Allowed

Som Dutt v. State of Hp

Himachal Pradesh HC9 Dec 2019CRMPM/2089/2019

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh granted regular bail to the petitioner charged with offences under IPC and POCSO for eloping with a minor. The court considered the victim's voluntary cohabitation, marriage, pregnancy, and the principles of presumption of innocence.

What did the court decide?

Petitioner enlarged on bail with bond of Rs.1,00,000 and one surety, subject to conditions including attendance and non-tampering.

Som Dutt Vs State of Hp — Child Sexual Offences (POCSO) | Himachal Pradesh HC (2019)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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Cr. MP (M) No. 2089 of 2019 Decided on December 9, 2019

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----------------------------------- Som Dutt	------------------------------------------ ...Petitioner Versus
State of Himachal Pradesh -----------------------------------	…Respondent ------------------------------------------
Coram:
The Hon’ble Mr. Justice San Whether approved for reporting?¹ -----------------------------------	deep Sharma, Judge. Yes. ------------------------------------------
For the petitioner	Mr. R.L. Chaudhary, Advocate.
For the respondent	Mr. Sumesh Raj, Additional Advocate General with Mr. Kunal
	Thakur, Deputy Advocate General.
	ASI Vinod Kumar, Investigating Officer, Police Station Sarkaghat, Mandi, Himachal Pradesh.
----------------------------------- Sandeep Sharma, J. (Oral)	------------------------------------------

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By way of instant petition filed under S.439 CrPC, bail petitioner, Som Dutt, who is behind the bars since 18.9.2019, has prayed for grant of regular bail in FIR No. 90, dated 1.5.2018 under Ss. 363, 366 and 376(2) read with S.120B IPC and Ss. 6 and 17 of Protection of Children from Sexual Offences Act, registered at Police Station, Sarkaghat, District Mandi, Himachal Pradesh.

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2. Sequel to order dated 16.11.2019, ASI Vinod Kumar has come present with the record. Mr. Kunal Thakur, learned Deputy Advocate General has also placed on record status report

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1 Whether reporters of the local papers may be allowed to see the judgment?

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prepared by the investigating agency on the basis of investigation carried out by it. Record perused and returned.

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3. Close scrutiny of status report/record reveals that on

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1.5.2018, complainant namely Ramesh Kumar (father victimprosecutrix) lodged a complaint at Police Station Sarkaghat, alleging therein that on 30.4.2018, at about 6 pm, his minor daughter (victim-prosecutrix)(name withheld) eloped with the bail petitioner, who is son of Bali Ram. Complainant also alleged that the bail petitioner and victim-prosecutrix also took some cash and valuable from the house of one Chint Ram, as such, appropriate action be taken against them. On the basis of aforesaid statement made by the complainant, FIR as detailed herein above came to be registered against the bail petitioner and co-accused Bali Ram, who already stands enlarged on bail by this Court vide judgment dated 24.10.2019 passed in CrMP(M) No. 1878 of 2019. During the course of investigation, complainant submitted an affidavit with the Police stating therein that cash and valuables reported to have been taken by the bail petitioner and victim-prosecutrix have been found in the house. During investigation, Police tracked the location of the cell phone and that of bail petitioner and victim-prosecutrix at Lahul & Spiti. On 7.9.2019, Police brought victim-prosecutrix and bail petitioner to Sarkaghat for identification. Victim-prosecutrix in her statement given to the Police as well as before Magistrate under Ss. 161 and

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164 CrPC, respectively, stated that she of her own volition and without there being any external pressure from accused, had gone with the bail petitioner and she has already solemnised marriage with him. In the aforesaid statement made by victimprosecutrix, she stated that they have been living as husband and wife and she is carrying pregnancy of four months. During investigation it also emerged that the bail petitioner and victimprosecutrix had prior proximity and they wanted to marry each other but due to minority of the victim-prosecutrix, such proposal could not materialize and as such, they eloped and lived as husband and wife in Lahul & Spiti.

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4. Mr. Kunal Thakur, learned Deputy Advocate General, while fairly admitting the factum with regard to filing of Challan , contended that keeping in view the gravity of offence alleged to have been committed by bail petitioner, he does not deserve any leniency rather the bail petitioner needs to be dealt with severely as such, petition may be rejected outrightly. Mr. Thakur, learned Deputy Advocate General contended that though material on record reveals that the victim-prosecutrix, of her own volition and without there being any external pressure joined the company of the bail petitioner but consent, if any, of her being minor is of no consequence and as such, prayer made on behalf of the bail petitioner for bail may be rejected.

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5. Having heard learned counsel for the parties and perused the material available on record, especially the statement of victim-prosecutrix recoded under S.164, this Court finds that the victim-prosecutrix, who at the relevant time was 17 years old, joined the company of the bail petitioner of her own volition, without there being any external pressure. Record further reveals that both the victim-prosecutrix and the bail petitioner were actually residing in the house of complainant at the time of alleged incident. It appears that victim-prosecutrix and bail petitioner wanted to marry each other but their such proposal could not materialize on account of age of the victim-prosecutrix.

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6. Though, in the case at hand, FIR was lodged on 1.5.2018 but victim-prosecutrix and bail petitioner were brought to Police Station Sarkaghat on 8.9.2019 i.e. almost after one and a half year. Victim-prosecutrix as well as bail petitioner in the statement given to the Police have categorically stated that they have solemnised marriage and they have been living together as a husband and wife. On the top of everything, it has come on record that at present victim-prosecutrix is pregnant, which fact otherwise stands corroborated from Mother-Child Healthcare card. No doubt, at the time of alleged incident, victim-prosecutrix was a minor but having taken note of the conduct of victimprosecutrix, which is quite apparent from her statements given to the police as well as Magistrate, it cannot be said that she was

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not capable of understanding the consequences of her being in the company of bail petitioner. Leaving everything aside, both victim-prosecutrix and bail petitioner have solemnised marriage and as such, no fruitful purpose would be served by keeping the bail petitioner behind the bars for an indefinite period during trial. Since victim-prosecutrix is pregnant and claims herself to be wife of the bail petitioner, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial. Though, guilt, if any, of the bail petitioner is yet to be determined in the totality of the evidence collected on record by the prosecution but having taken note of the aforesaid peculiar facts and circumstances, this Court sees no reason to deny bail, as has been prayed in the present petition.

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7. 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 held that freedom of an individual can not be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held as under:

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“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

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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.

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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

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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.

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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.”

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8. By now it is well settled 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. The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of

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Investigation (2012)1 Supreme Court Cases 49; has been held as under:-

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“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

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bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson.”

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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 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.

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10. In Manoranjana Sinh alias Gupta versus CBI ,

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(2017) 5 SCC 218, Hon'ble Apex Court has held as under:

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“This Court in Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40, 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 nor preventive. This Court sounded a caveat that any imprisonment before

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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 a 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 and 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 that 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.”

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11. The Apex Court in Prasanta Kumar Sarkar versus

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

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(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

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(ii) nature and gravity of the accusation;

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(iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail;

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

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(vi) likelihood of the offence being repeated;

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

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

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12. In view of above, bail petitioner has carved out a case for himself. Consequently, present petition is allowed. petitioner is ordered to be enlarged on bail, subject to his furnishing bail bonds in the sum of Rs.1,00,000/-(Rupees One Lakh) with one local surety in the like amount, to the satisfaction of the Investigating Officer/learned trial Court concerned, besides the following conditions:

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(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;

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

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(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

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