CRMPM/1835/2020 of KISHAN KUMAR SHARMA ALIAS KRISHAN SHARMA Vs STATE OF HP on 31 December 2020

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.1835 of 2020 Decided on: 31.12.2020

___________________________________________________________ Kishan Kumar ………..Petitioner Versus State of Himachal Pradesh ……….Respondent ___________________________________________________________

Coram:

Hon’ble Mr. Justice Sandeep Sharma, Judge.Whether approved for reporting? [1]Yes.

For the Petitioner: Mr. Jeevan Kumar, Advocate.For the Respondent: Mr. Sudhir Bhatnagar, AdditionalAdvocate General.

___________________________________________________________

Sandeep Sharma, Judge (oral):

Through Video Conferencing

Bail petitioner, namely Kishan Kumar, who is behind the bars since October, 2019, has approached this Court in the instant proceedingsfiled under Section 439 Cr.PC, for grant of regular bail in FIR No.343/2018, dated 06.12.2018 under Sections 363, 366, 342, 376, 506 ofIPC and under Section 4 of POCSO, Act registered at Police StationPoanta Sahib, District Sirmaur, Himachal Pradesh.

2. Status report made available to this Court in terms of ordersdated 13.10.2020 and 24.12.2020, reveals that on 6.12.2018, Sh. SarbatHussain, who happened to be father of victim/ prosecutrix (name withheld)lodged a complaint at Police Station Poanta Sahib, District Sirmaur that1 Whether the reporters of the local papers may be allowed to see the judgment?

bail petitioner made her minor daughter, whose date of birth is01.01.2002, elope with him three months back on the pretext of marriage.He also alleged that a sum of Rs. 3 lac which he had collected with greatdifficulty, has also been taken away by the bail petitioner. He alleged thatsubsequently, it came to notice of his daughter that bail petitioner ismarried person, but despite that he sexually assaulted her against herwishes on the pretext of marriage and as such appropriate action inaccordance with law be taken against him. Complainant disclosed to thepolice that since bail petitioner was given beatings at his native place inthe State of Bihar by his family members for bringing his minor daughterduring subsistence of his early marriage, bail petitioner firstly brought herdaughter to Delhi and thereafter to Dehradun. Complainant alleged that inDehradun, bail petitioner besides sexually assaulting his daughter alsomade her to work on construction site. Since, wife of bail petitionersubsequently came to Dehradun, daughter of complainant called hermother and brother to Dehradun and they brought her to Poanta Sahib.On the basis of the aforesaid complaint, police lodged FIR detailedhereinabove against the bail petitioner on 6.12.2018, but allegedly, bailpetitioner remained absconded till 14.10.2019, when he was arrested inBihar and since then, he is behind the bars. Challan stands filed in thecompetent court of law, but till date, charge has not been framed and as such, bail petitioner has approached this Court in the instant proceedingsfor grant of regular bail.

3. Mr. Sudhir Bhatnagar, learned Additional Advocate Generalwhile admitting the factum with regard to filing of challan in the competentcourt of law, contends that though nothing remains to be recovered fromthe bail petitioner, but keeping in view the gravity of the office alleged tohave been committed by him coupled with the fact that he remainedabsconded for almost one year, prayer made on his behalf for grant ofbail, deserves outright rejection. Mr. Bhatnagar, while making this Court toperuse the status report, states that though there is overwhelmingevidence adduced on record suggestive of the fact that bail petitionertaking undue advantage of minority and innocence of victim/prosecutrixnot only sexually assaulted against her wishes, rather also extorted sumof Rs. 3 lac earned by the complainant with great difficulty, but evenotherwise consent, if any, is immaterial on account of the age of theprosecutrix. Lastly, Mr. Bhatnagar, contends that since bail petitioner hailsfrom State of Bihar and he remained absconded in past, there is everylikelihood of his fleeing from justice in the event of his being enlarged onbail and as such, prayer made on his behalf for grant of bail may berejected.

