Himachal Pradesh High Court
Reserved On 12.11.2024 vs State Of Himachal Pradesh on 21 November, 2024
Author: Sushil Kukreja
Bench: Sushil Kukreja
1 ( 2024:HHC:11884 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 1905 of 2024 Reserved on 12.11.2024 Date of Decision: 21 .11.2024 _________________________________________________ Rajak Mohammad ....Petitioner Versus State of Himachal Pradesh ...Respondent _________________________________________________ Coram Hon'ble Mr. Justice Sushil Kukreja, Judge Whether approved for reporting?1 ________________________________________________ For the petitioner: Mr. N.K. Thakur, Senior Advocate with Mr. Karan Veer Singh, Advocate.
For the respondent:Mr. Jitender Sharma, Mr. Navlesh Verma, Additional Advocate General with Mr. Gautam Sood and Ms. Niyati Thakur, Deputy Advocates General.
________________________________________________ Sushil Kukreja, Judge The instant bail application under Section 483 of Bhartiya Nagrik Suraksha Sanhita, 2023 (for short "BNSS") has been filed by the petitioner for grant of bail in case FIR No. 38/2023, dated 10.05.2023, under Sections 354-A(1)(i) & 376 of the Indian Penal Code (for short "IPC"), Section 6 of the Protection of Children from Sexual Offences Act, 2012
11. Whether reporters of Local Papers may be allowed to see the judgment?
2 ( 2024:HHC:11884 ) (for short "POCSO Act") and Section 67(B) of the Information Technology Act, 2000 (for short "IT Act"), registered at Police Station Tissa, District Chamba, H.P.
2. Briefly stated the facts of the case, as per the status report filed by the respondent-State, are that on 10.05.2023, the complainant lodged a written complaint before the police, alleging therein that for the last two days, a video of his daughter (the victim), who was a student of 10+2, had gone viral and the said video had been made viral by Rajak Mohammad (petitioner herein), who was a driver by profession. He allured the victim and exploited her on the pretext of giving her lift in his car. When the complainant came to know about this, he warned the petitioner, but he did not mend his ways. On the basis of the said complaint, the police registered a case against the petitioner. During the course of investigation, on 15.05.2023, the statement of the victim under Section 161 Cr. P.C. was recorded, wherein, she stated that in the year 2021, during lockdown, when she alongwith her village sisters (names withheld) had gone to Tissa Hospital and was returning from Bhanjradu market, the 3 ( 2024:HHC:11884 ) grand father of her village sisters had booked the taxi of the petitioner for their return to home. Thereafter, the petitioner started giving her lift from home to school and back. After 7-8 days, he took her mobile number from her facebook ID. She further stated that the petitioner initially disclosed his name as Raju and also told her that he was from the same caste, as of the victim. The petitioner also took the password of the Facebook ID of the victim. The petitioner used to send messages from his Facebook ID to the Facebook ID of the victim and then used to give reply himself and used to send screenshots of the chats to her Facebook ID. In the year, 2021, petitioner had made her video footage viral, in which, he was smoking, oozing out smoke on her face and kissing her. The petitioner used to talk with her on her parents' phone, as she was using the phone of her parents during the lockdown for online classes. She came to know about the real name of the petitioner only when her friend told her about the same. As per the victim, the petitioner had committed sexual intercourse with her three times. First time, the petitioner had committed sexual intercourse with her at 4 ( 2024:HHC:11884 ) place Saloga-II, second time at place Helipad Bhanjraru and third time, the petitioner committed sexual intercourse with her in the year 2022 at Sanwal road. The petitioner also threatened her that he would make her video viral and would not allow her to be of anyone else. Consequently, FIR as detailed above, came to be registered against the petitioner. The petitioner was searched at different places, but he absconded. On 20.06.2023, JMFC, Tissa issued non-bailable warrants against him, however, he could not be arrested. On 01.08.2023, JMFC, Tissa, declared him proclaimed offender. Thereafter, the petitioner approached this Court by filing Cr. MP(M) No. 2000/2023 and he was granted interim bail. However, vide order dated 29.09.2023, his anticipatory bail was dismissed and interim protection granted to him was withdrawn, as he was not cooperating with the Investigating Agency and on 11.10.2023, he was arrested.
3. The bail application has been filed by the petitioner on the ground that he is innocent and has been falsely implicated in the present case. The learned counsel for the petitioner contended that the petitioner is in judicial 5 ( 2024:HHC:11884 ) custody for the last about one year and there is no likelihood of conclusion of trial in near future, as out of the total 29 witnesses cited by the prosecution, till date only 05 witnesses has been examined by the prosecution, as such, he is required to be released on bail.
4. Per contra, the learned Additional Advocate General opposed the bail application on the ground that keeping in view the gravity of the offence alleged to have been committed by the petitioner, he is not entitled to be enlarged on bail.
5. I have heard learned counsel for the petitioner as well as the learned Additional Advocate General and also gone through the material available on record.
