Vivek Chaudhary vs Unknown on 15 March, 2022
Bench: Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 15 TH DAY OF MARCH, 2022
BEFORE
.
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL MISC.PETITION (MAIN) No. 273 of 2022
Between:
VIVEK CHAUDHARY, SON OF SH. ISHWAR
DASS, R/O VILLAGE CHHOTU HALER, P.O.,
TEHSIL AND DISTRICT KANGRA, H.P.
....PETITIONER
(BY MR. VIJENDER KATOCH, ADVOCATE.)
AND
STATE OF HIMACHAL PRADESH
....RESPONDENT
(BY MR. SUDHIR BHATNAGAR, MR. DESH
RAJ THAKUR AND MR. ARVIND SHARMA,
ADDITIONAL ADVOCATE GENERALS WITH
MR. KAMAL KISHORE SHARMA, MR.
NARENDER THAKUR AND MR. GAURAV
SHARMA, DEPUTY ADVOCATE GENERALS).
CRIMINAL MISC.PETITION (MAIN) No. 388 of 2022
Between:
SAVAN SON OF SH. DESH RAJ, R/O
VILLAGE UJJAIN, P.O., TEHSIL AND
DISTRICT KANGRA, H.P.
....PETITIONER
(BY MR. ANUP RATTAN, ADVOCATE.)
AND
STATE OF HIMACHAL PRADESH
....RESPONDENT
(BY MR. SUDHIR BHATNAGAR, MR. DESH
RAJ THAKUR AND MR. ARVIND SHARMA,
ADDITIONAL ADVOCATE GENERALS WITH
MR. KAMAL KISHORE SHARMA, MR.
NARENDER THAKUR AND MR. GAURAV
SHARMA, DEPUTY ADVOCATE GENERALS).
::: Downloaded on - 17/03/2022 20:11:10 :::CIS
2
CRIMINAL MISC.PETITION (MAIN) No. 389 of 2022
Between:
RAHUL SON OF SH. OM PRAKASH, R/O
.
VILLAGE P.O. DHAMER, TEHSIL AND
DISTRICT KANGRA, H.P.
....PETITIONER
(BY MR. ANUP RATTAN, ADVOCATE.)
AND
STATE OF HIMACHAL PRADESH
....RESPONDENT
(BY MR. SUDHIR BHATNAGAR, MR. DESH
RAJ THAKUR AND MR. ARVIND SHARMA,
ADDITIONAL ADVOCATE GENERALS WITH
MR. KAMAL KISHORE SHARMA, MR.
NARENDER THAKUR AND MR. GAURAV
SHARMA, DEPUTY ADVOCATE GENERALS).
Whether approved for reporting? yes.
This petition coming on for orders this day, the Court passed the following:
ORDER
Bail petitioners, namely Vivek Chaudhary, Savan and
Rahul, who are behind the bars have approached this court in the
instant proceedings filed under S. 439 Cr.P.C, for grant of regular bail
in case FIR No. 75 of 2021, dated 18.9.2021, registered at Police
Station Lambagaon, District Kanga, Himachal Pradesh under Ss.
376(1), 376(D), 354, 120-B, 201 of IPC, Ss. 6, 17 and 21 of Protection
of Children from Sexual Offences Act, Section 181 of Motor Vehicles
Act and Sections 3(i)(w)(i)(ii) 3(II)(va) of SC and ST Act. Respondent
State has filed status report and SI Kesar Singh has come present
with record. Record perused and returned.
2. Close scrutiny of the record /status report made available
to this court reveals that on 18.9.2021, victim-prosecutrix, aged 17
.
years (name withheld) lodged a complaint at Police Station
Lambagaon, District Kangra, Himachal Pradesh, alleging therein that
on 3.9.2021, she had gone to Balakrupi to attend birthday of
granddaughter of her aunt(Tai). She further alleged that on 7th/8th
9.2021, when her aunt had gone to earn daily wages and uncle was
sleeping after having consumed liquor, her sister-in-law sent two
persons to her and they took her to Bohar (room in upper storey of
the house) and sexually assaulted her against her wishes. She
alleged that when one person was committing sexual assault upon
her, another was making her video. She disclosed to the police that
on 10.9.2021, she went to Palampur to meet her friend but on
11.9.2021, while she reached Palampur bus stand, she received
telephonic call from some person that you reach Kangra, otherwise
video made at the residence of her sister-in-law would be made viral.
