Vivek Shrma vs Unknown
2022 Latest Caselaw 3906 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                ON THE 30nd DAY OF MAY, 2022
                           BEFORE
              HON'BLE MR. JUSTICE SANDEEP SHARMA
            CRIMINAL MISC.PETITION (MAIN) No. 1029 of 2022.




                                                          .

    VIVEK SHRMA, SON OF SH. ARBIND
    KUMAR SHARMA, R/O VILLAGE AND
    P.O. POLIAN BEAT, PS AND TEHSIL
    HAROLI, DISTRICT UNA, H.P.





                                                ......PETITIONER
    (BY MS. SHILPA SOOD, ADVOCATE)

    AND





    STATE OF HIMACHAL PRADESH.
                                                ......RESPONDENT

    (BY MR. SUDHIR BHATNAGAR AND
    MR.     NARINDER     GULERIA,
    ADDITIONAL
                r       ADVOCATE

    GENERALS)

            CRIMINAL MISC.PETITION (MAIN) No. 1032 of 2022.

    PANKAJ, S/O SH. KEHAR SINGH, R/O


    VILLAGE AND P.O. POLIAN BEAT, PS
    AND TEHSIL HAROLI, DISTRICT UNA,
    H.P.
                                                ......PETITIONER




    (BY MS. SHILPA SOOD, ADVOCATE)

    AND





    STATE OF HIMACHAL PRADESH.
                                                ......RESPONDENT





    (BY MR. SUDHIR BHATNAGAR AND
    MR.     NARINDER     GULERIA,
    ADDITIONAL          ADVOCATE
    GENERALS)

            CRIMINAL MISC.PETITION (MAIN) No. 1033 of 2022.

    KARAN, S/O SH. RANDEEP KUMAR
    SHARMA, R/O VILLAGE AND P.O.
    POLIAN BEAT, PS AND TEHSIL
    HAROLI, DISTRICT UNA, H.P.
                                                ......PETITIONER
    (BY MS. SHILPA SOOD, ADVOCATE)




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    AND

    STATE OF HIMACHAL PRADESH.
                                                        ......RESPONDENT




                                                                  .

    (BY MR. SUDHIR BHATNAGAR AND
    MR.     NARINDER     GULERIA,
    ADDITIONAL          ADVOCATE





    GENERALS)

    Whether approved for reporting?





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

                          ORDER

Bail petitioners, namely Vivek Sharma, Pankaj and Karan,

who are behind the bars since October, 2020, have approached this

Court in the instant proceedings filed under Section 439 Cr.PC, for

grant of regular bail in FIR No. 40/2020, dated 10.10.2020, under

Sections 376-D and 34 of IPC, registered at Women Police Station

Una, H.P.

2. Respondent-State has filed status report, in terms of

order dated 13.05.2022. On 27.05.2022, Investigating Officer had

come present with the record, however, on that day, learned counsel

representing the petitioner apprised this Court that statement of

victim/prosecutrix stands recorded in the trial court and she has resiled.

This Court with a view to enable learned Additional Advocate General

to ascertain the aforesaid factum, adjourned the matter to today's date.

3. Mr. Narinder Guleria, learned Additional Advocate

General, on instructions of Investigating officer fairly admits that

victim/prosecutrix has resiled from her statement given to the police.

4. Close scrutiny of status report/record, reveals that on

10.10.2020, victim/prosecutrix (name withheld), aged 21 years, lodged

.

a complaint at Women Police Station, Una, alleging therein that bail

petitioners named hereinabove, sexually assaulted her against her

wishes two days' back. She alleged that two days' back, while her

parents were sleeping, bail petitioners named hereinabove, called her

outside on the pretext that they want to have important conversation

and when she refused, they blackmailed her that in case, she doesn't

come, they would upload her obscene photographs on the internet.

