Sneha v. State of Punjab

KULDEEP TIWARI, J. (ORAL)

¶1Through the instant petition, the petitioner craves for indulgence of this Court for her being enlarged on regular bail, in case FIR No.44 dated

16.03.2023, under Sections 177, 465, 468, 471 of the IPC, registered at P.S. Model Town, District Police Commissionerate Ludhiana. ALLEGATIONS

IN THE FIR

¶2The genesis of the present FIR is embodied in a complaint au-thored by one Kirandeep Kaur (hereinafter referred to as the 'complainant'), against whose brother the petitioner got lodged one of the hereinafter detailed FIRs for sexual crime. Succinctly stated, the allegations which constituted the bedrock for registration of the present FIR are that, on the basis of one Aadhar Card carrying her date of birth as 15.04.2015 and on the basis of another Aad-har Card carrying her date of birth as 06.03.2022, the petitioner claimed her-self to be a minor victim of sexual crime and thus got lodged: (i) FIR No.28 dated 22.02.2020, under Sections 376-D, 506 of the IPC, and, Sections 3, 4, 5 of the POCSO Act, 2012; and (ii) FIR No.78 dated 15.04.2021, under Sections 363, 366-A, 376 of the IPC, and, Section 6 of the POCSO Act, 2012. SUBMISSIONS OF LEARNED COUNSEL FOR THE PETITIONER

¶3The learned counsel for the petitioner, in his asking for the here-inabove extracted relief, has made the following submissions:-

(i) The issue "whether the Aadhar Cards were actually forged by the petitioner, or, she has been falsely implicated by the com-plainant in the present FIR, just to exert pressure upon her, being complainant in one of the FIRs (supra) registered against com-plainant's brother" is a debatable issue;

(ii) The petitioner has clean antecedents and she has suffered in-carceration of approx. 2½ months;

(iii) Trial in the present case, which is a Magisterial trial, is yet to commence, as charges have not been framed so far, and therefore, keeping the petitioner behinds the bars would serve no gainful pur-pose; SUBMISSIONS OF THE LEARNED STATE COUNSEL

¶4Per contra, the learned State counsel has opposed the grant of regular bail to the petitioner, on the ground that, despite the petitioner being an adult, yet she had, on the basis of forged Aadhar Cards, got lodged false FIRs under the POCSO Act against several persons. He has also placed on record the custody certificate of the petitioner, as issued by the Deputy Super-intendent, Women Jail, Ludhiana.

¶5Moreover, on instructions imparted to him by A.S.I. Ravinder, the learned State counsel has verified that, the Final Report was filed on

15.05.2024 and the trial is yet to commence. ANALYSIS

¶6Before embarking upon the process of evaluating the argu-ments addressed by the learned counsels for the parties and penning down any opinion upon the instant petition, it is deemed imperative to capture an overview of some significant legal propositions.

¶7"Bail is the Rule and Jail is an Exception". This basic principle of criminal jurisprudence was laid down by the Hon'ble Supreme Court, way back in 1978, in its landmark judgment titled "State of Rajasthan V. Balchand alias Baliay", 1977 AIR 2447, 1978 SCR (1) 535. This principle finds its roots in one of the most distinguished fundamental rights, as en-shrined in Article 21 of the Constitution of India. Though the underlying objective behind detention of a person is to ensure easy availability of an accused for trial, without any inconvenience, however, in case the presence of an accused can be secured otherwise, then detention is not compulsory.

¶8The right to a speedy trial is one of the rights of a detained per-son. However, while deciding application for regular bail, the Courts shall also take into consideration the fundamental precept of criminal jurispru-dence, which is "the presumption of innocence", besides the gravity of of-fence(s) involved.

¶9In "Gurbaksh Singh Sibbia v. State of Punjab", (1980) 2 SCC 565 at 586-588, the purpose of granting bail is set out by the Hon'ble Supreme Court with great felicity as follows:- "27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Cal-cutta in Nagendra v. King Emperor, AIR 1924 Calcutta 476 (479, 480) that the object of bail is to secure the attendance of the ac-cused at the trial, that 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 and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the 'Meerut Conspiracy cases observations are to be found regarding the right to bail which de-serve a special mention. In K.N. Joglekar v. Emperor, AIR 1931 Al-lahabad 504 (SB) it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the pre-ceding Section 497 which corresponds to the present Section 437. It was observed by the Court that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion con-ferred by Section 498 and that the only principle which was estab-lished was that the discretion should be exercised judiciously. In Emperor v. H.L. Hutchinson, AIR 1931 Allahabad 356 at p. 358 it was said that it was very unwise to make an attempt to lay down any particular rules which bind the High Court, having regard to the fact that the legislature itself left the discretion of the Court unfet-tered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is danger-ous to make an attempt to classify the cases and to say that in partic-ular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly de-fend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence. XX XX

¶29In Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118 it was observed by Goswami, J., who spoke for the Court, that "there cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of ju-dicial discretion in granting or cancelling bail".

