Reserved On: 10.10.2023 vs State Of Himachal Pradesh
2023 Latest Caselaw 16945 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.2314 of 2023 Reserved on: 10.10.2023 Date of Decision: 20.10.2023 _________________________________________________ Shyam Lal alias Shamu ....Petitioner Versus

State of Himachal Pradesh ...Respondent _________________________________________________ Coram Hon'ble Mr. Justice Sushil Kukreja, Judge Whether approved for reporting?1 ________________________________________________ For the petitioner : Mr. B.S. Chauhan, Senior Advocate, with Mr. Munish Datwalia, Advocate.

For the respondent: Mr. B.N. Sharma, Additional Advocate General.

________________________________________________ Sushil Kukreja, Judge

The instant petition has been filed by the

petitioner under Section 439 of the Code of Criminal

Procedure (Cr.P.C.), seeking bail in case FIR No.38/2023,

dated 23.02.2023, registered at Police Station Theog, District

Shimla, H.P., under Sections 363, 376, 506 of the Indian

1. Whether reporters of Local Papers may be allowed to see the judgment?

Penal Code (for short, 'IPC') read with Sections 4 & 6 of the

Protection of Children from Sexual Offences Act, 2012 (for

short, 'POCSO Act').

2. Briefly stated the facts of the case, as per the

status report filed by the respondent-State, are that on

23.02.2023, the complainant, i.e. the father of the victim,

lodged a complaint before the police, alleging therein that his

daughter (victim) was missing since 19.02.2023 and she did

not return home. On the basis of the said complaint, a case

under Section 363, IPC was registered. Thereafter, the police

carried out the search of the victim, who was found on

27.02.2023 in the fields of Shyam Lal @ Shamu (petitioner

herein) and then the police recorded her statement under

Section 161, Cr.P.C., wherein she stated that the petitioner

took her forcibly with him and threatened to kill her parents.

He took her to the house of his sister, where he used to

sleep with her in a separate room and committed rape upon

her.

3. During the course of investigation, the victim was

got medically examined at Civil Hospital Theog and her MLC

was obtained. Thereafter, on the basis of the statements of

the victim as well as her parents, Sections 376, 506 of IPC

and Section 4 of POCSO Act were added in the FIR in

question and the petitioner was arrested on 28.02.2023. The

police also got recorded the statement of the victim under

Section 164 Cr.P.C. and on receipt of SFSL, the charge-

sheet was presented before the trial Court on 24.04.2023.

4. The instant petition has been filed by the

petitioner on the ground that he is innocent and he has been

falsely implicated in the present case. Learned counsel for

the petitioner contended that the investigation of the case is

complete and nothing is to be recovered from the petitioner.

He further submitted that the petitioner is behind the bars

since 28.02.2023 and no fruitful purpose will be served by

keeping him behind the bars for an unlimited period, as the

charge-sheet has already been filed before the trial Court on

24.04.2023 and there is no likelihood of completion of the

trial in near future.

5. Conversely, the learned Additional Advocate

General has opposed the bail application on the ground that

the petitioner is involved in a serious offence of rape and

keeping in view the gravity of the offence, he is not entitled to

be released on bail. He further contended that if the

petitioner is enlarged on bail, he will try to influence the

witnesses and may also tamper with the prosecution

evidence.

6. I have given my considered thought to the rival

contentions raised and also gone through the police file as

well as the status report filed by the prosecution. The

allegation against the petitioner is that he had committed

sexual intercourse with the victim many times on the pretext

of marriage.

7. The law with respect to grant of bail is now well

settled. In Sanjay Chandra Vs. Central Bureau of

Investigation, (2012) 1 Supreme Court Cases 49, it has

been held that the object of bail is to secure the appearance

of the accused person at his trial by reasonable amount of

bail and that every man is deemed to be innocent until duly

tried and duly found guilty. Relevant portion of the aforesaid

judgment reads as under:-

"21. In bail applications, generally, it has been laid down from the earliest times that 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.

22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted 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 this country, 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.

23. Apart from the question of prevention being the object of a 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 un- convicted person for the purpose of giving him a taste of imprisonment as a lesson."

8. In Manoranjana Sinh alias Gupta Vs. CBI,

(2017) 5 SCC 218, the Hon'ble Apex Court reiterated the

decision rendered in Sanjay Chandra's case (supra) by

holding as under:-

"16. This Court in Sanjay Chandra Vs. Central Bureau of Investigation (2012) 1 SCC 40, 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 nor 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 a 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 and 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 that 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."

9. Similar reiteration of law can be found in

Dataram Singh Vs. State of Uttar Pradesh & Another,

(2018) 3 SCC 22, wherein it has been held that a person is

believed to be innocent until found guilty and the grant of

bail is the general rule and putting a person in jail or in a

prison or in a correction home is an exception. Relevant

portion of the aforesaid judgment reads as under:-

"1. 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.

..................

4. 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 Re-Inhuman Conditions in 1382 Prisons."

