Parveen Kumar vs State Of Himachal Pradesh
2024 Latest Caselaw 8680 HP

Himachal Pradesh High Court

Parveen Kumar vs State Of Himachal Pradesh on 2 July, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

                                                                                   2024:HHC:4738




        IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

              Cr.MP(M) Nos.1313, 1342, 1343 & 1344 of 2024




                                                                                .
                                        Decided on: 02.07.2024





    ____________________________________________________________
    1.   Cr.MP(M) No.1313 of 2024
    Parveen Kumar                                                          ...........Petitioner





                                                  Versus
    State of Himachal Pradesh                 ..........Respondent
    ____________________________________________________________





    2.         Cr.MP(M) No.1342 of 2024
    Suresh Kumar           r                                               ...........Petitioner
                                                  Versus

    State of Himachal Pradesh                 ..........Respondent
    ____________________________________________________________
    3.    Cr.MP(M) No.1343 of 2024
    Puran Chand                                                            ...........Petitioner



                                                  Versus
    State of Himachal Pradesh                 ..........Respondent




    ____________________________________________________________
    4.    Cr.MP(M) No.1344 of 2024





    Sat Pal                                                                ...........Petitioner
                                                  Versus





    State of Himachal Pradesh                 ..........Respondent
    ____________________________________________________________
    Coram:
    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting? 1

    1
        Whether the reporters of the local papers may be allowed to see the judgment?




                                                               ::: Downloaded on - 08/07/2024 20:29:59 :::CIS
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    For the Petitioner     :     Mr. Vikas Rajput, Advocate.




                                                         .

    For the Respondent     :    Mr. Rajan Kahol, Mr. Vishal
                                Panwar and Mr. B.C. Verma,
                                Additional Advocates General, for





                                the respondent/State along with
                                ASI Harish Sain, I.O., Women
                                Police Station, Una.
    ____________________________________________________________





    Sandeep Sharma, Judge (oral):

Sequel to orders dated 25/26.06.2024, whereby

petitioners herein were ordered to be enlarged on interim bail

in the event of their arrest in case FIR No.19/2024 dated

21.06.2024, under Sections 376, 354, 342 & 34 IPC,

registered with Women Police Station Una, District Una, H.P.,

respondent/State has filed status report and ASI Harish Sain,

I.O., Women Police Station, Una, has come present along with

record. Record perused and returned.

2. Close scrutiny of status report as well as record

made available to this Court reveals that on 21.06.2024,

victim/prosecutrix (name withheld) got her statement

recorded under Section 154 Cr.P.C. at Women Police Station

Una, alleging therein that while she was residing along with

.

her sister at Bharatgarh, Punjab, bail petitioner namely

Parveen Kumar, who used to reside in the upper storey,

developed physical relations with her on the pretext of

marriage. She alleged that repeatedly bail petitioner-Parveen

Kumar sexually assaulted her against her wishes and on two-

    three   occasions,
                   r     she   had        became      pregnant,         but      bail

petitioner-Parveen Kumar got the pregnancy aborted. She

alleged that on 16.06.2024, when she went to the house of

bail petitioner-Parveen Kumar, he refused to solemnize the

marriage and the other co-accused namely Sat Pal, Puran

Chand and Suresh Kumar (petitioners herein) forcibly took

her in a room and attempted to commit rape, however, she

was able to escape. In the aforesaid background, FIR, as

detailed hereinabove, came to be lodged against bail

petitioner-Parveen Kumar as well as other co-acccused,

named hereinabove.

3. Before petitioners could be arrested in the case,

detailed hereinabove, they approached this Court in the

.

instant bail petitions. Vide orders dated 25/26.06.2024, this

Court while enlarging the bail petitioners on interim bail,

specifically directed them to join the investigation. Since bail

petitioners have joined investigation and nothing remains to

be recovered from them, prayer has been made on their

behalf for confirmation of the interim bail granted vide orders

dated 25/26.06.2024.

4. Mr. Rajan Kahol, learned Additional Advocate

General while fairly admitting factum with regard to

completion of investigation and joining of the investigation by

the bail petitioners submits that though nothing remains to

be recovered from the bail petitioners, but keeping in view the

gravity of offence alleged to have been committed, they do not

deserve any leniency. While making this Court peruse

statements of victim-prosecutrix recorded under Sections 154

and 164 Cr.P.C., Mr. Kahol contends that bail petitioner-

Parveen Kumar sexually assaulted victim/prosecutrix against

her wishes for three years and on two-three occasions, he

.

also got her pregnancy aborted. Mr. Kahol states that as per

statement given by victim/prosecutrix, other co-accused

namely Puran Chand, Suresh Kumar and Sat Pal also

attempted to sexually assault the victim/prosecutrix. While

opposing the prayer made on behalf of the bail petitioners,

Mr. Kahol states that in the event of petitioners being

enlarged on bail, they may not only flee from justice, but may

also cause harm to victim/prosecutrix, whose statement is

yet to be recorded in the Court of law.

