Tarlok Singh Chauhan, J.@mdashThe petitioner has approached this Court for grant of bail in case FIR No. 70/2014, registered at Police Station, Jhakdi, District Shimla, on 23.12.2014, under Section 376, 452 and 506 of the Indian Penal Code.
2. The case of the prosecution is that the petitioner was working in the Home Guards and had sexually assaulted the prosecutrix on more than one occasion. It is alleged that the prosecutrix, for the first time, had been assaulted on 09.11.2014 at about 10.30 a.m. when her children had gone to school and her husband had gone to the shop at Moorang. Finding the prosecutrix alone, the petitioner is alleged to have committed sexual intercourse with the prosecutrix against her consent. Despite her having been raised hue and cry, none came and it is alleged that because of the threat carried out by the petitioner, she did not disclose this incident to any person.
3. It is further alleged that on 20.11.2014, the petitioner again came to the house of the prosecutrix in a drunken condition at about 10 o''clock and while her three children were sleeping, the petitioner is alleged to have raped the prosecutrix. It is also alleged that on 21.11.2014, the prosecutrix informed her husband about the incident, who gave beatings to her on the pretext as to why she did not disclose this fact earlier. It is then alleged that on 22.11.2014, the prosecutrix visited the Police Chowki, Jeori, where the police got her signatures on blank paper. It is further alleged that on 23.11.2014 the petitioner called-up the prosecutrix and asked her to meet him which she refused. Later, the petitioner came there and dragged her and then again committed forcible sexual assault on her. Despite her raising hue and cry, none came there and thereafter the petitioner took her along with him in his Maruti Car. Thereafter, she went to the house of her ''Massi'', who advised her to file the present case.
4. I have heard the learned counsel for the parties and gone through the records produced by the prosecution.
5. Though the allegations against the petitioner are of serious nature, but the same cannot be taken at their face value at this stage. This is, particularly, in the backdrop that the prosecutrix alleges that she had been raped, for the first time, on 09.11.2014 at about 10.30 a.m., when her children had gone to the school while her husband had gone to the shop. It is revealed that 9th November, 2014 was a Sunday and there is no material available on the record of the investigation that the schools on this date for any reason whatsoever were open. That apart, the silence of the prosecutrix for a sufficient long period of time is definitely required to be viewed with an eye of suspicion and cannot be taken at its face value and is required to be taken with a pinch of salt.
6. The learned Additional Advocate General would then vehemently argue that the prosecutrix is an illiterate not knowing the intricacies of law. I am afraid that these submissions cannot be countenanced because illiteracy has nothing to do with the most cherished possession of a woman which is her dignity, chastity, honour and reputation. One is not required to be literate to come to know that her honour and chastity have been ravished.
7. No doubt, the offence of rape is grave by its very nature and there can be nothing more horrendous and despicable crying against a woman because rape not only causes physical injury but more indelibly leaves a scar on the most cherished possession of a woman which is her dignity, chastity, honour and reputation. But, then the Court is not required to swayed away by emotions alone after all even the liberty of the petitioner is at stake.
8. The law with regard to grant of bail is now well settled. As early as in the year 1978, the Hon''ble Supreme Court in
"22. In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail subject to subsection (3) of Section 437 CrPC if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437(1) CrPC and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence.
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24. Section 439(1) CrPC of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437(1) there is no ban imposed under Section 439(1), CrPC against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1) CrPC of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437(1) and Section 439(1) CrPC of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out."
9. The Hon''ble Apex Court in
(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.
Thereafter, in a detailed judgment, the Hon''ble Supreme Court in
"111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia''s case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour.
112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused''s likelihood to repeat similar or the other offences.
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.
114. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situations and circum stances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the Judge concerned, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the court of Sessions or the High Court is always available."
(Emphasis supplied)
10. In
"21. In bail applications, generally, it has been laid down from the earliest times that 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 is 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.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted 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 this country, 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.
23. Apart from the question of prevention being the object of a 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 un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.
40. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required."
11. Coming back to the facts of the case, it would be seen that the relations inter se prosecutrix and her husband appeared to have become strained after the entry of the petitioner in the scene. At this stage, it would not be proper for this Court to make any comment on the conduct of the prosecutrix lest it hampers the prosecution case, suffice it to say that the allegations made by the prosecutrix appear to be something more than what meets the eye.
12. On the basis of the records, it cannot be said that the petitioner would in any manner impede the course and cause of justice or that he in any manner would hamper free, fair and full investigation, whether ultimately the petitioner would be convicted of the offence in question will be determined during the course of trial after full and complete material is placed on record by the parties. However, in the given facts and circumstances of the case, the petitioner has carved out a case for grant of bail.
13. The petitioner, otherwise, is a permanent resident of District Kinnaur and is presumed having roots in the society. There is remote possibility of his fleeing from justice. Even otherwise, stringent conditions for securing the presence of the petitioner for the purpose of investigation and trial can always be imposed.
14. Accordingly, the interim order dated 01.01.2015 is made absolute. The petitioner shall be on bail till the challan is presented in the Court for trial whereafter he shall approach the Court for grant of regular bail in accordance with law. Needless to add that the petitioner shall fully comply with the statutory conditions laid down under Section 438 of Cr.P.C. and would comply with all the conditions as contained in order dated 01.01.2015 viz.;
(i) the petitioner shall furnish bail bonds in the sum of Rs. 20,000/- with one surety of the like amount to the satisfaction of learned Additional Chief Judicial Magistrate, Rampur Bushahr;
(ii) it is clarified that the petitioner shall fully co-operate with the investigation as and when required;
(iii) he will not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(iv) he shall not make any inducement, threat or promise 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;
(v) he shall not leave the Country without prior permission of the Court.
Learned Additional Chief Judicial Magistrate, Rampur Bushahr, is directed to comply with the directions issued by the High Court, vide communication No. HHC.VIG./Misc.Instructions/93-IV.7139 dated 18.03.2013.
15. Any observation made hereinabove shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made hereinabove.
Petition stands disposed of.
