Himachal Pradesh High Court
Ibrahim vs State Of Himachal Pradesh on 30 December, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr.M.P(M) No.1983 of 2022
Date of Decision: December 30, 2022
.
Ibrahim ...Petitioner.
Versus
State of Himachal Pradesh ..Respondent.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1
For the Petitioner: Mr.Rajesh Kumar Parmar, Advocate.
For the Respondent: Mr. Hemant Vaid, Additional Advocate
r General.
Vivek Singh Thakur, J.
By way of this petition, petitioner is seeking regular bail under Section 439 of the Code of Criminal Procedure (in short 'Cr.P.C.'), in case FIR No.34 of 2021, dated 5.3.2021, registered in Police Station Sadar, Shimla, H.P., under Sections 363, 366A, 370(4), 506, 201 and 120B of the Indian Penal Code (in short 'IPC').
2. The petitioner was arrested on 8.3.2021 and, after remaining in police custody, now he is in judicial custody.
3. Petitioner had approached this Court earlier also by filing applications for bail, being CRMPM No.609/2021, which was dismissed on 9.8.2021; CRMPM No.2082/2021, which was withdrawn on 7.12.2021; and CRMPM No.570 of 2022, which was dismissed on 12.05.2022, on merits, mainly on the ground that 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 30/12/2022 20:33:51 :::CIS 2after dismissal of earlier bail applications, petitioner had failed to point out change in circumstances thereafter as on date.
4. Status report(s) stand filed, wherein it is stated that .
on 5.3.2021 victim, aged about 15 years, who is studying in Class 9th, had left her home at 9.30 a.m. to attend her school i.e. Sanatan Dharam Senior Secondary School, Ganj Bazaar, Shimla, and when she did not return home in the evening, her father, on inquiry, had received information that on that day students were not called in the school. With aforesaid details, father of the victim had approached Police Station Sadar, Shimla, with suspicion that someone had abducted his daughter after alluring and misleading her.
5. It is further stated in Status Report that on complaint of father of the victim, case under Section 363 IPC was registered and investigation started. During investigation, location of mobile number of victim was found in Haryana leading to the clue to the police that victim was travelling towards Delhi.
Whereupon, police party was sent to Delhi in search of victim and it was also found that victim was having too many talks on two mobile numbers (96398-21301 and 62382-27896), therefore, CDRs and location of those two numbers were also requisitioned.
6. Investigating Officer, on 6.3.2021, after reaching in Police Station Badarpur, Delhi, started investigation and found that last location of victim, on 5.3.2021 at about 8.19 p.m., was found at Panipat and thereafter her phone was found switched off. From CDRs of two mobile numbers, Investigating Officer had ::: Downloaded on - 30/12/2022 20:33:51 :::CIS 3 contacted on some mobile numbers, which were found in contact of these two mobile numbers and during this exercise, one mobile number 95606-42747 was found to be of one Jatin Malik, .
who, in response, informed the Investigating Officer that he is having a Maruti Car bearing registration No.DL9CAP-3819 and on 5.3.2021 he had gone to Ambala from Delhi to drop a passenger and at Ambala a girl had met him, who had disclosed that she was going to Delhi, whereupon, when he was taking that girl to Delhi alongwith him and had reached near Panipat, mobile phone of that girl had switched off and for that reason that girl had contacted someone through his (Jatin's) mobile and the person, with whom she had talked, had disclosed his name to him (Jatin) as Zuber and further that Zuber had told him that one boy will send him location from mobile number 96671-56859 and had asked him (Jatin) to drop the victim on that location and thereafter on receiving location of Badarpur, Delhi from the aforesaid number, he had dropped the girl at Badarpur NTPC Chowk at about 10.30 p.m. on 5.3.2021, wherefrom a boy had received her.
7. During investigation, it was revealed that the boy, who had sent the location, was the petitioner (Ibrahim) residing at Badarpur in a room rented in a building known as 'Akash'.
