Himachal Pradesh High Court
Lal Chand vs State Of Himachal Pradesh on 30 September, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
1
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
.
Cr.MP(M) No. 1684 of 2020
Date of Decision : 30th September, 2020
Lal Chand
...Petitioner.
Versus
State of Himachal Pradesh
...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 No
For the petitioner : Mr. T.S. Chauhan and Mr. Vinod Chauhan, Advocates.
For the respondent : Mr. Nand Lal Thakur, Addl. A.G. and Mr. Ram Lal Thakur,
Asstt. A.G., for the State.
Anoop Chitkara, Judge (oral)
On the allegations of committing rape upon the victim in connivance with his brother who had brought her to home under the pretext of lending helping hand to the family, the petitioner, now apprehending his imminent arrest on being arraigned as accused, has come up under section 438 CrPC, seeking anticipatory bail.
2. Based on the complaint of victim, the Police registered FIR No.101 of 2020, dated 29.7.2020, under Sections, 376, 342, 506, 354 (D), 201 and 34 of Indian Penal Code, 1860, (IPC), Sections 67-A of the IT Act and Section 196 of the Motor Vehicles Act, in Police Station, Baijnath, District Kangra, Himachal Pradesh, disclosing cognizable and non-bailable offences. Earlier, the petitioner had filed a petition under Section 438 CrPC before the concerned Sessions Judge. However, vide order dated 21.9.2020, Ld. Additional Sessions Judge-III, Kangra at Dharamshala, District Kangra, HP, dismissed the petition, by recording that though the incident of committing rape upon the victim was 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 05/10/2020 20:17:47 :::HCHP 2to be of two years back and the matter was reported to the police only on 29.7.2020, but it would be premature to record any findings in this regards as it is the matter of trial.
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3. The petitioner's criminal history relating to the offences prescribing sentence of greater than seven years of imprisonment or when on conviction, the sentence imposed was more than three years: The contents of the petition do not reveal any criminal history.
4. Briefly, the allegations against the petitioner are that the victim informed the Police on 29.7.2020 that two years ago, Harpreet Singh (co-accused), took her to his home on the pretext that his wife had delivered a baby and she needed a helping hand and he also offered her money for such job. After that in the evening, she accompanied Harpreet Singh on his bike towards his house. On reaching there, she did not find the wife or the baby and only noticed Lal Chand (present petitioner), the brother of Harpreet Singh. Subsequently, Harpreet Singh offered her cold drink and after consuming that she started feeling unconscious. Thereupon, she told Harpreet that why did he lie to her about his wife's delivery, who was not present at home at that time. Subsequently, both Harpreet Singh and Lal Chand tried to commit rape upon her, but she could not resist due to unconsciousness. After that, they committed rape upon her. In the morning when she woke up she found herself to be nude. She further alleged that when she complained then Harpreet Singh threatened her that in case she reveal it to anybody then, he would kill her. For two years, Harpreet Singh kept on following her and pressurizing her to establish sexual relations with him. However, she did not bother him and would disconnect the phone calls. 3-4 days earlier, Harpreet Singh again called her and told her that in case she did not come to sleep with him, then he would send the obscene video, which he had made while committing rape upon her, to her husband and relatives. Initially, she thought that he was joking and she did not pay any heed to his demand. But, later on Harpreet told her on phone that he had sent the video on the WhatsApp number of her husband and her relatives. Based on these allegations, Police registered the FIR mentioned above. During investigation, the Police recovered the mobile phone from the victim's family and sent ::: Downloaded on - 05/10/2020 20:17:47 :::HCHP 3 it to Laboratory for testing and report of the Laboratory reveals that they did deduct an obscene video. They have copied it and sent to the Police.
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5. The Counsel for the petitioner seeks bail and contends that the accused deserves at least a chance to reform.
6. The contention on behalf of the State is that the offence is heinous in nature and the petitioner should not be enlarged on bail and if this Court grants bail, such order must be subject to conditions, especially of not repeating the criminal activities.
ANALYSIS AND REASONING:
7. In Gurbaksh Singh Sibbia and others v. State of Punjab, 1980 (2) SCC 565, (Para
30), a Constitutional bench of Supreme Court held that the bail decision must enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail.
