Sandeep Sharma, J
1. Bail petitioner namely Vijay Kumar, who is behind the bars since 28.1.2020, has approached this Court in the instant proceedings for grant of
regular bail in case FIR No. 445 of 2019 dated 31.12.2019, under Sections 363 and 376 of IPC and Section 6 of POCSO Act, registered at P.S. Una,
District Una, H.P.
2. Record/status report made available to this Court reveals that on 31.12.2019, complainant Tara Chand lodged a complaint at PS Una, District Una,
H.P., alleging therein that his minor daughter i.e. victim-prosecutrix (name withheld), aged 17 years, has gone missing and he has apprehension that
some unknown person has made her to elope with him and as such, appropriate action may be taken. Investigating Agency on the basis of call detail
report and tower location of mobile phone recovered victim-prosecutrix from a place called Ghaneli, Moradabad, U.P. During investigation, victim-
prosecutrix disclosed to the police that present bail petitioner Vijay Kumar had taken her to Moradabad, where co-accused Ravinder Kumar sexually
assaulted her against her wishes. Police after getting the statement of victim-prosecutrix recorded under Section 164 Cr.PC also got her medically
examined and thereafter, FIR detailed herein above came to be lodged against the present bail petitioner and the other co-accused. After completion
of investigation, police has filed challan in the competent court of law.
3. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly admitting factum with regard to filing of challan, 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 the bail
petitioner, his application for grant of bail deserves to be rejected outrightly.
4. Having heard learned counsel for the parties and perused material available on record, this Court finds that victim-prosecutrix of her own volition
had gone to Moradabad with the present bail petitioner, where she was allegedly sexually assaulted against her wishes by co- accused Ravinder
Kumar. If the statement of victim-prosecutrix recorded under Section 164 Cr.PC is perused, it clearly reveals that she was in constant touch with the
bail petitioner and they both used to like each other. It has come in the statement of victim-prosecutrix that she herself asked the bail petitioner to run
away, whereafter they both went to Moradabad and stayed in the room of co-accused Ravinder Kumar. Ravinder Kumar allegedly sent Vijay Kumar
back to Himachal Pradesh and thereafter, sexually assaulted victim- prosecutrix against her wishes. It has specifically come in the statement of
victim-prosecutrix that no offence much less under Section 376 IPC was committed against her by the bail petitioner. It has also come in the
statement of victim-prosecutrix that she wanted to solemnize marriage with person namely Anil, but since she was minor, proposal for marriage could
not materialize.
5. Having heard learned counsel for the parties and perused material available on record, this Court finds that no case much less under Section 376 of
IPC is made out against the present bail petitioner Vijay Kumar. Otherwise also, it clearly emerges from the record that victim-prosecutrix, who at the
time of the alleged incident was 17 years old, of her own volition had gone with Vijay Kumar to Moradabad. 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 having
noticed aforesaid glaring aspects of the matter, this Court, sees no reason to let the bail petitioner incarcerate in jail for an indefinite period, especially
when nothing remains to be recovered from him. No doubt at the time of alleged commission of offence, victim-prosecutrix was minor, but having
noticed her conduct, which is apparent from her statements given to the police as well as Judicial Magistrate, this Court is unable to accept the
contention of learned Additional Advocate General that she was incapable of understanding the consequences of her joining the company of the bail
petitioner.
6. 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, guilt of his/her
is not proved in accordance with law. In the case at hand, guilt if any of the bail petitioner is yet to be established on record by the Investigating
Agency by leading cogent and convincing evidence and as such, his freedom cannot be curtailed for an indefinite period during trial.
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 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:
“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 Re-Inhuman Conditions in 1382 Prisons.
8. 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.
9. 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.â€
10. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218, The Hon’ble Apex Court has held as under:-
“ This Court in Sanjay Chandra v. CBI, 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 or preventive. This Court sounded a
caveat 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 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
to 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 ad 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 the 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.â€
11. 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.
12. In view of the aforesaid discussion as well as law laid down 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. 1,00,000/- each with one local surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate/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 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.
13. 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.
14. 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 petition stands accordingly disposed of.
Copy dasti on usual terms.