During search for the petitioner, his room was found locked and it came in notice that he was hiding in some other house in the room of his friend, wherefrom he was apprehended and taken to Badarpur Police Station and shown to Jatin, and Jatin had ::: Downloaded on - 30/12/2022 20:33:51 :::CIS 4 identified him the same boy to whom he had received the girl on 5.3.2021.
8. During interrogation, the petitioner had disclosed .
that on 5.3.2021 he had received calls from Zuber and Nazim @ Sameer, the boys belonging to his village, who were working with him earlier at Delhi, but on that date Zuber was at Chennai, whereas, Nazim @ Sameer was in Kerala. He had further revealed that both of them had informed him that one 'X' named girl (victim) would come in some vehicle at Badarpur NTPC Gate and they had asked him to take her to his quarter and further that on request of these two persons he had taken the victim from Badarpur NTPC Gate to his room in 'Akash' building and had kept her in his room on 5.3.2021 and 6.3.2021 and, on 7.3.2021, he had taken the victim to Dhakia and as he was anticipating that police would be in his search, therefore, he was not sleeping in his room but was staying with his friend. The petitioner had also disclosed that victim, at the time of investigation, was in Dhakia and his elder brother Istiyaak, serving at Delhi and living with him in the same room, had also gone to Village Sahaspur near Dhakia and on his message he would come to Badarpur alongwith victim. The petitioner had also disclosed that Nazim @ Sameer was intending to marry victim, and Nazim @ Sameer and Zuber had called victim to Delhi, but Zuber was at that time at Chennai and Nazim @ Sameer was in Kerala and, therefore, victim was housed with him.
::: Downloaded on - 30/12/2022 20:33:51 :::CIS 59. On 8.3.2021 at about 9.30 a.m. Istiyaak (brother of petitioner Ibrahim) and Nasrin, on message, had brought victim to Police Station Badarpur, Delhi, where she was identified by her .
father and thereafter victim had identified the places where she was dropped from the car and also the room of petitioner Ibrahim.
10. On 10.3.2021, statement of victim was also recorded under Section 164 Cr.P.C. and considering the circumstances revealed, during investigation and from statement of victim, Sections 366A, 370(4), 506 and 120B IPC were also added in the case. As per record age of victim is 14 years 11 months.
11. During investigation, it has also come that Nazim @ Sameer had been in contact of victim since last five months, after sending her friend requests on FACEBOOK and thereafter they were in regular contact of the victim and it has been contended that the petitioner was an active participant in commission of offence as he received the victim at Badarpur from Taxi Driver and thereafter kept her in his room and managed her shifting from Badarpur to the house of Ivad and Nasrin.
12. Victim, in her statement, recorded under Section 164 Cr.P.C., has stated that she had received a friendship request on the FACEBOOK and she was receiving repeated messages from Zuber with threat that in case she did not come, he would kill her and her family members and would upload her photographs on FACEBOOK, and as Zuber was forcing her daily through such ::: Downloaded on - 30/12/2022 20:33:51 :::CIS 6 messages, she left her home for Delhi and she was guided to board bus of Delhi and to alight from the bus at the place where the bus would stop. She has further stated that Zuber had .
booked a taxi from Ambala to Badarpur and that Zuber was not messaging her from his own phone but from the phone of another boy namely Sameer, i.e. Nazim and when Nazim came to know that Zuber was doing wrong with her then he made a call to his friend Ibrahim (petitioner) and asked him to receive her, whereupon Ibrahim came to the place where taxi had to arrive wherefrom she was taken by Ibrahim to his house and during that period Ibrahim had apprised her about the wrong which was going to occur with her. She has further stated that Nazim and Ibrahim had asked mobile number of her father so that they could take her to her parents and when Zuber came to know that she was staying with Ibrahim he started threatening both of them and forced them not to send her back with assertion that wherever she was, he would be coming to take her alongwith him to Kerala. She has stated that H.P. Police traced the number of Zuber and when he came to know about it, he made a call to one girl namely Sonali and narrated a false story to her that victim left her home because victim's father used to beat and coerce her, but Sonali reported it to the police and made a statement to the police, disclosing the address where she (victim) was staying and police traced the number of Ibrahim and on next day Ibrahim left her in the house of Nazim and thereafter H.P. Police took Ibrahim with them and inquired about her ::: Downloaded on - 30/12/2022 20:33:51 :::CIS 7 whereabouts, whereupon Ibrahim disclosed her address and brother of Ibrahim brought her to the police where her father was also present.
