Surender vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner Surender, who is behind the bars since 5.2.2021, has approached this Court in the instant proceedings filed under S.439 CrPC, for

grant of regular bail in FIR No. 5, dated 25.1.2021 under Ss. 363, 366A, 120B, 376, 506 IPC and S.4 of the Protection of Children from Sexual

Offences Act, registered at Police Station, Pachhad, District Sirmaur, Himachal Pradesh.

Status report filed by the State in terms of order dated 31.3.2021, prepared on the basis of investigation carried out by the investigating agency,

reveals that on 25.1.2021, complainant, who happened to be the mother of the victim-prosecutrix (name withheld), lodged a complaint at Police Station

Pachhad, District Sirmaur, alleging therein that her minor daughter, aged 15 years, has gone missing and she has apprehension that the person namely

Amit, has made her daughter elope with him on the pretext of marriage, as such, appropriate action, in accordance with law, may be taken against the

above named person. On the basis of aforesaid complaint, police registered case under Ss. 363, 366A IPC and on the basis of Call Detail Record,

apprehended a person namely Golu alias Govind from Riwari, Haryana. Above named Golu alias Govind disclosed to the police that the person namely

Amit had come to him alongwith the victim-prosecutrix. Allegedly, the above named Golu also apprised the complainant with regard to the factum of

solemnization of marriage inter se Amit and the victim-prosecutrix. Police, after having found involvement of Golu alias Govind, registered a case

against him under Ss.120B and 506 IPC. On the basis of information shared by above named Golu alias Govind, Police found that the person namely

Nitish, brother of Amit had called Golu to Delhi, from where, they sent Amit and victim-prosecutrix to Bihar. The precise allegation against the present

bail petitioner is that he accompanied the main accused Amit and victim-prosecutrix in a car, while they were going from Nahan to Jhajhar, Haryana,

whereafter, accused Golu alias Govind took the victim-prosecutrix to Delhi and thereafter sent her alongwith the main accused Amit to Bihar. In the

aforesaid background, bail petitioner also came to be named in the FIR and since 5.2.2021, he is behind the bars.

Since Challan stands filed in the competent Court of law and nothing is to be recovered from the bail petitioner, as such, he has approached this

Court in the changed circumstances. Record reveals that prior to filing of the petition at hand, bail petitioner had filed a petition before learned Special

Judge, Sirmaur at Nahan but his prayer was rejected vide order dated 18.3.2021. Perusal of order dated 18. 3.2021 reveals that the factum with

regard to bail petitioner being a resident of Haryana, weighed heavily with the learned Court below for rejection of bail, because, learned Court below

has specifically observed in its order dated 18.3.2021 that in the event of bail petitioner being enlarged on bail he may not only abscond during trial but

may also hamper the investigation.

Mr. Kunal Thakur, learned Deputy Advocate General, while fairly acknowledging the factum with regard to filing of Challan, states that though

nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of the offence alleged to have been committed by the bail

petitioner, he does not deserve any leniency. Mr. Thakur, Learned Deputy Advocate General submits that though no allegation qua sexual

harassment/assault has been levelled against the bail petitioner by the complainant or the victim-prosecutrix, but the investigation reveals that the bail

petitioner helped and connived with the main accused, Amit, who, taking undue advantage of the victim-prosecutrix, repeatedly sexually assaulted her

against her wishes, as such, prayer made in the present petition deserves outright rejection.

Having heard Learned Counsel appearing for the parties and perused the material on record, this Court finds that the allegation against the bail

petitioner is that he helped the main accused, Amit in making the victim-prosecutrix elope with him (Amit). Since the present bail petitioner traveled

with the main accused Amit from Nahan to Jhajhar, Haryana, he came to be named in the FIR registered against him. It is none of the case of the

prosecution that the present bail petitioner made attempt, if any, to sexually assault or cause any kind of harm to the victim-prosecutrix, who with the

intention to solemnise marriage with the main accused, Amit, of her own volition, fled from her house. It is quite apparent from the status report that

the victim-prosecutrix had prior acquaintance with the main accused, Amit and she, of her own volition and without there being any external pressure,

went with Amit to Bihar to solemnise marriage. The fact, whether the present bail petitioner helped /connived with the main accused, Amit in the

commission of the alleged offence, needs to be ascertained on the basis of evidence led on record by the prosecution. Otherwise, as per status report,

present bail petitioner. traveled alongwith main accused, Amit from Nahan to Jhajhar, from where, main accused, Amit with the help and aid of Golu

alias Govind, went to Delhi and thereafter to Bihar. Otherwise also, statements of victim-prosecutrix recorded under Ss. 161 and 164 CrPC, nowhere

reveal allegations, if any, of harassment by the bail petitioner against the victim-prosecutrix. Challan stands filed in the competent Court of law by the

investigating agency and nothing remains to be recovered from the bail petitioner, as such, there appears to be no justification to let the bail petitioner

incarcerate in jail for an indefinite period during trial. Guilt, if any, of the bail petitioner is yet to established on record by leading cogent and convincing

evidence, as such, it would not be fair and in the interest of justice to curtail the freedom of the bail petitioner, for an indefinite period during trial.

Hon'ble Apex Court and this Court in a catena of cases have repeatedly held that one is deemed to be innocent, till the time, he/she is proved guilty

in accordance with law. In the case at hand, complicity, if any, of the bail petitioner is yet to be established on record by the investigating agency, as

such, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when nothing remains to be

recovered from him. Apprehension expressed by learned Deputy Advocate General, that in the event of being enlarged on bail, bail petitioner may flee

from justice or indulge in such offences again, can be best met by putting the bail petitioner to stringent conditions.

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.

Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held 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.

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.

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.

In view of above, bail petitioner has carved out a case for himself, as such, present petition is allowed and the bail petitioner is ordered to be

enlarged on bail, subject to furnishing fresh bail bonds in the sum of Rs.50,000/- with one local surety in the like amount, to the satisfaction of the

learned trial Court, besides the 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 him/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.

It is clarified that if the petitioner misuses the 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.

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 petition alone.

The petition stands accordingly disposed of.

Copy dasti.