Yoginder Singh vs State Of Hp
2024 Latest Caselaw 9415 HP

Himachal Pradesh High Court

Yoginder Singh vs State Of Hp on 12 July, 2024

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MP (M) No.1061 of 2024 Reserved on: 08.07.2024 Pronounced on: 12.07.2024 __________________________________________________________

.

    Yoginder Singh                              .....Petitioner





                               Versus
    State of HP                                 ......Respondent





    Coram

Hon'ble Mr. Justice Ranjan Sharma, Judge 1 Whether approved for reporting?

For the petitioner: Mr. Ravinder Singh Chandel, Advocate.

For the respondent: Mr. Hemant K. Verma, Deputy

Advocate General.

Ranjan Sharma, Judge Bail petitioner [Yoginder Singh], has come up

before this Court, seeking pre-arrest bail, under Section

438 of the Code of Criminal Procedure [hereinafter

referred to as 'Cr.P.C.'], originating from FIR No.57

of 2024, dated 03.05.2024, under Sections 354 and 354-

A of the Indian Penal Code [hereinafter referred to as

'IPC'] and Sections 10 and 12 of the Protection of Children

from Sexual Offences Act, 2012 [hereinafter referred to

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

'POCSO Act'], registered at Police Station, Dhalli,

District Shimla [H.P.].

FACTUAL MATRIX:

.

2. Bail petitioner [Yoginder Singh] has come up

before this Court, under Section 438 Cr.P.C., seeking

pre-arrest bail, originating from FIR No.57 of 2024,

dated 03.05.2024, registered at Police Station, Dhalli,

District Shimla, [H.P.], under Sections 354 & 354-A IPC

2(i).

r to and Sections 10 and 12 of the POCSO Act.

Case set up by Mr. Ravinder Singh Chandel,

Learned Counsel, is that the bail petitioner [Yoginder

Singh] is Drawing Master in GHS Dhaali, under

Education Complex Piran, District Shimla, and there is

no short-coming with respect to his work and conduct. It

is averred that despite being a Drawing Master in fact

he is performing the teaching work of Social Studies,

Physical Education, Yoga and Sanskrit in the said

School, due to shortage of teachers. It is averred that the

Pradhan of Gram Panchayat had ideological and other

issues with the petitioner. It is averred that the bail-

petitioner [Yoginder Singh] has been implicated on false

and frivolous grounds and he has nothing to do with the

.

alleged offence.

2(ii). It is further averred that the petitioner

approached the Learned Additional Sessions Judge, Fast

Track, Special Court (POCSO), vide Bail Application

No.230 of 2024, on 06.05.2024, which was dismissed on

08.05.2024 [Annexure P-1]. Therefore, the petitioner

approached this Court in Cr.MP(M) No.990 of 2024,

which was dismissed, as withdrawn on 10.05.2024,

[Annexure P-2], with liberty to avail remedy, at

appropriate stage.

2(iii). Learned Counsel further submits that the

petitioner has furnished undertaking that he is ready and

willing to furnish personal bond and surety bond and

shall not leave the jurisdiction of this Court. The

petitioner has given undertakings that he shall join

investigation as and when called for and shall not

tamper with the evidence or witnesses and shall not

cause any inducement, threat or promise to any person

or persons acquainted with the facts of the case, in

.

any manner.

PROCEEDINGS BEFORE THIS COURT:

[

3. Upon filing of the bail petition, this Court

issued notice on 17.05.2024, directing the State

Authorities to file Status Report in the matter. In view of

the averments made in the petition; coupled with fact

that the petitioner was placed under suspension and his

Headquarter was fixed at GSSS, Dodra [Shimla],

therefore, this Court granted interim bail to the

petitioner.

3(i). The matter was then listed on 24.05.2024

when, status report dated 24.05.2024, on instructions

of SHO, Police Station, Dhalli was taken on record and

copy was furnished to learned counsel for the petitioner.