In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42, (Para 18) a three-member bench of Supreme Court held that the persons accused of non- bailable offences are entitled to bail, if the Court concerned concludes that the prosecution has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its satisfaction for the need to release such persons on bail, in the given fact situations. The rejection of bail does not preclude filing a subsequent application, and the Courts can release on bail, provided the circumstances then prevailing requires, and a change in the fact situation. In State of Rajasthan, Jaipur v. Balchand, AIR 1977 SC 2447, (Para 2 & 3), Supreme Court noticeably illustrated that the basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the court. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. In Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240, (Para 16), Supreme Court in Para 16, held that the delicate light of the law favours release unless countered by the negative criteria necessitating that course. In ::: Downloaded on - 05/10/2020 20:17:47 :::HCHP 4 Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22, (Para 6), Supreme Court held that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in .
a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
8. Pre-trial incarceration needs justification depending upon the offense's heinous nature, terms of the sentence prescribed in the statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, criminal history of the accused, and doing away with the victim(s) and witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State.
9. A perusal of the allegations against the present petitioner, reveals that the incident is of two years back from the registration of FIR. In case, Harpreet Singh had not demanded from her to again sleep with him, then the victim had no issues. She did not report the matter unless her family came across the video which even as per her was not sent by the present petitioner but by Harpreet Singh. It is pertinent to mention here that if Lal Chand had any role in making the video public, then the victim would have leveled allegations against him but she specifically alleged that it was Harpreet Singh who had sent the video to her husband and some of the relatives. Thus, this Court cannot draw any inference that Lal Chand had any knowledge about the conduct of Harpreet Singh. Given the age of the victim and the fact that she is a government employee, this can be presumed that she was mature enough, coupled with the prolonged delay and the fact that the petitioner is working in the Indian Army and is posted in Srinagar, which is far way from the place of the victim, entitles him for grant of bail.
10. An analysis of entire evidence would make out a case for bail.
11. The possibility of the accused influencing the course of the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative conditions and stringent conditions.
::: Downloaded on - 05/10/2020 20:17:47 :::HCHP 512. Given the above reasoning, the Court is granting bail to the petitioner, subject to the imposition of following stringent conditions, which shall be over and above, and .
irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC.
Consequently, the present petition is allowed. The petitioner shall be released on bail in the present case, connected with the FIR mentioned above, on his furnishing a personal bond of INR 10,000/, (INR Ten thousand only), with one surety for INR 5,000 (INR Five thousand only), to the satisfaction of the Investigator/ SHO of the concerned Police Station. The furnishing of bail bonds shall be deemed acceptance of all stipulations, terms, and conditions of this bail order:
a) The Attesting officer shall mention on the reverse page of personal bonds, the permanent address of the petitioner along with the phone number(s), WhatsApp number (if any), email (if any), and details of personal bank account(s) (if available).
b) The petitioner shall join investigation as and when called by the Investigating officer or any superior officer. Whenever the investigation takes place within the boundaries of the Police Station or the Police Post, then the petitioner shall not be called before 8 AM and shall be let off before 5 PM. The petitioner shall not be subjected to third-degree methods, indecent language, inhuman treatment, etc.
c) The petitioner shall join and cooperate in the investigation, and failure to do so shall entitle the prosecution to seek cancellation of the anticipatory bail granted by the present order. (Kala Ram v. State of Punjab, 2018 (11) SCC 350).
d) The petitioner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police officials, or any other person acquainted with the facts of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.
e) Once the trial begins, the appellant shall not in any manner try to delay the trial. The petitioner undertakes to appear before the concerned Court, on the issuance of summons/warrants by such Court. The petitioner shall attend the ::: Downloaded on - 05/10/2020 20:17:47 :::HCHP 6 trial on each date, unless exempted.
f) There shall be a presumption of proper service to the petitioner about the date of hearing in the concerned Court, even if it takes place through SMS/ .