4. Having heard learned counsel for the parties and perusedthe material available on record, especially, statement of victim recordedunder Section 164 Cr.P.C., this Court finds that at the time of allegedincident, victim/prosecutrix was 17 years old and she had prioracquaintance with the bail petitioner. Perusal of statement ofvictim/prosecutrix recorded under Section 164 Cr.P.C., reveals that for thefirst time, victim/prosecutrix met bail petitioner somewhere in the month ofJune, 2018 and since then they had been frequently meeting each other.As per own statement of victim/prosecutrix, bail petitioner provided herone mobile phone. For first time, bail petitioner, allegedly, made physicalrelationship with victim/prosecutrix at Paonta Sahib and thereafter,victim/prosecutrix of her own on the askance of bail petitioner agreed toelope with him. Statement of victim/prosecutrix recorded under Section164 Cr.P.C, reveals that she after having taken Rs. 3 lac from her housewent to Bihar along with bail petitioner where factum with regard to earliermarriage of bail petitioner came to her knowledge. Victim/prosecutrix whowas 17 years old at the time of alleged incident despite having discoveredfactum with regard to earlier marriage of bail petitioner, made no effort toeither lodge report at police station nor she made an effort to contact herparents at Paonta Sahib, rather continued to live with bail petitioner.Record reveals that the victim/prosecutrix went to Delhi along with bail

petitioner and thereafter came to Dehradun and started doing labour work.As per statement of victim/prosecutrix, she on 29[th] November, 2018,managed to inform her brother and mother through telephone with regardto her location, but it is not understood that why prior to 29[th] November,2018, victim/prosecutrix despite there being many opportunities availableto her failed to disclose factum with regard to her alleged abduction andkidnapping by the bail petitioner to her parents, rather she kept ontravelling with bail petitioner, first to Bihar and then Delhi and Dehradun. Itis only after the arrival of wife of bail petitioner at Dehradun,victim/prosecutrix informed her parents at Paonta Sahib on 29[th]November, 2018. Moreover, this Court finds that victim/prosecutrix whohappened to be daughter of complainant had gone missing somewhere inJune, 2018, but there is no explanation that why no missing report or FIRwas filed by complainant for more than six months. In the case at hand,FIR came to be lodged on 06.12.2018 and as such, this Court has reasonto presume/infer that complainant had definite knowledge with regard towhereabouts of his daughter, otherwise he being father would havedefinitely lodged atleast missing report in the police station concerned.Though, age of victim/prosecutrix, at the relevant time was 17 years, buthaving noticed her conduct which duly reflects in her statements given tothe police as well as JMIC, under Section 164 Cr.PC, this Court has no hesitation to conclude that victim/prosecutrix was not incapable ofunderstanding the consequences of her joining the company of bailpetitioner with whom she of her own volition agreed to elope. Though,aforesaid aspect of the matter are to be considered and decided by thecourt below in totality of evidence collected on record by the InvestigatingAgency, but having taken note of the aforesaid aspect of the matter, thisCourt sees no reason to let the bail petitioner incarcerate in jail for anindefinite period during trial, especially, when he has already suffered formore than one year. True it is that bail petitioner absconded for one yearafter registration of case, but now since, he is behind the bars for almostone year and till date, charge has not been framed, there appears to beno justification to curtail the freedom of the bail petitioner for indefiniteperiod during the trial. More than 2 years have passed after registration ofFIR, but till date, charge has not been framed and there is every likelihoodof further delay in conclusion of trial on account of spread of Covid-19pandemic. Though, in terms of instructions issued by this Court onadministrative side, lower Courts have resumed normal working and alsostarted recording the evidence, but in limited number (s) and as such, itcan be safely presumed that considerable time would be consumed in theconclusion of the trial of the petitioner and as such, there appears to be nojustification to let the bail petitioner incarcerate in jail for an indefinite period during the trial, especially, when he has already suffered for morethan one year. The Hon’ble Apex Court as well as this Court in catena ofcases have repeatedly observed/held that one is deemed to be innocenttill the time his/her guilt is not proved in accordance with law.Apprehension expressed by learned Additional Advocate General that inthe event of bail petitioner being enlarged on bail, he may flee fromjustice, can be best met by putting him to stringent conditions.

5. Needless to say, object of the bail is to secure theattendance of the accused in the trial and the proper test to be applied inthe solution of the question whether bail should be granted or refused iswhether 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 ofaccusations, nature of evidence in support thereof, severity of thepunishment which conviction will entail, character of the accused,circumstances which are peculiar to the accused involved in that crime.