The matter was then listed on 17.06.2024 when, the

State Authorities had filed the Second Status Report

dated 17.06.2024, on instructions of SHO concerned and

copy thereof was furnished to learned counsel for

petitioner. The matter was listed on 28.06.2024 and on

.

08.07.2024 when, the State Authorities furnished the

Fresh Status Reports, on instructions of SHO concerned

and copies thereof were furnished to learned counsel for

the petitioner. Matter was listed on 08.07.2024 and with

the consent of parties, the same was take up for final

adjudication by this Court.

STAND OF STATE AUTHORITIES:

4. A perusal of the Status Reports dated

24.05.2024, 17.06.2024, 28.06.2024 and 08.07.2024

reveal that these reports are pari materia, revealing the

material gathered by the Investigating Agencies in the

matter.

4(i). Status Reports indicate that the FIR was

registered at the instance of the mother [Y] of the victim

[X] stating that while the petitioner was serving as

Drawing Teacher, in GHS Dhaali [SML] and was taking

extra Class on 02.05.2024, he was alleged to have taken

the victim [X], to one side of the Class and showed her

the nude video and was alleged to have touched her

.

upper private parts with bad intention. Status Reports

indicate that petitioner had resorted to similar incident(s)

on earlier occasions also. The status Report indicates

that investigating agencies recorded the statement of

victim [X] under Section 161 Cr.P.C. and the statement

under Section 164 Cr.P.C. was recorded on 06.05.2024,

before the jurisdictional Court. Status Report indicates

that, on 08.05.2024, the complainant-mother [Y] had

deposed before the jurisdictional Court that she had filed

the complaint against the petitioner, due to some

misunderstanding and she was no longer interested,

in pursuing the complaint. Status Report indicates that

after grant of interim bail on 17.05.2024, the petitioner

appeared before the Investigating Agencies on 18.05.2024

and the mobile taken in possession by the police was

sent to SFSL for examination. The result of SFSL

indicates that "no obscene video was found present

in the data from the mobile phone of the petitioner". The

Status Report(s) indicate that nothing was to be

.

recovered from the bail petitioner and the investigation is

complete and challan has been presented before the

competent Court, i.e. Additional Sessions Judge [Rape

and POCSO], Shimla, by the police on 01.07.2024.

In terms of the Status Reports, the Learned

petition.

r to State Counsel has prayed for dismissal of the bail

5. Heard Mr. Ravinder Singh Chandel, learned

counsel for the bail petitioner and Mr. Hemant K.

Verma, Learned Deputy Advocate General, for the

respondent-State.

6. Before dealing with the present application,

it is necessary to have recap of the provisions of

Sections 354 and 354-A IPC and Sections 10 and 12 of

the POCSO Act, as under:-

"Section 354 Indian Penal Code:

Assault or criminal force to woman with intent to outrage her modesty.--

Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, 1 [shall be punished with imprisonment of either description for a term which shall not be less

.

than one year but which may extend to five years,

and shall also be liable to fine]."

"Section 354-A Indian Penal Code:

Sexual harassment and punishment for sexual harassment.--

(1) A man committing any of the following acts--

           r     (i)


                 (ii)   to

physical contact and advances involving unwelcome and explicit sexual overtures; or

a demand or request for sexual favours; or

(iii) showing pornography against the will of a woman; or

(iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment.

(2) Any man who commits the offence specified in clause

(i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term

which may extend to three years, or with fine, or with both.

(3) Any man who commits the offence specified in clause

(iv) of sub-section (1) shall be punished with imprisonment of either description for a term which

may extend to one year, or with fine, or with both."

"Section 10 of the Protection of Children from Sexual Offences Act, 2012:

Punishment for aggravated sexual assault:

Whoever, commits aggravated sexual assault shall be

punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine."

"Section 12 of the Protection of Children from Sexual Offences Act, 2012:

.

Punishment for sexual harassment:

Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three

years and shall also be liable to fine."