6. The law with respect to the grant of bail is well settled. It has been held by the Hon'ble Supreme Court in a catena of judgments that the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. At the stage of assessing whether a case is fit for the grant of bail, 6 ( 2024:HHC:11884 ) the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused sub-serves the purpose of the criminal justice system. In Chaman Lal Vs. State of U.P. and Another, (2004) 7 SCC 525, the Apex Court has laid down requisite factors for consideration of bail i.e., (i) nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant, and (iii) prima facie satisfaction of the court in support of the charge.
7. In Kalyan Chandra Sarkar Vs Rajesh Ranjan alias Pappu Yadav and Another, (2004) 7 SCC 528, the Hon'ble Apex Court has held that the Court granting bail should exercise its discretion in a judicious manner and not 7 ( 2024:HHC:11884 ) as a matter of course. The relevant portion of the aforesaid judgment reads as under:-
"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter or course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge.
8. The Hon'ble Apex Court referred to the factors to be borne in mind while considering an application for bail in Prasanta Kumar Sarkar vs Ashis Chatterjee and another, (2010) 14 SCC 496 and the said factors are as follows:
9...............
"(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;
8 ( 2024:HHC:11884 )
(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.
..........."
9. In Central Bureau of Investigation Vs. V. Vijay Sai Reddy, (2013) 7 SCC 452, the Apex Court has reiterated the principle by observing as follows:-
"34. While granting bail, the court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the legislature has used the words reasonable grounds for believing instead of the evidence which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."
10. In Virupakshappa Gouda Vs. The State of Karnataka, AIR 2017 SC 1685, the Apex Court held that an order of bail cannot be granted in an arbitrary or fanciful 9 ( 2024:HHC:11884 ) manner. The relevant portion of the aforesaid judgment reads as under:-
"18. From the aforesaid principles, it is quite clear that an order of bail cannot be granted in an arbitrary or fanciful manner. In this context, we may, with profit, reproduce a passage from Neeru Yadav Vs. State of Uttar Pradesh, wherein the Court setting aside an order granting bail observed:-
"The issue that is presented before us is whether this Court can annul the order passed by the High Court and curtail the liberty of the 2nd respondent. We are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bed rock of constitutional right and accentuated further on human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilized society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be paralysed and immobilized. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. The society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability from the member, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, when an individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound to follow. At that stage, the Court has a duty. It cannot abandon its sacrosanct obligation and pass an order at
10 ( 2024:HHC:11884 ) its own whim or caprice. It has to be guided by the established parameters of law."
11. In Anil Kumar Yadav Vs. State (NCT) of Delhi, AIR 2017 SC 5398, the Apex Court by relying upon its various judgments held that for ensuring the fair trial, witnesses must be in a position to freely depose without fear. The relevant portion of the aforesaid judgment reads as under:-
"29. In the present case, the trial is at a very crucial stage. The trial court is yet to record the testimony of material witnesses including the complainant as well as all the material witnesses. The trial has commenced and the trial is said to be posted for 04.12.2017. For ensuring the fair trial, witnesses must be in a position to freely depose without fear. In the facts and circumstances of the case, we are convinced that a fair trial can be ensured only if the appellants are not enlarged on bail.
30. We are conscious of the fact that the appellants are only under trials and their liberty is also a relevant consideration. But equally important is to consider the impact of their release on bail on the prosecution witnesses and also its impact on society. In order to ensure that during trial the material witnesses depose without fear and justice being done to the society, a balance has to be struck. Referring to Masroor v. State of Uttar Pradesh and another (2009) 14 SCC 286 and other cases, in State of Bihar v. Rajballav Prasad alias Rajballav Prasad Yadav alias Rajballabh Yadav (2017) 2 SCC 178, this Court held as under:-
"26. We are conscious of the fact that the respon- dent is only an undertrial and his liberty is also a relevant consideration. However, equally important consideration is the interest of the society and fair trial of the case. Thus, undoubtedly the courts have to adopt a liberal approach while considering bail applications of the accused persons. However, in a 11 ( 2024:HHC:11884 ) given case, if it is found that there is a possibility of interdicting fair trial by the accused if released on bail, this public interest of fair trial would outweigh the personal interest of the accused while under- taking the task of balancing the liberty of the ac- cused on the one hand and interest of the society to have a fair trial on the other hand. When the wit- nesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the convic- tion. It shakes public confidence in the criminal jus- tice-delivery system. It is this need for larger public interest to ensure that criminal justice-delivery sys- tem works efficiently, smoothly and in a fair manner that has to be given prime importance in such situ- ations. After all, if there is a threat to fair trial be- cause of intimidation of witnesses, etc., that would happen because of wrongdoing of the accused himself, and the consequences thereof, he has to suffer........" [underlying added]"
12. In Mahipal vs. Rajesh Kumar @ Polia and another, (2020) 2 SCC 118, the Hon'ble Apex Court held that the power to grant bail under Section 439 of Cr.P.C. is of a wide amplitude. Though the grant of bail involves the exercise of discretionary power of the Court, it has to be exercised in a judicious manner and not as a matter of course. In the said case, the guiding factors for exercise of power to grant bail as held in Ram Govind Upadhyay vs. Sudarshan Singh (2002) 3 SCC 598, were referred, which are as follows:-
"11.............
