Sandeep Sharma JUDGMENT
Sandeep Sharma, J.
1. Apprehending his arrest, bail petitioner namely Gulshan Mohammad, has approached this Court by way of instant petition for grant of pre-arrest bail in FIR No. 34/18, dated 18.2.2018, registered at PS Amb, District Una, H.P., under Section 376 of IPC,
2. Sequel to order dated 6.3.2018, whereby bail petitioner has been ordered to be enlarged on bail in the event of her arrest, ASI Raj Kumar, P.S. Amb, District Una, H.P., has come present along with records. Record perused and returned. Mr. Dinesh Thakur, learned Additional Advocate General, has also placed on record status report prepared on the basis of investigation carried out by the Investigating Agency, perusal whereof suggests that aforesaid FIR came to be lodged against the bail petitioner at the behest of the complainant-prosecutrix, who alleged that after the death of her husband in the year, 2007, bail petitioner approached her with a proposal of marriage, as his wife had also expired. Bail petitioner assured the complainant that he would look after her children after marriage and as such, complainant believing the bail petitioner to be good person, developed physical relations with him. Subsequently, in the year, 2010, accused representing himself to be Hindu, solemnized marriage with the complainant at Village Indora.
3. Complainant further alleged that she being a simpleton lady, never moved out of the house of the bail petitioner without his permission, but in the year, 2016, complainant came across a document, which revealed that bail petitioner is not a Hindu, rather he is a Mohammedan. Complainant further alleged that bail petitioner also changed name of her minor son from Anmol to Anmol Mohd. When complainant confronted the bail petitioner with the aforesaid fact, he gave her beatings and started hurling abuses at her. Recently, through multimedia and newspaper, it came to the notice of the complainant that the accused made a public statement that the complainant is not the wife of the bail petitioner-accused. In the aforesaid background, matter came to be reported to the police station Amb, against the bail petitioner under Section 376 IPC.
4. Mr. Digvijay Singh, Advocate, representing the petitioner while making reference to the record/status report vehemently contended that no case much less under Section 376 IPC, is made out against the bail petitioner and as such, he deserves to be enlarged on bail. While inviting attention of this court to the complaint lodged by the complainant-prosecutrix, Mr. Digvijay contended that there is no specific allegation in the complaint that she was compelled by the bail petitioner to solemnize marriage and thereafter, to develop physical relations with the complainant, rather she of her own volition stayed with the bail petitioner for more than six years and during this period, she never lodged any complaint either to the police station or gram panchayat. Lastly, Mr. Digvijay, contended that investigation in the case is almost complete and nothing is required to be recovered from the bail petitioner at this stage and as such, there is no occasion for the custodial interrogation of the bail petitioner.
5. Mr. Dinesh Thakur, learned Additional Advocate General, on instructions from Investigating Officer, who is present in Court, fairly admitted that sequel to order dated 6.3.2018, petitioner has joined the investigation and is fully cooperating with the investigating agency. Mr. Thakur, further contended that at this stage, nothing is required to be recovered from the bail petitioner, but taking note of the gravity of the offence allegedly committed by the bail petitioner, he does not deserve to be enlarged on bail, rather needs to be dealt with very severely. Lastly Mr. Thakur, contended that in the investigation, it has come to the fore that the bail petitioner taking undue advantage of the innocence of the complainant solemnized marriage with her representing himself to be Hindu. Lastly, Mr. Thakur, contended that bail petitioner belongs to the State of Punjab and in the event of his being enlarged on bail, it may be difficult for the police to secure his presence during investigation/trial and as such, present petition may be dismissed.
6. Having heard learned counsel for the parties and gone through the record, this Court finds considerable force in the argument of Mr. Digvijay Singh Advocate, that there is no evidence available at this stage suggestive of the fact that the bail petitioner taking undue advantage of innocence of the complainant, compelled her to solemnize the marriage with him, rather investigation reveals that in the year, 2007, after the death of husband of the complainant, bail petitioner approached her for marriage. Similarly, there is no allegation in the complaint that between year, 2007-2010, bail petitioner sexually assaulted the complainant against her wishes/volition, rather complainant, who at that relevant time was mother of two children herself decided to solemnize marriage with the bail petitioner. Otherwise also there is no explanation, if any, available on record with regard to the complainant's silence for almost six years between year, 2010 to 2016. Apart from above, if aforesaid allegation leveled by the complainant is presumed to be correct that bail petitioner mis-represented himself to be Hindu, there is no explanation that why bail petitioner kept mum for two years, after discovering the aforesaid fact in the year, 2016. Though aforesaid aspects of the matter are required to be considered and decided by the court below on the basis of material adduced on record by the prosecution, but this Court after having seen record sees no reason for custodial interrogation of the bail petitioner, who has otherwise made himself available for investigation, as has been fairly admitted by the learned Additional Advocate General.
7. As far as another apprehension expressed by learned Additional Advocate General with regard to petitioner's absconding from trial in the event of his being enlarged on bail is concerned, same can be met by putting the bail petitioner to stringent conditions as has been fairly submitted by the learned counsel representing the bail 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. Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh v. 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 the accused is not proved in accordance with law, he is deemed to be innocent. 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 Re-Inhuman Conditions in 1382 Prisons.
10. The Hon'ble Apex Court in Sanjay Chandra v. Central Bureau of Investigation MANU/SC/1375/2011 : (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."
11. In Manoranjana Sinh Alias Gupta v. CBI MANU/SC/0128/2017 : 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."
12. The Hon'ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another MANU/SC/0916/2010 : (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. Reliance is placed on judgment passed by the Hon'ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, MANU/SC/0100/2017 : (2017) 2 SCC 731, relevant para whereof has been reproduced herein below:-
"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, MANU/SC/0877/1994 : (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of India, MANU/SC/0768/1996 : (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), MANU/SC/1136/1999 : (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569).
14. Consequently, in view of the above, order dated 6.3.2018 passed by this Court, is made absolute, subject to the 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 date of hearing and if prevented by any reason to do so, seek 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 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 his 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 bail petition stands disposed of accordingly.
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