7. Notably, the claim of the suspect-accused

for pre-arrest or post-arrest bail-regular bail is to be

examined/tested

within the parameters

of the Code of Criminal Procedure and also the broad r prescribed

para-meters mandated by the Hon'ble Supreme Court

regulating grant of bail in Gurbaksh Singh Sibbia

versus State of Punjab (1980) 2 SCC 565, Ram Govind

Upadhyay versus Sudarshan Singh (2002) 3 SCC 598;

Kalyan Chandra Sarkar versus Rajesh Ranjan,

(2004) 7 SCC 528; Prasanta Kumar Sarkar versus

Ashish Chatterjee, (2010) 14 SCC 496; reiterated in

P. Chidambaram versus Directorate of Enforcement,

(2019) 9 SCC 24, mandating that the bail {anticipatory

- 10 -

or regular} is to be granted where the case is frivolous

or groundless and no prima-facie or reasonable grounds

exists which lead to believe or point out towards

.

accusation; and these parameters for regular bail

have been reiterated in Sushila Aggarwal versus State-

NCT Delhi, (2020) 5 SCC 01.

7(i). While dealing with the case for grant of

bail, the three judges bench of Hon'ble Supreme Court,

after reiterating the broad parameters, has held in

Deepak Yadav versus State of Uttar Pradesh, (2022)

8 SCC 559, in Para-25 that the nature of the crime

has a huge relevancy, while considering claim for bail.

7(ii). In the case of Ansar Ahmad versus State

of Uttar Pradesh, 2023 SCC Online SC 974, the

Hon'ble Supreme Court had expanded the horizon of

the broad parameters, which are to be primarily taken

into account, for considering the claim for regular

bail or anticipatory bail as under:

"11. Mr. R. Basant, the learned Senior Counsel appearing for one of the private respondents

- 11 -

that the Court while granting bail is not required to give detailed reasons touching the merits or de-merits of the prosecution case as any such observation made by the Court in a bail matter can unwittingly cause

.

prejudice to the prosecution or the accused

at a later stage. The settled proposition of law, in our considered opinion, is that the order granting bail should reflect the

judicial application of mind taking into consideration the well-known parameters including:

(i) The nature of the accusation weighing in the gravity and severity of the offence;

(ii) The severity of punishment;

(iii) The position or status of the accused, i.e. whether the accused can exercise influence on the victim and the witnesses or not;

(iv) Likelihood of accused to approach or try to approach the victims/ witnesses;

(v) Likelihood of accused absconding from proceedings;

(vi) Possibility of accused tampering with evidence;

(vii) Obstructing or attempting to obstruct the due course of justice;

(viii) Possibility of repetition of offence if left out on bail;

(ix) The prima facie satisfaction of the court in support of the charge

- 12 -

including frivolity of the charge;

(x) The different and distinct facts of each case and nature of substantive and corroborative evidence.

12. We hasten to add that there can be

.

several other relevant factors which,

depending upon the peculiar facts and circumstances of a case, would be required

to be kept in mind while granting or refusing bail to an accused. It may be difficult to illustrate all such circumstances, for there cannot be any straight jacket

r to formula for exercising the discretionary jurisdiction vested in a Sections 438 and 439 respectively of the Cr.PC, as the case may be."

                                                                    Court    under

    7(iii).    In normal parlance, the principle of law is

that bail is a rule and jail is an exception. However,

this Court is conscious of the fact that the power

under Section 438 Cr.P.C. is an extraordinary power and

the same has to be exercised sparingly. It is trite law

that while considering the prayer for bail {pre-arrest

bail or regular bail], the formation of prima-facie opinion is

to be gathered, as to whether reasonable grounds exist

pointing towards accusation or whether the accusation

- 13 -

is frivolous and groundless with the object of either

injuring or humiliating or where a person has falsely

been roped in the crime needs to be tested in the

.

background of the self-imposed restrains or the broad

parameters mandated by law, as referred to herein

above.