12 ( 2024:HHC:11884 )
3. Grant of bail though being a discretionary order but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case...The nature of the offence is one of the basic considerations for the grant of bail - more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.
4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture, though however, the same are only illustrative and not exhaustive, neither there can be any. The considerations being:
(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.
(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.
(c) While it is not expected to have the entire evidence establishing the guilt of the Accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.
(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be (2002) 3 SCC 598 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."
13. In view of the above stated authoritative pronouncement of law laid down by the Apex Court, coming to the facts of the case on hand. On the perusal of the entire 13 ( 2024:HHC:11884 ) material available on record, prima facie it is revealed that the allegations against the petitioner are very serious in nature as he had allegedly committed sexual intercourse with the victim thrice, who was a minor, aged about 16 years after blackmailing her that he would make her video viral.
14. It may be pertinent to mention here that the trial against the petitioner has commenced and out of total 29 witnesses cited by the prosecution, 05 witnesses, including the prosecutrix and her mother, have been examined and the trial is said to be posted for 29th & 30th November, 2024 for the remaining evidence of the prosecution.
15. The victim appeared in the witness box as PW-2 and specifically deposed that firstly the accused/petitioner committed sexual intercourse with her at place Sakloga-II, secondly at place Helipad Bhanjraru and thirdly at Sanwal Road. She further deposed that second and third sexual intercourse was committed by the accused with her in his vehicle. She also deposed that the accused had concealed his identity by disclosing his name as Raju, whereas, his real name was Rajak Mohammad. She also deposed that in the 14 ( 2024:HHC:11884 ) year 2021, the accused had made a video of the footage viral when he was smoking, oozing out smoke on her face and kissing her in his vehicle.
16. PW-3, Panchayat Secretary, Gram Panchayat Padhar, produced on record copy of Parivar Register, Ext. P-2/PW-3 and certificate, Ext. P-3/PW-3. PW-4, Head Master of the concerned school deposed that upon application moved by the police, he issued birth certificate, Ext. P-2/PW- 4, age certificate, Ext. P-3/PW-4 and abstract of the admission and withdrawal register, Ext. P-4/PW-4. In all the aforesaid documents, date of the victim has been mentioned as 10.08.2006.
17. Learned counsel for the petitioner contended that the petitioner has been implicated in a false case, as he had not committed any sexual intercourse with the victim. He also contended that real and actual date of birth of the victim has not been brought on record and the date of birth produced by the Investigating Agency is from the school record and Parivar Register and not from the record of Registrar (Births and Deaths) as such the same cannot be relied upon.
15 ( 2024:HHC:11884 ) However, this contention of learned counsel for the petitioner is devoid of any force, as prima facie from the perusal of documents which are available on record, the date of birth of the victim has been mentioned as 10.08.2006, meaning thereby that at the time of commission of the alleged offence, she was 16 years and 09 months of age. The contention of learned counsel for the petitioner that in the absence of the production of the birth certificate of the victim from the Registrar (Births and Deaths),the copy of Parivar Register and school record cannot be relied upon, can not be taken into consideration at the stage of deciding the present bail application, as the same would be considered during the course of the trial by the learned trial Court.
18. In view of the statement of the victim recorded before the learned trial Court and also in view of the other material available on record, at this stage, it cannot be said that the petitioner has been implicated in a false case, as contended by learned counsel for the petitioner.
19. Thus, from the perusal of the statement of the victim as well as other record, prima facie, the nature of the 16 ( 2024:HHC:11884 ) allegations levelled against the petitioner are serious and mere fact that the petitioner remained in custody for the last about one year is no ground to grant him bail. Moreover, the charge-sheet has been filed on 29.11.2023 and the trial has commenced, therefore, in order to ensure fair trial, the petitioner does not deserve to be released on bail as in the eventuality of his release on bail, he may tamper with the prosecution evidence. For ensuring the fair trial, witnesses must be in a position to freely depose without fear. In the facts and circumstances of the case,a fair trial can be ensured only if the petitioner is not enlarged on bail. Hence, keeping in view the nature and gravity of the offence, severity of punishment in the event of conviction and likelihood of tampering with the evidence and also in view of the larger public interest, the present is not a fit case to exercise the discretion under Section 483 of BNSS in favour of the petitioner.
20. Hence, for the reasons mentioned above, the bail application filed by the petitioner is dismissed. However, in the given facts and circumstances of the present case since 17 ( 2024:HHC:11884 ) the petitioner is behind the bars w.e.f. 11.10.2023, the learned trial Court is directed to conclude the trial as expeditiously as possible and in no event later than 31.03.2025.
21. Before parting with this order, it is hereby clarified that the aforesaid observations made in this order, have been made only for the purpose of considering the present bail application. Therefore, the same shall not come in the way of the trial court at the time of the trial and the trial Court concerned shall not be influenced by the observations made hereinabove.
( Sushil Kukreja ) Judge November 21, 2024 (raman)