6. The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; held asunder:- “ The object of bail is to secure the appearanceof the accused person at his trial by reasonableamount of bail. The object of bail is neither punitive nor preventative. Deprivation of libertymust be considered a punishment, unless it canbe required to ensure that an accused person willstand his trial when called upon. The Courts owemore than verbal respect to the principle thatpunishment begins after conviction, and thatevery man is deemed to be innocent until dulytried and duly found guilty. Detention in custodypending completion of trial could be a cause ofgreat hardship. From time to time, necessitydemands that some unconvicted persons shouldbe held in custody pending trial to secure theirattendance at the trial but in such cases,“necessity” is the operative test. In India , it wouldbe quite contrary to the concept of personalliberty enshrined in the Constitution that anyperson should be punished in respect of anymatter, upon which, he has not been convicted orthat in any circumstances, he should be deprivedof his liberty upon only the belief that he willtamper with the witnesses if left at liberty, save inthe most extraordinary circumstances. Apart fromthe question of prevention being the object ofrefusal of bail, one must not lose sight of the factthat any imprisonment before conviction has asubstantial punitive content and it would beimproper for any court to refuse bail as a mark ofdisapproval of former conduct whether theaccused has been convicted for it or not or torefuse bail to an unconvicted person for thepropose of giving him a taste of imprisonment asa lesson.”

7. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5)SCC 218, The Hon’ble Apex Court has held as under:- “ This Court in Sanjay Chandra v. CBI, alsoinvolving an economic offence of formidablemagnitude, while dealing with the issue of grantof bail, had observed that deprivation of liberty

must be considered a punishment unless it isrequired to ensure that an accused person wouldstand his trial when called upon and that thecourts owe more than verbal respect to theprinciple that punishment begins after convictionand that every man is deemed to be innocent untilduly tried and found guilty. It was underlined thatthe object of bail is neither punitive or preventive.This Court sounded a caveat that anyimprisonment before conviction has a substantialpunitive content and it would be improper for anycourt to refuse bail as a mark of disapproval of aconduct whether an accused has been convictedfor it or not or to refuse bail to an unconvictedperson for the purpose of giving him to taste ofimprisonment as a lesson. It was enunciated thatsince the jurisdiction to grant bail to an accusedpending trial or in appeal against conviction isdiscretionary in nature, it has to be exercised withcare ad caution by balancing the valuable right ofliberty of an individual and the interest of thesociety in general. It was elucidated that theseriousness of the charge, is no doubt one of therelevant considerations while examining theapplication of bail but it was not only the test orthe factor and the grant or denial of suchprivilege, is regulated to a large extent by thefacts and circumstances of each particular case.That detention in custody of under trial prisonersfor an indefinite period would amount to violationof Article 21 of the Constitution was highlighted.”

8. The Hon’ble Apex Court in Prasanta Kumar Sarkar v.

Ashis Chatterjee and Another (2010) 14 SCC 496, has laid down thefollowing principles to be kept in mind, while deciding petition for bail:

(i) whether there is any prima facie orreasonable ground to believe that the accusedhad committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event ofconviction; conviction;

(iv) danger of the accused absconding or fleeing,if released on bail; if released on bail;

(v) character, behaviour, means, position andstanding of the accused; standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnessesbeing influenced; and being influenced; and

(viii) danger, of course, of justice being thwarted bygrant of bail. grant of bail.

9. Reliance is placed on judgment passed by the Hon’ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017)

2 SCC 731, relevant para whereof has been reproduced herein below:- “11. This Court has consistently recognised theright of the accused for a speedy trial. Delay incriminal trial has been held to be in violation ofthe right guaranteed to an accused underArticle21of the Constitution of India. (See: SupremeCourtLegal Aid Committee v. Union of India,(1994) 6 SCC 731;Shaheen Welfare Assn. v. Unionof India, (1996) 2 SCC 616) Accused, even incases under TADA, have been released on bail onthe ground that they have been in jail for a longperiod of time and there was no likelihood of thecompletion 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).

