Himachal Pradesh High Court
Vivek Mahajan vs Of on 14 September, 2023
Author: Sushil Kukreja
Bench: Sushil Kukreja
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Cr. MPs(M) No. 1466 of
2023 & 1467 of 2023
Decided on: 14.09.2023
(1) Cr. MP(M) No. 1466 of 2023
Vivek Mahajan ....Petitioner
Versus
of
State of Himachal Pradesh ....Respondent
(2) Cr. MP(M) No. 1467 of 2023
rt
Vandana Mahajan ....Petitioner
Versus
State of Himachal Pradesh ....Respondent
Coram
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1
For the petitioner(s) : Mr. N.S. Chandel, Senior
Advocate with Mr. Pranav
Sharma and Mr. Kshitij Thakur,
Advocates.
For the respondent : Mr. B.N. Sharma, Additional
Advocate General.
For the complainant : Mr. Kulwant Singh Gill,
Advocate.
Sushil Kukreja, Judge (oral)
Since both the bail petitions arise out of an FIR No. 172/2023 dated 14.06.2023, they have been heard together and are being disposed of by this common order.
1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 16/09/2023 20:33:42 :::CIS 22. By way of instant petitions, filed under Section .
438 of the Criminal Procedure Code, the petitioners are seeking anticipatory bail in case F.I.R. No. 172/2023, dated 14.06.2023, registered at Police Station Nalagarh, District Solan, H.P., under Sections 376, 506 and 34 of the of Indian Penal Code (hereinafter referred to as "IPC").
3. The prosecution story, in brief, is that on rt 14.06.2023 the victim (name withheld) got recorded her statement under Section 161 Cr. P.C. before the Police Station Nalararh, District Solan, H.P., wherein it has been alleged that in the month of January, 2023, while surfing through Facebook, she came across one advertisement by one Vandana Mahajan (petitioner herein) regarding work from home. Accordingly, the victim contacted Vandana Mahajan telephonically, who instructed her to contact her senior Vivek Mahajan (petitioner herein). Petitioner Vivek Mahajan apprised her that their business work relates to online calls and video calls as per requirements of their business transactions, qua which, she would be trained in due course. However, the victim came to know that she had been duped by the petitioners by involving her in ::: Downloaded on - 16/09/2023 20:33:42 :::CIS 3 online dating application "Chamet" for inappropriate .
conversation and sexual contents. Since the callers started demanding nude photos of the victim, she deleted the aforesaid application and blocked petitioner Vandana Mahajan. However, Vandana Mahajan credited a sum of of Rs. 3,000/- & 2,000/- to the victim and started luring her through different numbers to rejoin the application with rt fresh offers and more money. Petitioner Vivek Mahajan continuously called the victim from different numbers offering share in his property dealings and industry businesses. On 23.04.2023, the victim received a telephonic message from Vivek Mahajan that he needs one receptionist for Hotel Kara at Nalagarh. He told the victim that he had expelled the earlier receptionist working there. He further told the victim that Hotel Kara is a five star hotel and she will get around Rs. 60,000/-
salary with 60 holidays in one year, free lodging, food and health insurance by hotel itself. Thereafter, petitioner Vandana Mahajan called the victim many times and she even credited Rs. 3,500/- towards conveyance charges and fixed the interview of the victim for 26.04.2023 at ::: Downloaded on - 16/09/2023 20:33:42 :::CIS 4 Hotel Kara. During interview, petitioner Vivek Mahajan .
offered the victim food and snacks and when she inquired about petitioner Vandana Mahajan, he replied that she had to leave and she would be available by tomorrow.
Thereafter, again petitioner Vivek Mahajan asked her to of work online and told her that she would earn in lakhs by getting nude during video calls. However, the victim rt refused to do the said work and told him that she had come just for the job of receptionist on repeated requests of Vandana Mahajan. When the victim strongly objected and tried to move out of the room, Vivek Mahajan gripped her with force and wrongfully confined her with ulterior motive. The victim tried to escape from the clutches of Vivek Mahajan and cried 3-4 times, but since none was present outside the room, no one could listen her cries and Vivek Mahajan forcibly committed rape with the victim against her will & consent. Consequently, FIR as detailed hereinabove came to be registered against the petitioners.
4. The instant petitions have been filed by the petitioners on the ground that they are innocent and ::: Downloaded on - 16/09/2023 20:33:42 :::CIS 5 have been falsely implicated in the present case. Learned .
