Allowed

Rajiv Goyal v. State of Hp

Himachal Pradesh HC11 Dec 2019CRMPM/2204/2019

Case brief

AI extract

What is this about?

High Court granted regular bail to the petitioner in a rape and cyber-crime FIR. Despite significant allegations of sexual assault, the court emphasized the presumption of innocence and noted lack of evidence regarding the accused fleeing justice, denying the claim that gravity alone is decisive.

What did the court decide?

Petitioner ordered to be enlarged on bail to furnish a personal bond of Rs. 2,00,000/- with one surety in the like amount.

Rajiv Goyal Vs State of Hp — Bail and Remand | Himachal Pradesh HC (2019)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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Cr.MP(M) No.2204 of 2019 Decided on: 11.12.2019

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__________________________________________________________________ Rajiv Goyal ………..Petitioner Versus State of Himachal Pradesh ……….Respondent
__________________________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?¹
For the Petitioner : Mr. B.R. verma, Advocate. For the Respondent : Mr. Sudhir Bhagnagar, Anil Jaswal and Mr. Arvind Sharma, Additional Advocate Generals, with Mr. Kunal Thakur, Deputy Advocate General, for the State.

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__________________________________________________________________ Sandeep Sharma, Judge(oral):

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Instant bail petition under Section 439 CrPC has been filed by the bail petitioner, namely Rajiv Goyal, who is behind bars since 1.11.2019, for grant of regular bail in connection with FIR No. 56/19, dated 31.10.2019, under Sections 376 and 506 of IPC and Section 67 of IT Act, registered at WPS Solan, District Solan, H.P.

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2. In terms of order dated 2.12.2019, SI Brij Lal, has come present alongwith records. Mr. Anil Jaswal, learned Additional Advocate General, has also placed on record status report prepared on the basis of investigation carried out by the Investigating Agency. Record perused and returned.

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

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3. Close scrutiny of record/status report made available to this Court reveals that, on 31.10.2019, victim-prosecutrix (name withheld) submitted a written complaint to the Additional SP Solan, District Solan, alleging therein that during her training in the year, 2014, she came in the contact of present bail petitioner, who assured to help her in a case having been filed by her against her husband under the Domestic Violence Act. She alleged that since she was mentally depressed on account of her relationship with her-in-laws and husband, she on the askance of the bail petitioner met her at MLA Hostel, Shimla in the year, 2014. Victim-prosecutrix further alleged that in MLA Hostel, bail petitioner made her to drink some intoxicant and thereafter, sexually assaulted her against her wishes. Victim-prosecutrix further alleged that since she had come close to the bail petitioner, he taking undue advantage of her emotions clicked nude photographs and thereafter, threatened to upload them on the internet. Victim-prosecutrix alleged that once the case lodged by her against her husband was resolved, she went back to her husband and blocked the bail petitioner. She alleged that in the meantime, lady namely Pooja Chauhan, R/o Faridabad, became her friend. Allegedly above named Pooja also clicked some obscene photographs of her and thereafter, started blackmailing her. Victimprosecutrix in a complaint lodged to police alleged that both the bail

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petitioner and Pooja Chauhan somehow came in contact of each other and now they both are harassing her. Complainant alleged that bail petitioner along with Pooja Chauhan uploaded her certain objectionable photographs on Facebook and as such, prayed that appropriate action may be taken against the persons named herein above. On the basis of aforesaid complaint, FIR detailed herein above, came to be lodged against the bail petitioner and Pooja Chauhan. Bail petitioner is behind the bars since 1.11.2019, whereas, other co-accused Pooja Chauhan is absconding.

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4. Mr. Anil Jaswal, learned Additional Advocate General while fairly admitting that nothing remains to be recovered from the bail petitioner, contended that keeping in view the gravity of offence alleged to have been committed by the bail petitioner, his application for grant of bail deserves outright rejection. Mr. Jaswal, while making this Court to peruse the record, especially statements of victim-prosecutrix recorded under Sections 161 and 164 Cr.PC, respectively, contended that it is ample clear that bail petitioner taking undue advantage of innocence of the victim prosecutrix, who was not in fit state of mind at that relevant time, not only extended threats, but also sexually assaulted her against her wishes repeatedly. Mr. Jaswal, further contended that evidence collected on record clearly reveals that bail petitioner with an

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intention to harass and blackmail the victim-prosecutrix also uploaded her objectionable photographs on the internet and as such, it would not be in the interest of justice to release him on bail because in the event of his enlargement on bail, there is every possibility of his fleeing from justice.

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5. Having heard learned counsel for the parties and perused material available on record, this court finds that victim-prosecutrix came in contact of the bail petitioner in the year, 2014. As per own statement of victim-prosecutrix, she had become emotionally dependent upon the bail petitioner, who thereafter sexually assaulted her against her wishes. Statement of victim-prosecutrix recorded under Section 164 Cr.PC clearly reveals that she of her own volition remained in the company of the bail petitioner at Shimla and thereafter, in a hotel at Kullu. Most importantly, it has come in the statement of victim-prosecutrix that she, after having come to know that there are certain objectionable photographs of her in the phone of the bail petitioner, persuaded the bail petitioner to delete them, but some of them still remained in the phone. This Court cannot lose sight of the fact that victim-prosecutrix is 42 years old lady and as such, it cannot be said that she was incapable of understanding the consequences of her joining the company of the bail petitioner. Moreover, the alleged incident pertains to year, 2104, but there is no material worth the name available on record suggestive of the fact that

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between the year, 2104 till 2019, victim-prosecutrix lodged complaint, if any, either in police or in court of law against the indecent behavior of the present bail petitioner. As per own statement of victim-prosecutrix, she after having compromised with her husband in the year, 2015, started living with him. But in the year, 2015, no complaint, if any, ever came to be lodged at the behest of victim-prosecutrix with regard to indecent behavior and forcible sexual assault, if any, committed by the bail petitioner, rather victim-prosecutrix chose to keep mum for almost four years. Careful perusal of statement of victim-prosecutrix clearly reveals that between2014 to 2015 she of her own volition and without there being any external pressure remained in the constant touch of the bail petitioner and during this period, they also developed intimate relationship. Though victim-prosecutrix has referred to unholy alliance of co-accused Pooja Chauhan and bail petitioner, but at this stage, this Court finds no evidence with regard to conspiracy, if any, inter-se co-accused Pooja Chauhan and bail petitioner.

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6. 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 Investigating Agency, but keeping in view the aforesaid glaring aspects of the matter, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period,

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especially when challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner. Mobile phone of the bail petitioner containing obscene photographs of victim-prosecutrix is already in the custody of Investigating Agency. Moreover, no material worth the name has been adduced on record suggestive of the fact that in the event of petitioner’s being enlarged on bail, he may flee from justice. Hon’ble Apex Court as well as this Court in catena of judgments have held that till the time a person is not found guilty, he/she is deemed to be innocent. In the case at hand also, guilt, if any, of the petitioner is yet to be ascertained in accordance with law.

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7. By now it is well settled that gravity alone cannot be 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.

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8. 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. The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation ( 2012)1

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Supreme Court Cases 49 has categorically held that 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.

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9. 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 has 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:

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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

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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.

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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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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.

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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

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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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See. Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218, Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496 T

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10. In view of the aforesaid discussion as well as law laid down

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by the Hon’ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 2,00,000/- with one surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with 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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