She alleged that under the threat, she went outside her house, but bail

petitioners herein, sexually assaulted her near bushes against her

wishes. She alleged that she never disclosed this alleged incident to

her parents and bail petitioners used to call her repeatedly, but she

never used to go. She alleged that yesterday bail petitioners again

blackmailed her and said that in case, she doesn't come, they would

make her obscene photographs viral and as such she went to meet

them. She alleged that bail petitioner Karan sexually assaulted her, but

before Vivek and Pankaj could make physical relations with her, her

brother reached and bail petitioners fled away from the spot. In the

aforesaid background, FIR, as detailed hereinabove, came to be

lodged against the bail petitioners on 10.10.2020 and since then, they

are behind the bars. Since, investigation in the case is complete and

statements of victim/prosecutrix and her brother Rahul stand recorded

in the trial court, petitioners have approached this Court by way of

instant proceedings for grant of regular bail.

5. While fairly admitting factum with regard to filing of

challan in the competent court of law and recording the statements of

.

victim/prosecutrix and her brother Rahul, Mr. Narinder Guleria, learned

Additional Advocate General, contends that keeping in view the gravity

of offence alleged to have been committed by bail petitioners, they do

not deserve any leniency and as such, prayer having been made on

their behalf for grant of bail may be rejected outrightly. Mr. Guleria,

while inviting attention of this Court to report of RFSL, further contends

that DNA of one of the bail petitioner namely Karan, has matched with

DNA profile of victim/prosecutrix and as such, it cannot be said that

bail petitioners have been falsely implicated.

6. Having heard learned counsel representing the parties

and perused the material available on record, this Court finds that

victim/prosecutrix, who at the time of alleged incident, was 21 years

old, claimed that initially she was sexually assaulted against her wishes

by the bail petitioners under the threat that in case, she doesn't

succumb to their desire, they would make her obscene photographs

viral, but it is not understood that what prevented victim/prosecutrix to

report the matter to her parents or police at the first instance. In the

case at hand, matter came to be reported to police on 10 th October,

2022 for the first time, whereas, bail petitioners allegedly were

blackmailing victim/prosecutrix for months together prior to lodging of

FIR at hand. Otherwise also, matter came to be reported to police

when brother of victim/prosecutrix reached the spot where allegedly

victim/prosecutrix was being sexually assaulted against her wishes by

the accused persons.

.

7. Leaving everything aside, victim/prosecutrix as well as

her brother in their statements given to trial court, nowhere supported

the case of the prosecution. Both Victim/prosecutrix as well as her

brother have completely denied the case of the prosecution. Cross-

examination conducted upon these witnesses nowhere suggest that

r to prosecution was able to extract something contrary to what these

witnesses stated in their examination-in-chief. This Court cannot

loose sight of the fact that at the time of alleged incident,

victim/prosecutrix was major and as such, it cannot be said that bail

petitioners taking undue advantage of her innocence and minority,

exploited her. No doubt, RFSL report adduced on record suggests that

DNA profile of one of the accused namely Karan matched with DNA

profile of victim/prosecutrix, but once, victim/prosecutrix herself has

denied factum, if any, of alleged incident, report of RFSL may not be of

much relevance, especially, when victim/prosecutrix is major. Though,

case at hand is to be decided by the court below in totality of evidence

collected on record by the prosecution, but keeping in view the

aforesaid glaring aspects of the matter, this Court sees no reason to

let bail petitioners incarcerate in jail for indefinite period, especially

when they have already suffered for more than 1 ½ years.

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 him to the stringent conditions.

8. Otherwise also Hon'ble Apex Court as well as this Court

have held in catena of judgments, that till the time, guilt of a person is

.

not proved in accordance with law, he/she is deemed to be innocent.

9. 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 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 has 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.

10. 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.

11. 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."

12. 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 r amount to violation of Article 21 of the Constitution was highlighted."

13. 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.

14. In view of the aforesaid discussion as well as law laid

down by the Hon'ble Apex Court, bail petitioners have carved out a

case for grant of bail, accordingly, the petition is allowed an d the

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

.

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

one local surety in the like amount each 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/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.

15. It is clarified that if the petitioners misuse the 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.

16. 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 stand

accordingly disposed of.

Copy dasti.

(Sandeep Sharma) Judge

30th May, 2022 (reena)