Urvashi vs State Of Himachal Pradesh
2024 Latest Caselaw 15057 HP

Himachal Pradesh High Court

Urvashi vs State Of Himachal Pradesh on 15 October, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

                                                                                    2024:HHC:9765




       IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
                             Cr.MP(M) Nos.2223 to 2226 of 2024
                                         Decided on: 15.10.2024
__________________________________________________________________
1.    Cr.MP(M) No.2223 of 2024
Urvashi                                                                   ...........Petitioner
                                               Versus
State of Himachal Pradesh                       ..........Respondent
__________________________________________________________________
2.    Cr.MP(M) No.2224 of 2024
Vinod Kumar                                                               ...........Petitioner
                                               Versus
State of Himachal Pradesh                       ..........Respondent
__________________________________________________________________
3.    Cr.MP(M) No.2225 of 2024
Gaurav Sharma                                                             ...........Petitioner
                                               Versus
State of Himachal Pradesh                       ..........Respondent
__________________________________________________________________
4.    Cr.MP(M) No.2226 of 2024
Satya Devi                                                                ...........Petitioner
                                               Versus
State of Himachal Pradesh                        ..........Respondent
__________________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioner(s)     :   Mr. Sangram Singh Chandel and
                              Mr. Prikshit Rathore, Advocates, in
                              all the petitions.

For the Respondent                      :     Mr. Rajan Kahol and Mr. Vishal
                                              Panwar,   Additional Advocates
                                              General and Mr. Ravi Chauhan,
1
    Whether the reporters of the local papers may be allowed to see the judgment?
                                                     2024:HHC:9765
                               2




                              Deputy Advocate General, for the
                              respondent/State along with ASI
                              Naresh Kumar, I.O., Police Station
                              Barotiwala, in all the petitions.
__________________________________________________________________

Sandeep Sharma, Judge (oral):

Sequel to order(s) dated 03.10.2024, whereby

petitioner(s) herein were ordered to be enlarged on interim bail in

connection with FIR No.126 of 2024, dated 16.09.2024, under

Sections 376 and 120-B of IPC, registered at Police Station

Barotiwala, District Solan, Himachal Pradesh, respondent/State

has filed status report prepared on the basis of the investigation

carried out by the Investigating Agency and ASI Naresh Kumar,

I.O., Police Station Barotiwala, has come present along with

record. Record perused and returned.

2. Close scrutiny of record/status report reveals that on

16.09.2024, victim-prosecutrix (name withheld to protect the

identity), lodged a complaint at Police Station, as detailed

hereinabove, alleging therein that bail petitioner namely Gaurav

Sharma repeatedly sexually assaulted her against her wishes on

the pretext of marriage. She alleged that she belongs to Rajput

community, but yet bail petitioner Gaurav Sharma and his family

members insisted for solemnization of her marriage with bail 2024:HHC:9765

petitioner Gaurav Sharma, who hails from Brahman community.

She alleged that families of both the parties after performing their

engagement, agreed for marriage inter se her and bail petitioner

Gaurav Sharma, but before marriage could be solemnized, bail

petitioner Gaurav Sharma sexually assaulted her against her

wishes on the pretext of marriage on many occasions. She alleged

that she also became pregnant, but when such fact came to the

notice of bail petitioner Gaurav Sharma, he refused to solemnize

marriage on the pretext that she hails from Rajput community and

his parents have already performed his engagement with girl of

their community i.e. Brahman community. In the aforesaid

background, FIR as detailed hereinabove, came to be lodged

against the bail petitioners Gaurav Sharma as well as his father-

Vinod Sharma, mother-Satya Devi and sister-Urvashi, however,

before afore persons could be arrested by the Police, they have

approached this Court in the instant proceedings filed under

Section 482 of BNSS, 2023, for grant of anticipatory bail.

3. Vide order dated 03.10.2024, this Court while

enlarging the bail petitioners on interim bail, specifically directed

them to join the investigation. Since bail petitioners have already

joined the investigation and nothing remains to be recovered from 2024:HHC:9765

them, prayer has been made on their behalf for confirmation of

bail, granted vide order dated 03.10.2024.

4. While fairly acknowledging factum with regard to

joining of investigation by the petitioners, Mr. Rajan Kahol, learned

Additional Advocate General, contends that keeping in view the

gravity of offence, alleged to have been committed by petitioners,

they do not deserve any leniency, as such, prayer made on their

behalf for confirmation of bail deserves outright rejection.

5. Having heard learned counsel for the parties and

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

case at hand, both victim-prosecutrix and bail petitioner Gaurav

Sharma were major at the time of alleged commission of offence

and it also emerges from the record that factum with regard to

frequent meetings of bail petitioner Gaurav Sharma and victim-

prosecutrix was very much in the knowledge of families of both the

above named persons, who had actually agreed for solemnization

of their marriage, despite there being barrier of caste.

6. As per status report, first alleged incident of sexual

assault had happened on 13.09.2023, on which date, petitioner

had become major. After first incident on 13.09.2023, allegedly bail

petitioner Gaurav Sharma sexually assaulted victim-prosecutrix on 2024:HHC:9765

two more occasions and at no point of time, victim-prosecutrix ever

made complaint either to her parents or to the Police. Since victim-

prosecutrix was major and she of her own volition had been

meeting and talking to bail petitioner Gaurav Sharma, this Court is

not persuaded to agree with Mr. Rajan Kahol, learned Additional

Advocate General that bail petitioner, taking undue advantage of

innocence of the victim-prosecutrix, sexually assaulted her against

her wishes, rather, she of her own volition, may be on the pretext

of marriage, had been meeting bail petitioner Gaurav Sharma.

7. Otherwise also, this Court finds no allegation against

bail petitioners Vinod Kumar, Satya Devi and Urvashi, who appear

to have been implicated on account of their being parents and

sister of bail petitioner Gaurav Sharma, who allegedly sexually

assaulted the victim-prosecutrix against her wishes on the pretext

of marriage. Mere refusal on the part of the bail petitioners Vinod

Kumar, Satya Devi and Urvashi to solemnize marriage of bail

petitioner Gaurav Sharma with victim-prosecutrix may not be an

offence, as such, prayer made on their behalf for grant of bail

otherwise deserves to be considered and allowed. Though case at

hand shall be decided by the Court below in totality of evidence

collected on record by the Investigating Agency, but having taken 2024:HHC:9765

note of the aforesaid glaring aspects of the matter, this Court sees

no reason to send the bail petitioners in custody, especially when

nothing remains to be recovered from them, who otherwise have

joined the investigation pursuant to directions passed by this

Court.

8. By now it is well settled that freedom of an individual

is of utmost importance and cannot be curtailed for indefinite

period. Till the time guilt of accused is not proved, in accordance

with law, he is deemed to be innocent. In the case at hand, the

guilt, if any, of the bail petitioner is yet to be proved, in accordance

with law.

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 freedom of an

individual is of utmost importance and same cannot be curtailed

merely on the basis of suspicion. Hon'ble Apex Court has further

held that till the time guilt of accused is not proved, in accordance

with law, he is deemed to be innocent. The relevant paras No.2 to 5

of the 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 2024:HHC:9765

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-

2024:HHC:9765

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.

2024:HHC:9765

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."

2024:HHC:9765

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, order(s) dated

03.10.2024 passed by this Court, are made absolute, subject to

petitioners furnishing personal bond in the sum of Rs.2,00,000/-

with two local sureties in the like amount 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;

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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 misuse their 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.

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 these applications 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.

11:04:00 IST October 15, 2024 (Sandeep Sharma), (Rajeev Raturi) Judge