¶30In American Jurisprudence (2d, Vol. 8, page 806, para 39) it is stated : "Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end." It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumula-tive effect of which must enter into the judicial verdict. Any one sin-gle circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail."

¶10Also, in "Gudikanti Narasimhulu and others Versus Public Prosecutor, High Court of Andhra Pradesh", 1978 AIR (Supreme Court) 429, the Hon'ble Supreme Court, speaking through Krishna Iyer, J., has enunciated the principles of bail thus : "9. Thus the legal principle and practice validate the court consid-ering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the an-tecedents of a man who is applying for bail to find whether he has a bad record-particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habitual, it is part of criminological history that a thoughtless bail order has en-abled the bailee to exploit the opportunity to inflict further crimes on the member of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.

¶10The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to he goals of community good and State necessity spelt out in Article 19. Indeed, the considerations I have set out as criteria are germane to the con-stitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by re-fusal of bail is not for punitive purpose but for the bi-focal interests of justice - to the individual involved and society affected.

¶11We must weight the contrary factors to answer the test the rea-sonableness, subject to the need for securing the presence of the bail applicant. It makes sense to assume that a man on bail has a better chance to prepare of present his case than one remanded in custody. And if public justice is to be promoted. mechanical detention should be demoted. In the United States, which has a constitutional per-spective close to ours, the function of bail is limited, 'community roots' of the applicant are stressed and, after the Vera Foundation's Manhattan Bail Project, monetary suretyship is losing ground. The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible con-sideration. Equally important is the deplorable condition, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and ex-pensive custody of avoidable incarceration makes refusal of bail un-reasonable and a policy favouring release justly sensible.

¶12A few other weighty factors deserve reference. All deprivation of liberty is validated by social defence and individual correction along an anti-criminal direction. Public justice is central to the whole scheme of bail law. Fleeing justice must be forbidden but punitive harshness should be minimised. Restorative devices to redeem the man, even through community service, meditative drill, study classes or other resources should be innovated, and playing foul with public peace by tampering with evidence, intimidating witnesses or com-mitting offences while on judicially sanctioned 'free enterprise', should be provided against. No seeker of justice shall play confi-dence tricks on the court or community. Thus, conditions may be hung around bail orders, not to cripple but to protect. Such is the holistic jurisdiction and humanistic orientation invoked by the judi-cial discretion correlated to the values of our Constitution.

¶13Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before this Court pends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the court's verdit once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding if that be so - of innocence has been recorded by one court. It may not be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, if enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man and socio-geographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and policy prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the court into a complacent refusal."

¶11Be that as it may, considering the hereinabove made submissions, especially the fact that: (i) the allegation of forgery of Aadhar Cards and registration of false FIRs based thereon, is yet to be established by the prosecution, by leading cogent evidence before the learned trial Court; (ii) as per custody certificate, the petitioner has clean antecedents and she has suffered incarceration of approx. 2 months and 11 days; (iv) trial in the instant case is a Magisterial trial, which is yet to commence, therefore, subjecting the petitioner to prolonged incarceration would serve no fruitful purpose; this Court deems it appropriate to grant the concession of regular bail to the petitioner. Therefore, without commenting upon the merits and circumstances of the present case, the present petition is allowed. The petitioner is ordered to be released on bail on furnishing of bail bond and surety bond to the satisfaction of concerned Chief Judicial Magistrate/trial Court/Duty Magistrate.

¶12However, anything observed here-in-above shall have no effect on the merits of the case and is meant for deciding the present petition only.

(KULDEEP TIWARI) May 29, 2024

JUDGE devinder :

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : May 29, 2024 SNEHA -PETITIONER V/S STATE OF PUNJAB -RESPONDENT CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI Present: Mr. Ashish Nagar, Advocate for the petitioner. Mr. Pardeep Bajaj, D.A.G., Punjab. ***