5. Having heard learned counsel representing parties

and perused material available on record, this Court finds

that victim/prosecutrix aged 24 years is a married lady. Prior

to alleged incident, she had solemnized marriage in the year

2016, but her husband had died in the year 2020. From

earlier marriage, victim/prosecutrix has two children. As per

own case of victim/prosecutrix, she had been in physical

relationship with bail petitioner-Parveen Kumar for last three

years, however, FIR came to be registered on 16.06.2024,

.

when allegedly, bail petitioner-Parveen Kumar refused to

solemnize the marriage. Record further reveals that during

aforesaid period of three years, victim/prosecutrix had

solemnized marriage with person namely Chanchal Singh,

from whom, allegedly bail petitioner-Parveen Kumar

compelled victim/prosecutrix to take divorce.

6. Interestingly, on 16.06.2024, victim/prosecutrix

went to the house of the bail petitioner-Parveen Kumar, but

on that day, co-accused Sat Pal, Puran Chand and Suresh

Kumar forcibly took her in a room and attempted to sexually

assault her against her wishes. If the statement of

victim/prosecutrix recorded under Section 154 Cr.P.C. is

perused juxtaposing statement given by her under Section

164 Cr.P.C., there are material contradictions. In her

statement recorded under Section 154 Cr.P.C., she nowhere

stated that while she was forcibly taken in a room by co-

accused Sat Pal, Suresh Kumar and Puran Chand, she was

subjected to forcible sexual intercourse by the bail petitioner-

.

Parveen Kumar, rather at that time, she only stated that

while she had gone to house of petitioner to remind him that

he had promised her to solemnize marriage, three co-accused

namely Sat Pal, Suresh Kumar and Puran Chand forcibly

took her in a room and attempted to commit rape. However,

while making deposition under Section 164 Cr.P.C. before the

Magistrate, she took a u-turn and made wild allegations.

Record further reveals that on 26.06.2024, victim/prosecutrix

made a statement to Police that she of her own volition and

without there being any external pressure had joined the

company of the bail petitioner-Parveen Kumar. No doubt, bail

petitioners are accused of heinous crime punishable under

Section 376 IPC, but having perused the statements made by

victim/prosecutrix recorded under Section 154 and 164

Cr.P.C., this Court is not persuaded to agree with learned

Additional Advocate General that petitioner-Parveen Kumar

taking undue advantage of innocence of victim/prosecutrix

sexually assaulted her against her wishes.

.

7. In the case at hand, victim/prosecutrix aged 24

years was in continuous physical relationship with bail

petitioner-Parveen Kumar, however, allegations of forcible

sexual intercourse/sexual assault came to be made against

bail petitioner-Parveen Kumar for first time on 16.06.2024,

when allegedly, she had gone to house of the bail petitioner to

remind him of his promise. Apart from above, during the

period of three years, victim/prosecutrix solemnized marriage

with other person Chanchal Singh, from whom, later on she

took divorce and started living with bail petitioner-Parveen

Kumar. Moreover, version putforth by the victim/prosecutrix

regarding involvement of three other co-accused, named

hereinabove, cannot be accepted on its face-value, on account

of the fact that no such version was put forth by the

victim/prosecutrix while recording her statement under

Section 154 Cr.P.C. Though, case at hand is to be heard and

decided by the Court below on the basis of totality of evidence

collected on record by the Investigating Agency, but keeping

.

in view the aforesaid glaring aspects of the matter, this Court

is not persuaded to agree with learned Additional Advocate

General that taking undue advantage of the innocence of

victim/prosecutrix, bail petitioner sexually assaulted her

against her wishes, rather conduct of victim/prosecutrix as

well as statements recorded by the Police and learned

Magistrate suggest something else. 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 evidence on

record. 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 petitioner.

.

8. 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.

9. 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."

10. 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."

11. 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.

12. 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.

13. Consequently, in view of the above, orders dated

25/26.06.2024 passed by this Court, are made absolute, 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.

.

14. It is clarified that if the petitioners misuses their

liberty or violates 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 case and

shall remain confined to the disposal of this application alone.

16. The bail petitions stand disposed of accordingly.

The petitioners are permitted to produce copy of order

downloaded from the High Court website and the trial Court

shall not insist for certified copy of the order, however, it may

verify the order from the High Court website or otherwise.

    July 02, 2024                              (Sandeep Sharma),





    Rajeev Raturi                                   Judge