10. In the instant case during the trial, the statement

of the prosecutrix was recorded and she did not support the

case of the prosecution and had turned hostile. In her

statement before the trial Court, she stated as under:-

"I am 17 years old. The accused Shyam Lal had come to our house to work as mason. I do not remember the month and year when he had come to our house. Accused had not taken me anywhere. Accused had not done any wrong act with me.

At this stage, Ld. Special Public Prosecutor made a prayer for declaring the witness hostile and permitting her to cross-examine the witness as she is resiling from her previous statement recorded under Section 161 Cr.P.C. Prayer of the Ld. Special Public Prosecutor, is allowed.................."

11. The aforesaid statement of the prosecutrix before

the trial Court, prima facie, reveals that she had not

supported the case of the prosecution as she categorically

deposed that the petitioner had not taken her anywhere and

had not done any wrong act with her. In her cross-

examination by the Public Prosecutor, she had denied that

the accused made her to sleep with him in the house of Anju

for 3-4 days and had raped her and threatened her not to

disclose the occurrence to anyone. She also denied the

suggestion that the accused had left her in the fields and the

police had come to rescue her. As per the status report, at

the time of occurrence, age of the prosecutrix was about 17

years, as such, consent of the prosecutrix is immaterial as

she was below 18 years of age. However, as held by the

Hon'ble Supreme Court in Sanjay Chandra, Manoranjana

Sinh alias Gupta & Datram Singh's cases (cited supra), a

person is believed to be innocent until found guilty. As per

the case of the prosecutrix herself the petitioner-accused had

not taken her anywhere and had not done any wrong act with

her, therefore, the complicity, if any, of the petitioner is yet to

be established on record, as such, there is no reason to let

the petitioner incarcerate in jail for an indefinite period during

trial. The trial in the case has not progressed much as the

evidence of the prosecution has not been concluded yet and

there is no likelihood of completion of the trial in near future.

12. The petitioner has remained in custody since

28.02.2023 and he cannot be detained in custody for an

unlimited period. Further, the prosecution has failed to

produce any material on record to suggest that the petitioner

will tamper with the prosecution evidence on being enlarged

on bail and there is also nothing to suggest that the petitioner

will abscond and flee from justice, if released on bail, as

admittedly, he is a permanent resident of District Shimla.

13. Considering the overall facts and circumstances

of the case, this Court finds that the present is a fit case

where judicial discretion to admit the petitioner on bail is

required to be exercised in his favour. Accordingly, the bail

application is allowed and it is ordered that the petitioner,

who has been arrested by the police in case FIR No.38/2023,

dated 23.02.2023, registered at Police Station Theog, District

Shimla, H.P., under Sections under Sections under Sections

363, 376, 506 of IPC and Sections 4 & 6 of POCSO Act and

presently lodged in Model Central Jail Kanda (Shimla), shall

be forthwith released on bail, subject to his furnishing

personal bond to the tune of Rs.25,000/- (Rupees twenty five

thousand) with one surety in the like amount to the

satisfaction of learned trial Court. The bail order is, however,

subject to the following conditions:-

(i) that the petitioner will appear before the Court and the Investigating Officer whenever required ;

(ii) that he will not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing any facts to the Court or the police;

(iii) that he will not tamper with the prosecution evidence nor he will try to win over the prosecution witnesses or terrorise them in any manner;

(iv) that he will not deliberately and intentionally act in a manner which may tend to delay the investigation or the trial of the case.

(v) that he will not leave India without prior permission of the Court.

14. Needless to say that the Investigating agency

shall be at liberty to move this Court for cancellation of the

bail, if any of the aforesaid conditions is violated by the

petitioner.

15. Be it stated that any expression of opinion given

in this order does not mean an expression of opinion on the

merits of the case and the trial Court will not be influenced by

any observations made therein.

16. The Registry is directed to forward a soft copy of

the bail order to the Superintendent, Model Central Jail,

Kanda, District Shimla, H.P., through e-mail, with a direction

to enter the date of grant of bail in the e-prison software.

17. In case, the petitioner is not released within a

period of seven days from the date of grant of bail, the

Superintendent, Model Central Jail, Kanda, District Shimla,

is directed to inform this fact to the Secretary, HPSLSA,

Shimla. The Superintendent, Model Central Jail, Kanda, is

further directed that if the petitioner fails to furnish the bail

bonds, as per the order passed by this Court, within a period

of one month from today, then, the said fact be submitted to

this Court.

                                                         ( Sushil Kukreja )
October 20, 2023                                              Judge
      (VH)
             Digitally signed by VIRENDER

VIREND       BAHADUR
             DN: C=IN, O=HIGH COURT OF
             HIMACHAL PRADESH, OU=HIGH
             COURT OF HIMACHAL PRADESH


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             PostalCode=171001, S=Himachal
             Pradesh, SERIALNUMBER=

BAHADU       fed3018c26866cd3d598cb3749b3fb29d
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             CN=VIRENDER BAHADUR
             Reason: I am approving this document

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             Date: 2023.10.20 21:32:18+05'30'
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