She alleged that after having received aforesaid telephone call, she
went to Kangra, from where two persons took her to Jwala Ji and
sexually assaulted her against her wishes in a hotel and thereafter
dropped her at Nadaun. In the aforesaid background, FIR, as detailed
hereinabove, came to be lodged against bail petitioners namely, Kala
alias Ajay Kumar and Bihari Lal. Subsequently, victim-prosecutrix in
her statement recorded under S. 164 Cr.P.C alleged that on
6.9.2021, two boys namely, Vivek Chaudhary and Savan came to
her aunt's house and called her outside the window. She alleged that
person namely Savan sexually assaulted her in a van and other
.
person, Vivek Chaudhary was standing outside. She alleged that
though Vivek Chaudhary did not commit any wrong with her, but
hurled abuses and misbehaved with her. In the aforesaid statement,
she alleged that on 7.9.2021, at 3-4 PM, Kala alias Ajay Kumar
alongwith other person came and sexually assaulted her in
the Bohar (room in the upper storey of house). She further deposed
before the Magistrate that she went to Kangra from where, Rahul
took her to Jwalaji in Free India Bus and sexually assaulted her in a
hotel. In the aforesaid background, bail petitioners Vivek Chaudhary,
Savan and Rahul also came to be named in the FIR. Since
investigation in the case is complete and nothing remains to be
recovered from the bail petitioners, they have approached this court
in the instant proceedings, praying therein for grant of regular bail.
3. Mr. Sudhir Bhatnagar, learned Additional Advocate
General, while fairly admitting factum with regard to filing of
the Challan in the competent court of law, 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 leniency. While making this
court peruse evidence collected on record by the Investigating
Agency Mr. Bhatnagar, learned Additional Advocate General contends
that though there is overwhelming evidence on record that all the
bail petitioners, taking undue advantage of the innocence and
minority of the victim-prosecutrix, sexually assaulted her against her
.
wishes, but even otherwise consent, if any, of the victim-prosecutrix
being minor is immaterial and, as such, prayer made on behalf of the
bail petitioners for grant of bail deserves outright rejection.
4. Having heard learned counsel for the parties and perused
material available on record this court finds that initial statement of
the victim-prosecutrix recorded under S.154 Cr.P.C, on the basis of
which, FIR came to be instituted, is totally contrary to her subsequent
statement recorded before learned Magistrate under S. 164 Cr.P.C. In
her statement recorded under S.154 Cr.P.C, she stated that on
7/8.9.2021, her sister-in-law called two persons in her house and
they sexually assaulted her against her wishes in the Bohri but, in
her statement recorded under S. 164 Cr.P.C, she gave altogether
different version. She stated that on 6.9.2021, two persons, namely
Vivek Chaudhary and Savan came to the house of her aunt and called
her outside the window and thereafter person namely Savan sexually
assaulted her in a van, whereas, another person Vivek Chaudhary
kept on standing outside. There is no mention, if any, with regard to
alleged incident of 6.9.2021 in FIR, wherein allegedly victim-
prosecutrix was sexually assaulted by the bail petitioner namely
Savan, in the presence of bail petitioner Vivek Chaudhary. Factum
with regard to alleged incident of 6.9.2021, only came to be recorded
in her statement recorded under S. 164 Cr.P.C before Magistrate. If
the statement of the victim-prosecutrix recorded under S.164 CrPC is
perused, it nowhere suggests that the bail petitioners namely Savan
.
and Vivek Chaudhary compelled the victim-prosecutrix to join their
company, rather, she of her own volition came to the van allegedly
brought by bail petitioner Savan. In case victim-prosecutrix was not
known to Savan and Vivek Chaudhary, there was no occasion, if any,
for her to join their company, but in the case at hand, she of her own
volition came outside her house and joined the company of bail
petitioner, Savan in the van, brought by him.
5. Victim-prosecutrix in her statement recorded under S.
154 CrPC, alleged that two persons, who had sexually assaulted her
on 7/8.9.2021, in Bohri, had recorded her video but, such fact, if any,
never came to be disclosed by her to the Magistrate while making
her statement under S. 164 CrPC. Though, in the statement recorded
under S.164 CrPC, victim-prosecutrix deposed that the person
namely Kala alias Ajay Kumar alongwith other persons had come to
her aunt's house and raped her in Bohri , but she nowhere stated
that one of the person, out of two, recorded a video of her. Similarly,
version put forth by the victim-prosecutrix with regard to sexual
assault committed upon her by the bail petitioner Rahul in her
statement recorded under S.154 CrPC, is totally contrary to her
subsequent statement made under S.164 CrPC. In her statement
recorded under S. 154 CrPC, victim-prosecutrix stated that on
11.9.2021, while she was going to Palampur bus stand for boarding
bus to her native place, she received a telephonic call asking her to
come to Kangra, lest her video recorded at her sister-in-law's house,
.
shall be made viral. But such fact, if any, never came to be deposed
before Magistrate, at the time of recording of her statement under S.
164 CrPC. Victim-prosecutrix in her statement recorded under S.164
CrPC, simply stated that on 11.9.2021, she went to Kangra, from
where bail petitioner Rahul took her to Jwala Ji in Free India Bus and
thereafter committed sexual assault upon her in a Hotel.
