Ashima Kashiv Vs State of Hp

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. MP (M) No. 178 of 2024 a/w Cr.MP(M) No.179 of 2024 Date of Decision:14.06.2024

----------------------------------------------------------------------------------------- 1. Cr. MP (M) No. 178 of 2024 Shubha Bhardwaj ...Petitioner Versus State of Himachal Pradesh …Respondent ----------------------------------------------------------------------------------------- 2. Cr. MP (M) No. 179 of 2024 Ashima Kashiv ...Petitioner Versus State of Himachal Pradesh …Respondent ----------------------------------------------------------------------------------------Coram: The Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?¹ . ---------------------------------------------------------------------------------------For the Petitioner(s): Mr. Nitin Thakur, Mr. Udit Shaurya Kaushik and Mr. Rajat Awasthi, Advocates. For the Respondent: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.Verma, Additional Advocate Generals, with Mr. Ravi Chauhan, Deputy Advocate General, for the respondent-State. Complainants are present in person with Mr. Suresh Singh Saini, Mr. Anil Kumar Manget and Mr. Rajendra Gulati, Advocate. ----------------------------------------------------------------------------------------- Sandeep Sharma, J. (Oral) Pursuant to order dated 02.02.2024, whereby this

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Court after having taken the bail petitioners into custody, enlarged

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

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them on bail, subject to their joining investigation in case FIR No.23 of 2024, dated 31.01.2024, under Sections 3(1)(r), 3(1)(s) and 3(1)(za)(d) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)Act, registered at police Station, Nalagarh, District Solan, Himachal Pradesh, respondent-State has filed the status report.

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Close scrutiny of the status report as well as other material available on record reveals that on 31.01.2024, complainants namely, Nikita Devi and Neha, who are students of Awasthi Institute of Nursing, Nalagarh, lodged a complaint at police Station Baddi, District Solan, H.P., alleging therein that accused, named therein, not only tortured them physically and mentally, but also made casteist remarks. Complainants, named hereinabove, disclosed to the police that accused, named in the FIR, who are Principal and Sister Tutor, respectively do not treat them fairly on account of their being from Scheduled Caste category. Complainants alleged that day in day out, they are being humiliated and harassed by the accused. Complainants alleged that on 30.01.2024, they had gone to meet the Principal i.e. Smt. Shubha Bhardwaj for knowing the status of their scholarship, but instead of providing requisite information, Principal as well as Sister Tutor hurled abuses and threw them out of the office. In the aforesaid background, FIR, as detailed hereinabove, came to be

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lodged against the petitioners, who immediately after registration of the FIR, approached this Court in the instant proceedings for grant of bail.

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On 02.02.2024, this Court, after having taken both the petitioners in custody ordered their enlargement on bail, subject to their joining investigation. Status report clearly reveals that pursuant to the direction contained in order dated 02.02.2024, both the bail petitioners not only joined the investigation, but also made available the requisite record. Since, challan stands filed in the competent Court of law and nothing remains to be recovered from the bail petitioners, prayer has been made on their behalf for grant of regular bail.

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While fairly admitting factum with regard to filing of the challan in the competent Court of law, Mr. Rajan Kahol, learned Additional Advocate General, states that though nothing remains to

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be recovered from the bail petitioners, but keeping in view the gravity of the offence alleged to have been committed by them, prayer made on their behalf for grant of bail may not be considered at this stage. Learned Additional Advocate General, while referring to the status report as well as other material available on record, fairly states that dispute, if any, interse parties appears to be on account of non-payment of fees as well as shortage of attendance of the complainants. He submits that though dispute, as indicated

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hereinabove, appears to be of Civil nature, but certainly petitioners being Principal and Sister Tutor are not expected to treat the complainants, who belong to Scheduled Caste category different from other categories, especially when there was no occasion, if any, for them to pass casteist remarks.

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To the contrary, Mr. Nitin Thakur, Advocate duly assisted by Mr. Udit Shaurya Kaushik, Advocate, submits that the petitioners herein have been falsely implicated in the case because at no point of time, casteist remarks were ever made by them, rather complainants after being denied permission to take examination on account of their having short attendance, lodged false complaint against them. Above named counsel further submits that there is overwhelming evidence adduced on record by the prosecution suggestive of the fact that attendance of the complainants was short and till date, they have not deposited their fee and once management questioned the complainants with regard to aforesaid shortcoming, they instead of rectifying their mistake, proceeded to lodge false complaint against the Principal as well as Sister Tutor. Lastly, Mr. Nitin Thakur, learned counsel for the bail petitioners, states that since investigation in the case is complete and challan stands filed in the competent Court of law, no fruitful purpose, if any, would be served by sending bail petitioners behind the bars, rather such action, if any, apart from causing

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stigma to the petitioners, may also jeopardize their career for no fault of them. He states that petitioners being responsible citizens shall always remain available for investigation as well as trial as when called by the Investigating Agency.