7(iv). This Court is also conscious of the fact

that as per the mandate of law, in Criminal Appeal

No.3840 of 2023, titled as Saumya Churasia versus

Directorate of Enforcement, decided on 14.12.2023,

while considering the prayer for bail, though a Court

is not required to weigh the evidence collected by

the Investigating Agency meticulously, nonetheless, the

Court should keep in mind the nature of accusation, the

nature of evidence collected in support thereof, the

severity of punishment prescribed for alleged offences,

the character of the accused, the circumstances which

are peculiar to the accused, the reasonable possibility

of securing the presence of the accused during trial,

- 14 -

reasonable apprehension of the witnesses being

tampered with, the large interests of the public/state.

In this background, while testing the claim

.

for bail, the Court is required to form a prima-facie

opinion in the context of the broad-parameters referred

to above, without delving into the evidence on merits,

as it may tend to prejudice the rights of the accused

as well as the prosecution.

8.

ANALYSIS OF CLAIM IN INSTANT CASE:

In the entirety of facts and circumstances

including statutory provisions and the mandate of

law, this Court is of the considered view, the instant bail

petition is allowed and the bail petitioner [Yoginder

Singh], is entitled to be enlarged on bail, by making the

interim bail orders dated 17.05.2024, absolute, for the

following reasons:-

8(i). Prima facie accusation is not made out

against the bail petitioner, at this stage.

8(ii). The material on record, including Status

- 15 -

Report(s) do not point out any reasonable grounds to

believe, the accusation against the bail petitioner, at this

stage.

.

The material on record indicates that

complainant [Y], being the mother of the victim [X]

has alleged in the complaint that the petitioner while

taking an extra Class had taken the Victim [X], in one

side of the Class, whereas the Victim [X] in her statement

made under Section 161 Cr.P.C. has alleged that the

incident took place outside the Class after the extra class

was over. This appears to be improbable when, there

were 11 students in the Class [5 girls and 6 boys] and,

the allegation that the petitioner took Victim [X] to one

side of the Class and showed video creates doubt in the

complaint and the version of victim.

Even a perusal of the statement of Victim [X]

recorded, under Section 164 Cr.P.C, on 6.5.2024 before

the jurisdictional Court reveals that no such incident had

taken place and due to misunderstanding he had

- 16 -

narrated an incorrect version to her mother-

Complainant.

Even on 08.05.2024, the Complainant [Y],

.

being the mother of Victim [X], has made a statement

before the jurisdictional Court, that she had filed the

complaint against the petitioner, on which the FIR was

registered, due to misunderstanding and no such

incident had taken place.

mobile During

phone

of

investigation,

the petitioner, the

in police took

possession the

on

18.05.2024 and had sent the same to SFSL, for

examination. The SFSL report, as borne out in the

Status Report indicates that no obscene video was found

present in the data extracted from the mobile phone

of the bail petitioner.

Taking into account the material on record,

including the Status Reports, this Court is of the

considered view, that neither the prima facie accusation

nor reasonable grounds exist to believe the accusation

- 17 -

against the bail petitioner. Conversely, the material on

record prima facie, disproves the complaint and FIR

against the petitioner, at this stage.

.

8(iii). Claim for bail carries weight, for the reason,

that no prima facie accusation or reasonable grounds

exist against the bail petitioner. The object of bail is

neither punitive nor preventative. Once the material

on record, does not suggest the accusation against the

petitioner, therefore, certainly denial of bail will amount

to depriving and curtailing the liberty of the bail

petitioner, at this stage. Moreover, in the facts of this

case, the denial of bail to the petitioner, just for the

purpose of giving him a taste of imprisonment as a

lesson, will give precedence to punitively, by ignoring his

liberty under Section 21 of the Constitution of India

and more-so, when no accusation as per the available

material on record is not borne out. Even the Hon'ble

Supreme Court of India in Guddan alias Roop Narayan

Versus State of Rajasthan, 2023 SCC OnLine SC

- 18 -

1242, has outlined that the object of bail is neither

punitive and preventative, in the context of Article 21 of

the Constitution of India, in following terms:-

.