6. If the statements of the victim-prosecutrix recorded
under S. 154 CrPC and 164 CrPC respectively, are read juxtaposing
each other, learned counsel for the petitioners is right in contending
that version put forth by the victim-prosecutrix is totally
contradictory and cannot be relied upon on its face value.
7. Perusal of record made available to this court, further
reveals that apart from two statements, as have been discussed
herein above, victim-prosecutrix narrated altogether a different story
to the child counselor, whose report reveals that victim-prosecutrix
disclosed to her that person namely Savan after having clicked her
photographs made her sit in Free India Bus bound for Jwala Ji and
sent the same to Rahul, who subsequently reached Jwalaji and
sexually assaulted her in a hotel. Similarly, victim-prosecutrix
disclosed to Councilor that person namely Kala alias Ajay Kumar,
gave her Rs.1,000/-, out of which she paid Rs. 700/- to her aunt and
kept Rs. 300/- for herself.
8. Interestingly, in the case at hand, victim-prosecutrix
specifically alleged that her sister-in-law sent two persons to her but
.
for some unknown reason, she has not been arrayed as an accused in
the FIR. Similarly, it is not understood that how victim-prosecutrix
could be raped by the persons named in her statement recorded
under S.164 CrPC in a Bohri in the presence of other family members,
especially when it has not been stated that at the time of alleged
incident, none was present in the house. Call Detail Report collected
on record by the Investigating Agency clearly reveals that the victim-
prosecutrix had been talking to all the bail petitioners namely Vivek
Chaudhary, Rahul, Savan and Ajay Kumar for quite long.
Transcription of telephone conversation interse one of the bail
petitioner and victim/prosecutrix made available to this Court reveals
that in past also victim/prosecutrix had been meeting bail petitioners
and there is exchange of money also.
9. No doubt, age of the victim-prosecutrix at the time of
alleged incident was 16 years, but having noticed her conduct, which
can be well gauged from her contradictory statements given to the
police, judicial Magistrate and counselor, this court finds it difficult to
conclude that the victim-prosecutrix was incapable of understanding
the consequences of her being in the company of the persons named
by her in the FIR.
10. If version put forth by the victim-prosecutrix in both the
statements recorded under Ss. 154 and 164 CrPC, are read in its
entirety, it reveals that she had been joining the company of various
persons including bail petitioners of her own volition, and her sister-
.
in-law was aware of such fact. Moreover, there is another aspect of
the matter that when on 6.9.2021, victim-prosecutrix was sexually
assaulted against her wishes by bail petitioner Savan, it is not
understood that why she again joined the company of another two
persons namely, Ajay Kumar alias Kala and Bihari Lal on 7.8.2021
that too in her own house, in the presence of her sister-in-law.
11. First incident allegedly happened on 6.9.2021 and
thereafter second and third incident happened on 7th and
11th September, 2021 respectively. As per own case of the victim-
prosecutrix, she had been travelling from Balakrupi to Palampur and
Palampur to Kangra and Kangra to Jwala Ji between 6.9.2021 to
11.9.2021 but yet she did not find any chance/ place and time to
lodge complaint against the persons, who allegedly sexually
assaulted against her wishes.
12. Leaving everything aside, medical evidence adduced on
record, does not support the prosecution story and as such, this court
sees no reason to let the bail petitioners incarcerate in jail for an
indefinite period during trial, especially when nothing remains to be
recovered from them. Since alleged incidents are of three different
dates and in all the three incidents, persons are different, it is not
understood how Section 376-D and 120-B of IPC could be invoked in
the case at hand. Though, case at hand is to be considered and
decided by the learned trial Court on the basis of totality of evidence
.
collected on record by the investigating agency, but keeping in view
the aforesaid glaring aspect of the matter, there appears to be no
reason to curtail the freedom of the bail petitioners for indefinite
period during the trial. Apprehension expressed by learned Additional
Advocate General that in the event of bail petitioners being enlarged
on bail, they may flee from justice, can be best met by putting the
bail petitioners to stringent conditions.
13. 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
14. 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."
15. 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.
16. The Apex Court in Prasanta Kumar Sarkar versus 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.
17. In view of above, bail petitioners have carved out a case
for themselves. Consequently, present petitions are allowed and bail
petitioners are ordered to be enlarged on bail, subject to their
furnishing bail bonds in the sum of Rs.1,00,000/- with one local surety
each in the like amount, to the satisfaction of the learned trial Court,
besides the 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/her 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.
.
18. It is clarified that if the petitioners misuse the liberty or
violate any of the condition imposed upon them, the investigating
agency shall be free to move this Court for cancellation of the bail.
19. 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 these application alone. The
petitions stand accordingly disposed of.
Copy dasti.
15th March,2022 (Sandeep Sharma),
(shankar) Judge
