Date Of Decision: 26.9.2024 vs State Of Himachal Pradesh
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Himachal Pradesh High Court

Date Of Decision: 26.9.2024 vs State Of Himachal Pradesh on 26 September, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

                                                                            2024:HHC:9231




    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA




                                                                    .
                                                   Cr.MP(M) No.1904 of 2024





                                                 Date of Decision: 26.9.2024
    _____________________________________________________________________
    Parvej Mohammad





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





    Coram

    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting?
    For the Petitioner:
                        r     Mr. Jeevesh Sharma, Legal Aid Counsel.

    For the Respondent:       Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.
                              Verma, Additional Advocates General with Mr. Ravi
                              Chauhan, Deputy Advocate General.
    ___________________________________________________________________________
    Sandeep Sharma, J. (Oral)

Bail petitioner namely Parvej Mohammad, who is behind the

bars since 25.8.2023, has approached this court in the instant proceedings

filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023,

for grant of regular bail in case FIR No. 58/2023 dated 21.8.2023,

registered at Police Station Kihar, District Chamba, Himachal Pradesh,

under Sections 376, 506, 341, 354A, 354B, 34 IPC and Sections 4 & 8 of

POCSO Act.

2. Respondent-State has filed the status report, perusal whereof

reveals that on 21.8.2023, complainant namely Azad Mohammad, got his

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statement recorded under Section 154 CrPC, alleging therein that two

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months back, his minor daughter had gone to forest for bringing fire-wood,

where bail petitioner after having found his daughter alone, sexually

assaulted her against her wishes. He also alleged that alongwith the

aforesaid person, his other family members namely Zakir Ali, Imran and

Tayab, also gave beatings to his minor daughter and attempted to commit

rape. He alleged that on 16.8.2023, factum with respect to his daughter

having been ravished by the bail petitioner came to his knowledge when

person namely Zakir Ali disclosed the aforesaid factum to the members of

the community. He alleged that on inquiry, his minor daughter

subsequently revealed that she was sexually assaulted against her wishes

by the bail petitioner. In the aforesaid background, FIR sought to be

quashed, came to be lodged against the bail petitioner, who was arrested on

25.8.2023 and since then, he is behind bars. Since investigation in the

case is complete and nothing remains to be recovered from the bail

petitioner, he has approached this Court in the instant proceedings for

grant of regular bail on the ground of inordinate delay in conclusion of the

trial.

3. While fairly admitting factum with regard to filing of challan in

the competent court of law, Mr. B.C.Verma, learned Additional Advocate

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General, states that though nothing remains to be recovered from the bail

.

petitioner, but keeping in view the gravity of offence alleged to have been

committed by him, he does not deserve any leniency. Learned Additional

Advocate General states that bail petitioner, who is 47 years old, not only

sexually assaulted the victim-prosecutrix, who is minor, but also extended

threats to do away with her life. He states that since bail petitioner is

accused of heinous crime punishable under Section 376 of IPC, it would

not be in the interest of justice to enlarge him on bail, who in the event of

being enlarged on bail, may not only flee from justice, but may also cause

harm to the victim-prosecutrix and as such, prayer made by the bail

petitioner deserves to be rejected.

4. Having heard learned counsel for the parties and perused the

material available on record, this court finds that though alleged incident

had occurred two months prior to lodging of FIR, but there is no

explanation rendered on record qua the inordinate delay in lodging of FIR.

Moreover, as per the statement of complainant, factum with regard to

sexual assault committed upon the victim-prosecutrix came to the

knowledge of her father i.e. complainant on the disclosure made by person

namely Zakir Ali, i.e. son of the bail petitioner. It is not understood that

how and under what circumstances, son of the bail petitioner could make

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disclosure, if any, of sexual assault allegedly committed by the bail

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petitioner upon the victim-prosecutrix. Moreover, this Court finds that

complainant in his statement recorded under Section 154 CrPC, not only

leveled allegations of rape against the petitioner, rather against person

namely Zakir Ali, Imran and family members of the bail petitioner. Since

Zakir Ali, was also named in the complaint, there was otherwise no

occasion for him to disclose to the complainant that his father sexually

assaulted his daughter. It is none of the case of investigating agency that

co-accused Zakir ever made disclosure to the police that his father i.e. bail

petitioner had sexually assaulted the victim-prosecutrix on the date of the

alleged incident. Moreover, this Court finds from the record that prior to

lodging of FIR at hand, Zakir Ali had lodged FIR No. 53/2023 against

various persons including the complainant under Sections 452, 323 and 34

of IPC, alleging therein that they gave beatings to him as well as family

members and there appears to be merit in the contention of Mr. Jeevesh

Sharma, learned counsel for the petitioner that FIR lodged against the

petitioner is nothing but counterblast to the FIR lodged by his son.

Moreover, this Court finds that version put forth by the victim-prosecutrix

with regard to her having been ravished by the bail petitioner is not

supported by any medical evidence. Doctor attending upon the victim-

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prosecutrix while rendering opinion has opined that "possibility of sexual

.

assault cannot be ruled out", but he has also categorically opined that no

injury internal or external was noticed on the person of the victim-

prosecutrix He also deposed that since alleged incident is two months' old,

no definite opinion can be given. Similarly, no DNA profiling was done.