"11. In the case of Sanjay Chandra V. Central

Bureau of Investigation, (2012) 1 SCC 40, while hearing a bail Application in a case of an alleged economic offence, this court held that the object of bail is neither punitive nor

preventative. It was observed 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 is 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.

23. 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 purpose

of giving him a taste of imprisonment as a lesson.

25. The provisions of CrPC confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trial or in appeal against convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by

- 19 -

balancing the valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, is a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect

.

for the requirement that a man shall

be considered innocent until he is found guilty. If such power is recognised, then it may lead to chaotic situation and would jeopardise the personal liberty of

an individual.

27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal

liberty of the individual guaranteed under Article 21 of the Constitution."

12. Further, in the case of Sandeep Jain v. National Capital Territory of Delhi, (2000) 2 SCC 66,

this Court, while hearing a bail application held that conditions for grant of bail cannot

become so onerous that their existence itself is tantamount to refusal of bail. This Court held as under:

" We are unable to appreciate even the first order passed by the Metropolitan Magistrate

imposing the onerous condition that an accused at the FIR stage should pay a huge sum of Rs. 2 lakhs to be set at liberty. If he had paid it is a different matter.

But the fact that he was not able to pay that amount and in default thereof he is to

languish in jail for more than 10 months now, is sufficient indication that he was unable to make up the amount. Can he be detained in custody endlessly for

his inability to pay the amount in the range of Rs.2 lakhs? If the cheques issued by his surety were dishonoured, the Court could perhaps have taken it as a ground to suggest to the payee of the cheques to resort to the legal remedies provided by law.

Similarly if the Court was dissatisfied

- 20 -

with the conduct of the surety as for his failure to raise funds for honouring the cheques issued by him, the Court could have directed the appellant to substitute him with another surety. But to keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is

.

not only hard but improper. It must be

remembered that the Court has not even come to the conclusion that the allegations made in the FIR are true. That can be decided only when the trial concludes, if

the case is charge-sheeted by the police."

In the backdrop of the mandate of law in

Guddan alias Roop Narayan [supra] since neither

any prima facie accusation nor reasonable grounds exist,

then, the detention will lead to deprivation of liberty of

the petitioner.

8(iv). Even, the State Authorities in the Status

Reports have stated that the investigation is complete

and nothing is to be recovered from the bail petitioner.

Even the challan has been presented before the

jurisdictional Court on 01.07.2024. In these

circumstances, once no recovery is due from the bail

petitioner coupled with the fact that the investigation is

complete and challan/final police report has been

- 21 -

presented before the jurisdictional Court and no

adversarial past criminal antecedents exist, therefore, the

prayer of the petitioner for enlargement on bail needs to

.

be accepted in peculiar facts of this case.

8(v). Status Reports do not indicate any likelihood

of petitioner fleeing away from the jurisdiction of the

Court or possibility of the bail petitioner tampering with

the evidence or the witnesses or causing inducement,

threat or promise to the witnesses or the persons

acquainted with the facts of the case. In absence of any

such possibility, this Court is of the considered view, that

prayer for enlargement of the petitioner on bail carries

weight and the same is accepted.

9. Taking into account the facts and

circumstances and the mandate of law and the

discussion made hereinabove, the instant petition

is allowed, and the orders dated 17.05.2024 granting

interim bail, are made absolute, subject to the

compliance of the conditions, already imposed by this

- 22 -

Court, in the orders, dated 17.05.2024 for all intents

and purposes.

10. It is clarified that any observations made

.

hereinabove shall not be construed as findings either for

the purposes of investigation or trial, which shall

proceed, in accordance with law, without being

prejudiced by the observations.

In aforesaid terms, the petition is allowed and

disposed of.

r to all pending miscellaneous application(s) shall stand

(Ranjan Sharma) Judge July 12, 2024 [Bhardwaj]