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Having heard learned counsel representing the parties and perused the material available on record, this Court finds that as per own case of the complainants on 30.01.2024, they had visited the office of the Principal to ascertain the status of the claim with regard to scholarship, but allegedly bail petitioners, who happen to be Principal and Sister Tutor, hurled abuses and made casteist remarks against the complainants. Status report, if perused in its entirety, nowhere suggests that, during investigation, Investigating Officer was able to record statement of any of the person, before whom casteist remarks, if any, were made by the Principal, rather record suggests that complainants, on account of short attendance, were denied permission to appear in the examination by the bail petitioners and thereafter, they straightway lodged the complaint, which is the subject matter of the present petitions. Record further reveals that the complainants herein were given admission against management quota and as per agreed terms, they were to pay Rs. 1,08,000/- as admission fee per annum, but yet College management reduced the fee to Rs. 75,000/-. As per the record, complainants Neha and Nitika are yet

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to pay fee of Rs.1, 65,000/- and Rs. 1, 03,871/- respectively on account of their fee.

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During the proceedings of the case, one of the bail petitioner namely, Smt. Shubha Bhardwaj, who is present in Court informed this Court that yesterday complainants were asked to appear for re-examination, but they instead of re-appearing started making video. Needless to say, complainants, being from Scheduled Castes category, get scholarship, which amount is to be subsequently adjusted towards fees. At first instance, amount on account of scholarship is remitted in the bank account of the candidate and thereafter, same is deposited with the institute. However, in the case at hand, it appears that the complainants, after having received the scholarship from the concerned authority, failed to deposit the same with the institute.

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This Court, with a view to provide adequate opportunity of being heard, specifically issued notices to the complainants and, pursuant to such notices, complainants alongwith Mr. Suresh Singh Saini, Advocate, have come present. Though, Mr. Saini, Advocate, on instructions, again reiterated that on the date of alleged incident, bail petitioners misbehaved with the complainants and passed casteist remarks, but he was unable to substantiate his aforesaid allegation with cogent and convincing evidence, if any, available at this stage. He was also unable to

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dispute that complainants were denied permission to take examination on account of short attendance. He was also unable to dispute that even as of today, some amount is payable by the complainants on account of annual fees.

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No doubt, offence alleged to have been committed by the bail petitioners is serious in nature, but till the time guilt, if any, of bail petitioners is not proved in accordance with law, they shall be deemed to be innocent. Merely, on the basis of registration of case under the ibid Act, Court straightway cannot conclude complicity, if any, of the bail petitioners in the commission of the offence, especially when status report as well as other material made available to this Court, nowhere substantiate the allegations levelled by the complainants in the FIR.

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Hon’ble Apex Court as well as this Court in catena of cases have repeatedly held that one is deemed to be innocent till the time his /her guilt is not proved, in accordance with law. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioners being enlarged on bail, they may flee from justice can be best met by putting bail petitioners to stringent conditions.

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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

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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 investigation 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:

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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 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

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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

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Hon’ble Apex Court in Sanjay Chandra versus

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Central Bureau of Investigation (2012)1 Supreme Court Cases

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49 has held that gravity alone cannot be a decisive ground to deny

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bail, rather competing factors are required to be balanced by the

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court while exercising its discretion. It has been repeatedly held by

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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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In Manoranjana Sinh alias Gupta versus CBI , (2017) 5 SCC 218, Hon'ble Apex Court has held that the 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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The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced.

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15. Consequently, in view of the above, orders dated

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02.02.2024 passed by this Court in both the petitions are made absolute, with following conditions:

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(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;

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

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(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/her from disclosing such facts to the Court or the Police Officer; and

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(d) They shall not leave the territory of India without the prior permission of the Court.

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It is clarified that if the petitioners misuse the liberty or

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violates any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail. 17. 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 these petitions alone. The petition stand accordingly disposed of.

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The bail petitioners are permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.

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(Sandeep Sharma) Judge

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June 14, 2024 (shankar)

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Ashima Kashiv v. State of Hp

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Ashima Kashiv v. State of Hp

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