10. 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 criminaljurisprudence is the presumption of innocence, meaning thereby that aperson is believed to be innocent until found guilty. Hon’ble Apex Courtfurther held that while considering prayer for grant of bail, it is important toascertain whether the accused was participating in the investigations tothe satisfaction of the investigating officer and was not absconding or notappearing when required by the investigating officer. Hon’ble Apex Courtfurther held that if an accused is not hiding from the investigating officer oris hiding due to some genuine and expressed fear of being victimized, itwould be a factor that a judge would need to consider in an appropriatecase. The relevant paras of the aforesaid judgment are reproduced asunder:

“2. A fundamental postulate of criminaljurisprudence is the presumption of innocence,meaning thereby that a person is believed to beinnocent until found guilty. However, there areinstances in our criminal law where a reverseonus has been placed on an accused with regardto some specific offences but that is anothermatter and does not detract from the fundamentalpostulate in respect of other offences. Yet anotherimportant facet of our criminal jurisprudence isthat the grant of bail is the general rule andputting a person in jail or in a prison or in acorrection home (whichever expression one maywish to use) is an exception. Unfortunately, someof these basic principles appear to have been lostsight of with the result that more and morepersons are being incarcerated and for longer periods. This does not do any good to ourcriminal jurisprudence or to our society.3. There is no doubt that the grant or denial of bailis entirely the discretion of the judge consideringa case but even so, the exercise of judicialdiscretion has been circumscribed by a largenumber of decisions rendered by this Court andby every High Court in the country. Yet,occasionally there is a necessity to introspectwhether denying bail to an accused person is theright thing to do on the facts and in thecircumstances of a case.

4. While so introspecting, among the factors that need to be considered is whether the accusedwas arrested during investigations when thatperson perhaps has the best opportunity totamper with the evidence or influence witnesses.If the investigating officer does not find itnecessary to arrest an accused person duringinvestigations, a strong case should be made outfor placing that person in judicial custody after acharge sheet is filed. Similarly, it is important toascertain whether the accused was participatingin the investigations to the satisfaction of theinvestigating officer and was not absconding ornot appearing when required by the investigatingofficer. Surely, if an accused is not hiding fromthe investigating officer or is hiding due to somegenuine and expressed fear of being victimised, itwould be a factor that a judge would need toconsider in an appropriate case. It is alsonecessary for the judge to consider whether theaccused is a first-time offender or has beenaccused of other offences and if so, the nature ofsuch offences and his or her general conduct.The poverty or the deemed indigent status of anaccused is also an extremely important factor andeven Parliament has taken notice of it byincorporating an Explanation toSection 436of theCode of Criminal Procedure, 1973. An equally softapproach to incarceration has been taken by

Conclusion

Parliament by inserting Section 436A intheCodeof Criminal Procedure, 1973.5. To put it shortly, a humane attitude is requiredto be adopted by a judge, while dealing with anapplication for remanding a suspect or anaccused person to police custody or judicialcustody. There are several reasons for thisincluding maintaining the dignity of an accusedperson, howsoever poor that person might be, therequirements of Article 21of the Constitution andthe fact that there is enormous overcrowding inprisons, leading to social and other problems asnoticed by this Court in In Re-Inhuman Conditionsin 1382 Prisons.

11. In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, petitioner has carved out a case for grant ofbail, accordingly, the petition is allowed and the petitioner is ordered to beenlarged on bail in aforesaid FIR, subject to his furnishing personal bondin the sum of Rs. 1,00,000/- with one local surety in the like amount to thesatisfaction of concerned Chief Judicial Magistrate/trial Court, withfollowing conditions:

(a) He shall make himself available for the purpose ofinterrogation, if so required and regularly attend thetrial Court on each and every date of hearing and ifprevented by any reason to do so, seek exemptionfrom appearance by filing appropriate application;interrogation, if so required and regularly attend thetrial Court on each and every date of hearing and ifprevented by any reason to do so, seek exemptionfrom appearance by filing appropriate application;(b)He shall not tamper with the prosecution evidencenor hamper the investigation of the case in anymanner whatsoever;nor hamper the investigation of the case in anymanner whatsoever;

(c) He shall not make any inducement, threat orpromises to any person acquainted with the facts ofthe case so as to dissuade him/her from disclosingsuch facts to the Court or the Police Officer; andpromises to any person acquainted with the facts ofthe case so as to dissuade him/her from disclosingsuch facts to the Court or the Police Officer; and (d)He shall not leave the territory of India without theprior permission of the Court. (e)He shall handover passport to the InvestigatingAgency.

12. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agencyshall be free to move this Court for cancellation of the bail.

13. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined tothe disposal of this application alone. The petition stands accordinglydisposed of.

Copy dasti.

(Sandeep Sharma)Judge

31[st] December, 2020(reena)