1. Bail petitioner namely, Ravi Kumar, who is behind the bars since 15.5.2022, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No. 24/2022, dated 12.05.2022 under Sections 376 and 506 of IPC, registered at Woman police Station, Baddi, District Solan, H.P.
2. Pursuant to order dated 13.06.2022, respondent-State has filed the status report and ASI Gian Chand has also come present alongwith the record. Record perused and returned.
3. Close scrutiny of the record/status report reveals that on 12.05.2022, victim/prosecutrix, aged 29 years (name withheld to protect her identity), lodged a complaint at woman police Station, Baddi District Solan, H.P., alleging therein that she had come in the contact of bail petitioner on 14.02.2020 through social media, whereafter bail petitioner repeatedly requested her to meet him in Pinjore Garden, Panchkulla. Victim/prosecutrix alleged that on 18.02.2020, on the request of the bail petitioner, she went to Pinjore garden and there bail petitioner proposed her for marriage. She alleged that bail petitioner requested her to meet his mother, but she refused. She alleged that after some time bail petitioner requested her to meet her mother and as such, she made him to meet Smt. Sharda Devi, who had adopted her. She alleged that bail petitioner made proposal of marriage with her to her mother and her mother, who is a cancer patient, agreed for her marriage. She alleged that while in connection with her employment, she used to live at Barotiwala on 14.04.2020 bail petitioner came to her room and sexually assaulted her against her wishes on the pretext of marriage. However, on 16.11.2021 after the death of mother of victim/prosecutrix, bail petitioner and his family members started making excuses. She alleged that bail petitioner stopped talking with her, whereas her parents blocked her number and now she has come to know from somebody that bail petitioner is likely to marry somebody else. In the aforesaid background, FIR as detailed hereinabove, came to be lodged against the present bail petitioner and since 15.05.2022, he is behind the 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.
4. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly admitting factum with regard to filing of the challan in the competent court of law, contends 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 and as such, prayer made on his behalf for grant of bail may be rejected outrightly. Learned Additional Advocate General further submits that since report of RFSL is still awaited and as such, it may not be in the interest of justice to enlarge bail petitioner on bail, who in the event of being enlarged on bail may not only flee from justice, but can also tamper with the prosecution evidence. While making this Court to peruse the record of investigation, Mr. Bhatnagar, states that there is overwhelming evidence adduced on record suggestive of the fact that the bail petitioner taking undue advantage of innocence of the victim/ prosecutrix had been sexually assaulting her for so many years on the pretext of marriage and as such, it cannot be said that he has been falsely implicated.
5. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that as per own version given by victim/prosecutrix she had prior acquaintance with the bail petitioner and she had been talking to him since April 2020. As per own case of the victim/prosecutrix, she was sexually assaulted against her wishes on 14.4.2020 on the pretext of marriage but yet she chose not to file any complaint either to police or her parents, rather she on the askance of bail petitioner made bail petitioner to meet her mother for finalization of their marriage. As per own case of the victim/prosecutrix, family of the bail petitioner and victim/prosecutrix had agreed for marriage and as such, victim/ prosecutrix of her own volition had been regularly meeting the bail petitioner, who is otherwise younger than the victim/prosecutrix. Victim/prosecutrix in her statement given to police has stated that on 16.11.2021 her mother expired and thereafter bail petitioner and his family started finding excuses for not solemnizing her marriage with petitioner. She stated that bail petitioner stopped giving her call regularly, whereas other family members blocked her calls and she has apprehension that bail petitioner is likely to marry somebody else.
6. Having carefully perused status report, especially statements of victim/prosecutrix, this Court has no hesitation to conclude that victim/prosecutrix, who is major and 29 years old, had been meeting the bail petitioner of her own volition with a view to solemnize marriage and alleged incident of sexual assault had occurred on 14.4.2020. Now after almost two years of the alleged incident, victim/prosecutrix has lodged the FIR stating therein that on 23.1.2022 while she had gone to the house of the bail petitioner for collecting her certain documents, she was again subjected to forcible sexual intercourse by bail petitioner, but aforesaid version made by the victim/prosecutrix appears to be highly doubtful for the reasons that initially she herself stated that after 16.11.2021 when her mother expired, bail petitioner stopped talking to her, if it is/ was so there was no occasion, if any, for the victim/prosecutrix to visit the house of the bail petitioner on 23.1.2022.
7. Having noticed conduct of the victim/prosecutrix, which is apparent from her statements made to the police as well as judicial Magistrate, this Court finds it difficult to agree with contention of learned Additional Advocate General that bail petitioner taking undue advantage of innocence of the victim/prosecutrix exploited her against her wishes, rather as has been noticed hereinabove, victim/prosecutrix of her own volition had been meeting with bail petitioner with a view to solemnize marriage with him. Since bail petitioner has now shown reluctance to marry her, FIR as detailed hereinabove came to be lodged against the bail petitioner.
8. Though, case at hand is to be decided by the learned court below in totality of facts and evidence collected on record, but having taken note of aforesaid glaring aspects of the mater, this Court sees no reason to let bail petitioner incarcerate in jail for indefinite period during the trial, especially when nothing remains to be recovered from him. . Apprehension expressed by learned Additional Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice or may again indulge in such activities, can be best met by putting bail petitioner to stringent conditions.
9. Hon’ble Apex Court as well as this Court have held in catena of cases that one is deemed to be innocent till the time his /her guilt is not proved, in accordance with law and as such, this Court sees no reason to curtail the freedom of the bail petitioner for indefinite period during the trial, especially when nothing remains to be recovered from him.
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 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 ReInhuman Conditions in 1382 Prisons
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.”
12. 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.
13. 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.
14. Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail, subject to his furnishing personal bond in the sum of Rs. 1,00,000/- with one local surety in the like amount, to the satisfaction of the learned 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 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 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 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.
17. Learned counsel for the petitioner is permitted to produce copy of order downloaded from the High Court website before the concerned authority, who shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.