Most importantly, neither semen nor blood of the petitioner was found on

the person or clothes of the victim-prosecutrix. Moreover, this Court finds

that by far, only eight witnesses have been examined out of thirty witnesses

and considerable time is likely to be consumed in recording the statements

of remaining witnesses. In case, petitioner is left to incarcerate in jail

during the trial, it would not only amount to pre-trial conviction, but would

also violate the Article 21 of the Constitution of India.

5. Though case at hand is to be decided by the court below in

totality of evidence collected on record, but having taken note of the

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

freedom of the petitioner for an indefinite period during trial, conclusion

whereof is certainly likely to take considerable time.

6. By now, it is well settled that speedy trial is legal right of the

accused and one cannot be made to suffer indefinitely on account of delay

in trial and as such, this Court sees no reason to keep the bail petitioner

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behind the bars for indefinite period during trial. Hon'ble Apex Court in

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case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC

731, has held delay in criminal trial to be in violation of right guaranteed

to an accused under Article 21 of the Constitution of India. Relevant para of

the afore judgment reads as under:-

"11. This Court has consistently recognised the right of the accused

for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616) Accused, even in cases under TADA, have

been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of

the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC

569).

7. Recently, Hon'ble Apex Court in Javed Gulam Nabi Shaikh

Vs. State of Maharashtra and Another, Criminal Appeal No.2787 of

2024, decided on 03.07.2024, adversely commented upon the approach of

trial Court as well as High Court while considering the prayer for grant of

bail. In the aforesaid judgment, Hon'ble Supreme Court having taken note

of the fact that appellant in that case was in jail for last four years and

Court till that date was not able to frame charges, proceeded to enlarge

accused on bail in a case registered under the provisions of Unlawful

Activities (Prevention) Act, 1967. In no uncertain terms, Hon'ble Apex Court

in aforesaid judgment held that, however serious a crime may be, an

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accused has right to speedy trial, as enshrined in Article 21 of the

.

Constitution of India. Relevant Paras of aforesaid judgment are reproduced

hereinbelow, which reads as under:

"7. Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are inclined to exercise our discretion in favour of the appellant herein keeping in mind the following aspects:

(i) The appellant is in jail as an under-trial prisoner past four years;

(ii) Till this date, the trial court has not been able to even proceed to frame charge; and

(iii) As pointed out by the counsel appearing for the State as well as NIA, the

prosecution intends to examine not less than eighty witnesses.

8. Having regard to the aforesaid, we wonder by what period of time, the trial will ultimately conclude. Howsoever serious a crime may be, an accused has a right to speedy trial as enshrined under the Constitution of India.

9. Over a period of time, the trial courts and the High Courts have forgotten a very well settled principle of law that bail is not to be withheld as a punishment.

10. In the aforesaid context, we may remind the trial courts and the High Courts of what came to be observed by this Court in Gudikanti

Narasimhulu & Ors. v. Public Prosecutor, High Court reported in (1978) 1 SCC 240. We quote:

"What is often forgotten, and therefore warrants reminder, is the

object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said [R v. Rose, (1898) 18 Cox] :

"I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial."

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11. The same principle has been reiterated by this Court in Gurbaksh

.

Singh Sibba v. State of Punjab reported in (1980) 2 SCC 565 that the

object of bail is to secure the attendance of the accused at the trial, that 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 and that it is indisputable that bail is not to be withheld as a punishment.

12. Long back, in Hussainara Khatoon v. Home Secy., State of Bihar reported in (1980) 1 SCC 81, this court had declared that the right to

speedy trial of offenders facing criminal charges is "implicit in the broad sweep and content of Article 21 as interpreted by this Court". Remarking that a valid procedure under Article 21 is one which contains a procedure that is "reasonable, fair and just" it was held that:

r "Now obviously procedure prescribed by law for depriving a

person of liberty cannot be "reasonable, fair or just"unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as "reasonable, fair or just" and it

would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the

fundamental right to life and liberty enshrined in Article21. The question which would, however, arise is as to what would be the

consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment

as a result of along delayed trial in violation of his fundamental right under Article 21."

13. The aforesaid observations have resonated, time and again, in several judgments, such as Kadra Pahadiya & Ors. v. State of Bihar reported in (1981) 3 SCC 671 and Abdul Rehman Antulay v. R.S. Nayak reported in (1992) 1 SCC 225. In the latter the court re-emphasized the right to speedy trial, and further held that an accused, facing prolonged trial, has no option:

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"The State or complainant prosecutes him. It is, thus, the obligation

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of the State or the complainant, as the case maybe, to proceed with

the case with reasonable promptitude. Particularly, in this country, where the large majority of accused come from poorer and weaker sections of the society, not versed in the ways of law, where they do

not often get competent legal advice, the application of the said rule is wholly inadvisable. Of course, in a given case, if an accused demands speedy trial and yet he is not given one,may be a relevant factor in his favour. But we cannot disentitle an accused from

complaining of infringement of his right to speedy trial on the ground that he did not ask for or insist upon a speedy trial."

