Himachal Pradesh High Court
Date Of Decision: 12.3.2025 vs State Of Himachal Pradesh on 12 March, 2025
Author: Sandeep Sharma
Bench: Sandeep Sharma
2025:HHC:5794
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No.255 of 2025
Date of Decision: 12.3.2025
_____________________________________________________________________
Ram Kumar Thakur
.........Petitioner
Versus
State of Himachal Pradesh
.......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
For the Petitioner: Mr. Nishant Khidtta, Advocate.
For the Respondents: Mr. Anup Rattan, Advocate General with Mr. Rajan
Kahol, Mr. Vishal Panwar and Mr. B.C. Verma,
Additional Advocates General and Mr. Ravi
Chauhan, Deputy Advocate General.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Bail petitioner namely Ram Kumar Thakur, who is behind the
bars since 2.9.2024, has approached this court in the instant proceedings
filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, for
grant of regular bail, in case FIR No. 71/24 dated 20.9.2024, registered at
Police Station Tissa, District Chamba, Himachal Pradesh, under Sections
376, 354A, 506 of IPC and Section 5 of Immoral Traffic Prevention Act,
1956.
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2. Respondent-State has filed the status report and ASI Pardeep
Singh, PS. Tissa, District Chamba, Himachal Pradesh, has come present
with records. Record perused and returned.
3. Close scrutiny of status report as well as other material made
available to this Court reveals that on 2.9.2024, victim-prosecutrix ( name
withheld ) got her statement recorded under Section 173 of the BNSS,
alleging therein that she is a domestic working woman and after passing
12th in the year 2019, she went to Smt. Amar Dei, wife of Sh. Ashok, to
learn sewing. Allegedly, afore Amar Dei while teaching her as well as other
students, used to teach them not to get married, roam around, drink and
talk to boys. Allegedly, in the year 2020, Amar Dei took her to PGI, where
her husband was admitted. She alleged that she stayed for a month at
Chandigarh and thereafter, came back to Tissa with Amar Dei. She further
alleged that in March 2021, Amar Dei took her to Chamba on the pretext
that she will get her married to one Ram Thakur i.e. present bail petitioner,
but when she reached Chamba, Amar Dei took her to hotel where she
allegedly booked two rooms. In one room, present bail petitioner, who was
already present there, made the victim-prosecutrix consume Pepsi mixed
with some toxic substance. Allegedly, bail petitioner taking advantage of the
situation sexually assaulted the victim-prosecutrix against her wishes. She
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alleged that when she confronted Amar Dei and present bail petitioner for
their indecent behaviour, they not only extended threats, but also
threatened to upload her obscene video and photos taken by the bail
petitioner on the internet. Present bail petitioner kept on sexually
assaulting the victim-prosecutrix till the end of the year 2023 and when
victim-prosecutrix stopped talking to the present bail petitioner, he
allegedly sent her video on mobile phone of Amar Dei, who further sent it
on the Whastapp of her husband (Ashok), who also started blackmailing
the victim-prosecutrix. In the afore background, victim-prosecutrix lodged
complaint against Amar Dei, Ashok and the present bail petitioner. Above
named co-accused already stand enlarged on bail, whereas present bail
petitioner is behind the bars for more than six months. Since investigation
in the case is complete and nothing remains to be recovered from the bail
petitioner, he has approached this Court in the instant proceedings,
praying therein for grant of regular bail.
4. Mr. Rajan Kahol, learned Additional Advocate General, while
acknowledging factum with regard to filing of the challan in the competent
court of law, states 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 him, he does not deserves any leniency. He further
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states that report of RFSL is still awaited. While making this Court peruse
record, especially statement made by victim-prosecutrix, Mr. Kahol states
that there is overwhelming evidence adduced on record suggestive of the
fact that bail petitioner not only sexually assaulted the victim-prosecutrix
against her wishes, but also blackmailed her by making her video viral. Mr.
Kahol states that since statement of victim-prosecutrix is yet to be
recorded, it may not be in the interest of justice to enlarge him on bail, who
in that event may not only flee from justice, but may cause harm to the
victim-prosecutrix.
5. Having heard learned counsel for the parties and perused the
material available on record, this Court finds that first, incident of sexual
assault, if any, had taken place in the month of March 2021, but
interestingly, no complaint was ever lodged by the victim-prosecutrix,
rather after the aforesaid incident, she kept on joining the company of the
bail petitioner. As per own statement of the victim-prosecutrix, she
remained in constant touch with the bail petitioner till the end of the year
2023, and during afore period, bail petitioner had sexually assaulted her
twice/thrice against her wishes. No plausible explanation has been
rendered on record by the prosecutrix that when in the year 2021, she was
subjected to forcible sexual intercourse, where was the occasion for her to
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join the company of bail petitioner for two years. Apart from above, this
Court finds that alleged incident of sexual assault had taken place in the
end of 2023, but even at that time, no complaint was made, rather
complaint, which ultimately culminated into FIR, was lodged on 2.9.2024.
If the statements of victim-prosecutrix made before the police and Judicial
Magistrate are perused juxtaposing each other, this court is not persuaded
to agree with Mr. Rajan Kahol, learned Additional Advocate General that
bail petitioner taking note of advantage of victim-prosecutrix sexually
assaulted her against her wishes, rather there is ample material available
on record to infer that victim-prosecutrix, who was major, of her own free
will, had been joining the company of the bail petitioner and till the filing of
the complaint, victim-prosecutrix kept silent. It is only after alleged
uploading of video by the co-accused Ashok, she lodged complaint.
Whether obscene video, if any, was uploaded on the internet by the present
bail petitioner is a question to be determined by the trial court in the
totality of evidence collected on record by the prosecution, but keeping in
view of the aforesaid glaring aspect of the matter, 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.
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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, if
any, of his/her is not proved in accordance with law. Apprehension
expressed by the learned Additional Advocate General that in the event of
petitioner’s being enlarged on bail, he may flee from justice, can be best
met by putting the bail petitioner to stringent conditions as has been fairly
stated by the learned counsel for the petitioner.
7. 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.
8. 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
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7than 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.”
9. 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
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8prisoners for an indefinite period would amount to violation of Article
21 of the Constitution was highlighted.”
10. 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
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
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9and 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.
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:
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(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/- with two local sureties 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.
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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.
15. The bail petitioner is permitted to produce copy of the 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.
March 12, 2025 (Sandeep Sharma),
(manjit) Judge