Senior counsel for the petitioners submitted that the investigation of the case is complete and no recovery is to be effected from the petitioners, hence, it is prayed that the petitioners be enlarged on bail.
of
5. Per contra, the learned Additional Advocate General has opposed the application on the ground that rt the petitioners are involved in a serious offence and keeping in view the gravity of the offence, they are not entitled to be released on bail.
6. It is not in dispute that the petitioners have been joining the investigation as and when called by the Investigating Officer. The law with respect to grant of bail is now well settled. In Sanjay Chandra Vs. Central Bureau of Investigation, (2012) 1 Supreme Court Cases 49, it has been held that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail and that every man is deemed to be innocent until duly tried and duly found guilty. Relevant portion of the aforesaid judgment reads as under:-
::: Downloaded on - 16/09/2023 20:33:42 :::CIS 6"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 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 of 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 rt 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."
7. In Manoranjana Sinh alias Gupta Vs. CBI, (2017) 5 SCC 218, the Hon'ble Apex Court reiterated the ::: Downloaded on - 16/09/2023 20:33:42 :::CIS 7 decision rendered in Sanjay Chandra's case (supra) by .
holding as under:-
"16. This Court in Sanjay Chandra Vs. Central Bureau of Investigation (2012) 1 SCC 40, 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 of 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 rt innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive nor 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 a 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 and 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 that 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."::: Downloaded on - 16/09/2023 20:33:42 :::CIS 8
8. Similar reiteration of law can be found in .
Dataram Singh Vs. State of Uttar Pradesh & Another, (2018) 3 SCC 22, wherein it has been held that a person is believed to be innocent until found guilty and the grant of bail is the general rule and putting a person in of jail or in a prison or in a correction home is an exception.
Relevant portion of the aforesaid judgment reads as under:-
rt "1. 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.
..................
4. 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 ::: Downloaded on - 16/09/2023 20:33:42 :::CIS 9 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."
9. In the instant case, the investigation revealed that as per the call details record, no conversation was of found between the victim and petitioner Vivek Mahajan and the victim has not been cooperating with the rt Investigating Agency. Moreover, a cross FIR has been registered by petitioner Vivek Mahajan against the victim on the allegations that the victim alongwith her husband tried to blackmail him for extortion of money and tried to involve him in a honey trap. Petitioner Vivek Mahajan had further made allegation that the victim had threatened him to implicate him in a false case of rape and the investigation in the aforesaid FIR is still in progress. As per the status report, chargesheet has been filed against petitioner Vivek Mahajan before the learned trial Court on 14.08.2023, but, at this stage, no evidence has been collected against the petitioner Vandana Mahajan during the investigation. The learned Additional Advocate General, on instructions received from ASI Duni Chand, ::: Downloaded on - 16/09/2023 20:33:42 :::CIS 10 P.S. Nalagarh, District Solan, H.P., has submitted that the .
investigation is complete and nothing remains to be recovered from the petitioners. He further submitted that custodial interrogation of the petitioners is not required.
Furthermore, there is no evidence on record to suggest of that the petitioners will tamper with the prosecution evidence, if released on bail and there is also nothing on rt record to suggest that the petitioners will abscond and flee from justice, if enlarged on bail.
10. Therefore, in view of the facts and circumstances of the case, since the investigation in the case is complete and nothing remains to be recovered from the petitioners, coupled with the fact that their custodial interrogation is not required, the petitioners deserve to be released on bail in case F.I.R. No. 172/2023, dated 14.06.2023, under Sections 376, 506 and 34 of the Indian Penal Code, registered at Police Station Nalagarh, District Solan, H.P. Accordingly, the bail applications are allowed and the interim order dated 15.06.2023, is made absolute, subject to the following conditions:-
::: Downloaded on - 16/09/2023 20:33:42 :::CIS 11"(i) That the petitioners will appear before the Court and the Investigating Officer whenever required;
.
(ii) That they will not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing any facts to the Court or the police;
(iii) That they will not tamper with the prosecution evidence nor they will try to win over the prosecution of witnesses in any manner;
(iv) That they will not leave India without prior permission of the Court."
rt
11. Needless to say that the Investigating agency shall be at liberty to move this Court for cancellation of the bail, if any of the aforesaid conditions is violated by the petitioners.
(Sushil Kukreja)
September 14, 2023 Judge
(raman)
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