14. In Mohd Muslim @ Hussain v. State (NCT of Delhi) reported in 2023INSC 311, this Court observed as under:

"21. Before parting, it would be important to reflect that laws which

impose stringent conditions for grant of bail,may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling.

According to the Union Home Ministry's response to Parliament, the National Crime Records Bureau had recorded that as on 31stDecember 2021, over 5,54,034 prisoners were lodged in jails

against total capacity of 4,25,069 lakhs in the country. Of these 122,852 were convicts; the rest 4,27,165 were undertrials.

22. The danger of unjust imprisonment, is that inmates are at risk of "prisonisation" a term described by the KeralaHigh Court in A

Convict Prisoner v. State reported in 1993Cri LJ 3242, as "a radical transformation" whereby the prisoner:

"loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. Psychological problems result from loss of freedom,status, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self-perception changes."

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23. There is a further danger of the prisoner turning to crime, "as

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crime not only turns admirable, but the more professional the

crime, more honour is paid to the criminal"(also see Donald Clemmer's 'The Prison Community' published in 1940). Incarceration has further deleterious effects - where the accused

belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore,have to be sensitive to these aspects (because in the event

of an acquittal, the loss to the accused is irreparable), and ensure that trials - especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily."

15. The requirement of law as being envisaged under Section 19 of the

National Investigation Agency Act, 2008 (hereinafter being referred to as

"the 2008 Act") mandates that the trial under the Act of any offence by a Special Court shall be held on day-to-day basis on all working days and have precedence over the trial of any other case and Special Courts are to be designated for such an offence by the Central Government in

consultation with the Chief Justice of the High Court as contemplated under Section 11 of the 2008.

16. A three-Judge Bench of this Court in Union of India v. K.A. Najeeb

reported in (2021) 3 SCC 713] had an occasion to consider the long incarceration and at the same time the effect of Section 43-D(5) of the UAP

Act and observed as under : (SCC p. 722, para 17) "17. It is thus clear to us that the presence of statutory restrictions

like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed,both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings,the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed

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within a reasonable time and the period of incarceration already

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undergone has exceeded a substantial part of the prescribed

sentence. Such an approach would safe-guard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of

constitutional right to speedy trial."

17. In the recent decision, Satender Kumar Antil v. Central Bureau of Investigation reported in (2022) 10 SCC 51, prolonged incarceration and inordinate delay engaged the attention of the court, which considered

the correct approach towards bail, with respect to several enactments, including Section 37 NDPS Act. The court expressed the opinion that Section 436A (which requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified periods) of the Criminal

Procedure Code, 1973would apply:

"We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section

436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the

way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought

to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging

the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code."

18. Criminals are not born out but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents,juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is

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responsible for making the offender commit the crime. Those factors may be

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social and economic, maybe, the result of value erosion or parental neglect;

may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations.

19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not

oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime." r

8. Repeatedly, it has been held that one is deemed to be innocent

till the time guilt, if any, 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 material on record.

Apprehension expressed by the learned Additional Advocate General that in

the event of petitioner's being enlarged on bail, he may flee from justice,

can be best met by putting the bail petitioner to stringent conditions as has

been fairly stated by the learned counsel for the petitioner.

9. 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

13 2024:HHC:9231

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.

10. Hon'ble Apex Court in Criminal Appeal No. 227/2018,

Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has

held that freedom of an individual cannot be curtailed for indefinite period,

especially when his/her guilt is yet to be proved. It has been further held by

the Hon'ble Apex Court in the aforesaid judgment that a person is believed

to be innocent until found guilty.

11. Hon'ble Apex Court in Sanjay Chandra versus Central Bureau

of Investigation (2012)1 Supreme Court Cases 49 has held that gravity

alone cannot be a decisive ground to deny bail, rather competing factors are

required to be balanced by the court while exercising its discretion. It has

been repeatedly held by the Hon'ble Apex Court that 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.

12. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC

218, Hon'ble Apex Court has held that the object of the bail is to secure the

attendance of the accused in the trial and the proper test to be applied in

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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

also, normal rule is of bail and not jail. Apart from above, 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.

13. The Apex Court in Prasanta Kumar Sarkar versus Ashis

Chatterjee and another (2010) 14 SCC 496, has laid down various

principles to be kept in mind, while deciding petition for bail viz. prima facie

case, nature and gravity of accusation, punishment involved, apprehension

of repetition of offence and witnesses being influenced.

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

the Hon'ble Apex Court, bail petitioner has carved out a case for grant of

bail. Accordingly, the petition is allowed and the petitioner is ordered to be

enlarged on bail in aforesaid FIR, subject to his 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) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every

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date of hearing and if prevented by any reason to do so, seek

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exemption from appearance by filing appropriate application;

(b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

(c) He 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) He shall not leave the territory of India without the prior permission of the Court.

15. It is clarified that if the petitioner misuses the liberty or violates

any of the conditions imposed upon him, 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 stands accordingly disposed

of.

17. The bail petitioner is permitted to produce copy of the 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.

    September 26, 2024                                             (Sandeep Sharma),
          (manjit)                                                     Judge