Sandeep Sharma DECISION
Sandeep Sharma, J.
1. Sequel to order dated 15.10.2019, whereby bail petitioners were ordered to be enlarged on interim bail in the event of their arrest in case FIR No. 42/2019, under Sections 376, 342, 506 read with Section 34 of IPC, registered at Mahila Police Station, Mandi, District Mandi, H.P., SI Pawan Kumar, has come present alongwith records. Mr. Sanjeev Sood, learned Additional Advocate General, has also placed on record status report prepared on the basis of investigation carried out by the Investigating Agency.
2. Close scrutiny of record/status report reveals that on 4.10.2019, victim-prosecutrix (name withheld) lodged a complaint in the aforesaid police station alleging therein that on 28.9.2019, bail petitioner namely Mohammad Ali called her at a place called Mandi in connection with financing of vehicle. She alleged that at 4:00 pm, she reached Mandi, but above named Mohammad Ali arrived at Mandi bus stand at 8:00 pm, whereafter he informed that today work could not be done. She further alleged that thereafter, the bail petitioner took her along on the pretext that he has to purchase certain things and then, he would drop her at Kullu. She alleged that few kilo meters ahead of Mandi, one unknown person (i.e. co-accused Lai Hussain) also sat in the vehicle being driven by the Mohammad Ali and thereafter, they took her to some link road from the main road and when she objected, both the bail petitioners extended threats to her. Victim-prosecutrix further alleged that both the bail petitioners thereafter sexually assaulted her against her wishes in the vehicle in question. She also alleged that friend of the bail petitioner also bit on her cheek and thereafter, they both went to Kullu dropping her at a lonely place. She alleged that since there was injury on her cheek, she could not come out of her house for so many days. On the basis of aforesaid complaint, formal FIR as detailed herein above, came to be lodged against both the bail petitioners on 4.10.2019, under the aforesaid provisions of law at PS Mandi i.e. after seven days of the alleged incident.
3. Mr. Virender Chauhan, learned Senior Counsel representing the bail petitioners while praying for bail on behalf of the bail petitioners, contended that bare statements of victim-prosecutrix nowhere reveal case, if any, under Sections 376D against the bail petitioners and as such, they both deserves to be enlarged on bail. Learned Senior counsel further contended that bare perusal of statements made by the victim-prosecutrix, itself suggests that she of her own volition and without there being any external pressure, joined the company of the bail petitioners and thereafter, falsely implicated them. While inviting attention of this Court to FIR No. 0033 dated 24.3.2017, registered at PS Bhuntar, District Kullu, H.P., Mr. Chauhan, made an attempt to persuade this Court to agree with his submission that conduct of the victim-prosecutrix is not above the board and she is in habit of falsely implicating the people and as such, prayer made for grant of bail on behalf of the bail petitioners, who are 52 and 48 years, respectively, deserves to be accepted. Lastly, Mr. Chauhan, contended that investigation in the case is complete and nothing remains to be recovered from the bail petitioners and as such, no fruitful purpose would be served in case bail petitioners are kept behind bars for an indefinite period during trial.
4. Mr. Sanjeev Sood, learned Additional Advocate General, on the instructions of Investigating Officer fairly stated that though both the petitioners have joined investigation pursuant to directions contained in order dated 15.10.2019, but keeping in view the gravity of offence alleged to have been committed by them, they do not deserve to be enlarged on bail, rather needs to be dealt with severely. Mr. Sood, further contended that there is ample evidence available on record that on the date of alleged incident, both the bail petitioners taking undue advantage of innocence of the victim-prosecutrix not only sexually assaulted her, rather gave beatings and as such, bail petitions having been filed by the petitioners may be rejected at this stage.
5. Having heard learned counsel for the parties and perused material available on record, especially statements of victim-prosecutrix recorded under Sections 161 and 164 Cr.P.C., this Court finds that victim-prosecutrix of her own volition joined the company of the bail petitioners, whereafter she was allegedly sexually assaulted against her wishes. Medical officer, who had examined the victim-prosecutrix after alleged incident, though has opined that possibility of sexual assault cannot be ruled out but if MLC adduced on record is read in its entirety it nowhere suggest that victim-prosecutrix suffered any internal or external injury save and except one injury on her cheek. MLC adduced on record also nowhere suggests signs, if any, of struggle during the alleged incident. Leaving everything aside, there is no plausible explanation rendered on record qua the delay in lodging the FIR, which admittedly came to be lodged after a period of seven days of the alleged incident. Explanation rendered on record by the victim-prosecutrix on account of delay is not at all plausible because mere infliction of injury on the cheek of the victim-prosecutrix could not be a ground for her to not to lodge report for seven days, rather lodging of report at the first instance would have helped her establishing case against the bail petitioners. Allegations contained in FIR No. 0033 (supra) persuades this Court to agree with submissions made by the learned Senior counsel that victim-prosecutrix is in habit of falsely implicating the people. Moreover, having noticed age of victim-prosecutrix, this Court is convinced and satisfied that she is/was fully capable of understanding the consequences of her being in the company of the bail petitioners, with whom admittedly, she of her own volition went in a vehicle. Though aforesaid aspects of the matter are to be considered and decided by the court below on the basis of totality of evidence collected on record by the prosecution, but at this stage, this Court having perused material available on record, sees no reason to let the bail petitioners incarcerate in jail for an indefinite period.
6. Repeatedly, it has been held by the Hon'ble Apex Court as well as this Court that till the time, guilt of individual is not proved in accordance with law, he/she is deemed to be innocent and in the case at hand also, guilt, if any, of the bail petitioners is yet to be proved in accordance with law by the prosecution by leading cogent and convincing evidence. No material has been placed on record suggestive of the fact that in the event of bail petitioners being enlarged on bail, they may temper with evidence or flee from justice. Moreover, bail petitioners being local residents of the area shall always be available for investigation/trial as and when called as has been fairly stated by the learned counsel or the petitioners.
7. 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.
8. 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."
9. 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."
10. 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, behavior, 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.
11. 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: Paramiit Singh v. State (NCT of Delhi), MANU/SC/1136/1999 : (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569).
12. Recently, 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 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.
13. Consequently, in view of the above, order(s) dated 15.10.2019, passed by this Court, is made absolute, subject to the 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.
e. They shall hand over their passports, if any, to the Investigating Agency.
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 cases and shall remain confined to the disposal of these applications alone.
The bail petitions stand disposed of accordingly.
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