WhatsApp message/ E-Mail/ or any other similar medium, by the Court.
g) In the first instance, the Court shall issue summons and may inform the Petitioner about such summons through SMS/ WhatsApp message/ E-Mail.
h) In case the petitioner fails to appear before the Court on the specified date, then the concerned Court may issue bailable warrants, and to enable the accused to know the date, the Court may, if it so desires, also inform the petitioner about such Bailable warrants through SMS/ WhatsApp message/ E-Mail.
i) Finally, if the petitioner still fails to put in an appearance, then the concerned Court may issue Non-Bailable warrants to procure the petitioner's presence and send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper.
j) In case of Non-appearance, then irrespective of the contents of the bail bonds, the petitioner undertakes to pay all the expenditure (only the principal amount without interest), that the State might incur to produce him before such Court, provided such amount exceeds the amount recoverable after forfeiture of the bail bonds, and also subject to the provisions of Sections 446 & 446-A of CrPC. The petitioner's failure to reimburse the State shall entitle the trial Court to order the transfer of money from the bank account(s) of the petitioner. However, this recovery is subject to the condition that the expenditure incurred must be spent to trace the petitioner and it relates to the exercise undertaken solely to arrest the petitioner in that FIR, and during that voyage, the Police had not gone for any other purpose/function what so ever.
k) The petitioner shall intimate about the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, within thirty days from such modification, to the police station of this FIR, and the concerned Court, if such stage arises.
l) The petitioner shall neither stare, stalk, make any gestures, remarks, call, contact, message the victim, either physically, or through phone call or any ::: Downloaded on - 05/10/2020 20:17:47 :::HCHP 7 other social media, nor roam around the victim's home. The petitioner shall not contact the victim.
m) The petitioner shall abstain from all criminal activities. If done, then while .
considering bail in the fresh FIR, the Court shall take into account that even earlier, the Court had cautioned the accused not to do so.
n) During the trial's pendency, if the petitioner repeats the offence or commits any offence where the sentence prescribed is seven years or more, then the State may move an appropriate application for cancellation of this bail.
o) The petitioner shall surrender all firearms along with ammunitions, if any, along with the arms license to the concerned authority within 30 days from today. However, subject to the provisions of the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back, in case of acquittal in this case.
p) In case of violation of any of the conditions as stipulated in this order, the State/Public Prosecutor may apply for cancellation of bail of the petitioner. Otherwise, the bail bonds shall continue to remain in force throughout the trial.
13. The learned Counsel representing the accused and the Officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of this bail order to the petitioner, in vernacular and if not feasible, in Hindi or English.
14. In case the petitioner finds the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even before the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition.
15. In Sushila Aggarwal, the Constitutional bench concluded by holding as follows:
(2) As regards the second question referred to this court, it is held that the life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, if there are any special ::: Downloaded on - 05/10/2020 20:17:47 :::HCHP 8 or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.
(3) Nothing in Section 438 Cr. PC, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing .
of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. While considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts would be justified - and ought to impose conditions spelt out in Section 437 (3), Cr. PC [by virtue of Section 438 (2)].
The need to impose other restrictive conditions, would have to be judged on a case by case basis, and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed.
16. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency, from further investigation in accordance with law.
The present bail order is only for the FIR mentioned above. It shall not be a
17. blanket order of bail in any other case(s) registered against the petitioner.
18. Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.
19. The Investigating Officer attesting the bonds shall not insist upon the certified copy of this order and shall download the same from the website of this Court, or accept a copy attested by an Advocate, which shall be sufficient for the record. The Court Master shall handover an authenticated copy of this order to the Counsel for the Petitioner and the Learned Advocate General if they ask for the same.
20. The SHO of the concerned Police Station or the Investigating Officer shall arrange to send a copy of this order, preferably a soft copy, to the complainant and the victim, at the earliest. In case the victim notices any violation of this order, he/she may either ::: Downloaded on - 05/10/2020 20:17:47 :::HCHP 9 inform the SHO of the concerned Police Station or write to the Trial Court or even to this Court.
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21. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.
The petition stands allowed in the terms mentioned above. All pending applications, if any, stand closed.
Copy Dast.
(Anoop Chitkara), Judge.
September 30, 2020 (KS) ::: Downloaded on - 05/10/2020 20:17:47 :::HCHP