.
13. Learned counsel for the petitioner has contended that petitioner was not having any role in alluring or enticing the victim to leave her home. He was asked by his friend Nazim to help the victim by making arrangement for her stay as she was alone having no shelter in Delhi but he was not knowing anything about the plan either of Zuber or of Nazim. He has further submitted that Zuber or Nazim would be able to disclose the real facts but the petitioner had come into picture only when he received the victim and arranged for her stay, on their request.
It has been further submitted that the petitioner kept the victim safely, firstly at his room and thereafter when he again and again asked Nazim to relieve him from the responsibility of the victim, Nazim had asked him to take the victim to his sister's house and accordingly petitioner had acted and handed over the victim to Nasrin, sister of Nazim, for safety of the victim as well as to relieve himself from responsibility of the victim.
14. Learned counsel for the petitioner submits that petitioner was acting innocently and was not having any knowledge about the conspiracy, if any, between Nazim and Zuber and he knew the facts not more than the facts and circumstances disclosed to him either by Nazim or Zuber or victim and on smelling something wrong he was repeatedly calling Zuber and Nazim to relieve him from responsibility of the ::: Downloaded on - 30/12/2022 20:33:51 :::CIS 8 victim and ultimately he had handed over the victim to sister of Nazim.
15. Learned Additional Advocate General has submitted .
that in earlier bail applications also similarly plea was made on behalf of the petitioner and those bail applications have been dismissed by rejecting plea of the petitioner.
16. Reiterating the stand of the State taken in earlier bail applications of the petitioner, learned Additional Advocate General has submitted that Call Detail Record (CDR) of accused Nazim, Zuber and Ibrahim establishes that petitioner had not only facilitated the commission of offence but also was an active party in trafficking the victim from one place to other. To establish participation of petitioner in conspiracy to commit the offence, he has referred to CDR from 5.3.2021 to 6.3.2021, indicating that petitioner was in continuous contact with main accused Mohammed Nazim and Zuber and during this period there are more than 100 calls between them. It has been further submitted that there was a big conspiracy to traffic the victim to Dubai or any other foreign country via Kerala or otherwise, wherein petitioner has active role and, therefore, he does not deserve to be enlarged on bail as on his release there is every possibility of his fleeing from justice and it would be very difficult to apprehend him. So, the learned Additional Advocate General has prayed for dismissal of the bail application.
17. Learned Additional Advocate General has submitted that Zuber was calling/messaging the petitioner from the phone ::: Downloaded on - 30/12/2022 20:33:51 :::CIS 9 of Nazim @ Sameer and, therefore, impression of the victim, as given by Nazim or by the petitioner, is farce. He has submitted that all of them have connived with each other to force the .
victim to leave her home and then to transmit her to Dubai and it is case of human trafficking by Zuber and Nazir with the help of others involved in the entire episode and petitioner Ibrahim is one of such persons having an active role in the commission of offence.
18. It has been pointed out by learned Additional Advocate General that though petitioner, cleverly, has succeeded to create an impression to the victim that she was helped by him and Nazim but from statement of victim, recorded under Section 164 Cr.P.C., it is evident that they were also active partners in commission of offence because it has come in statement of victim that Juber was contacting her through Mobile phone of Nazim @ Sameer and further after knowing that Police had reached Delhi and traced Ibrahim on his mobile, instead of handing over the victim to the Police, petitioner took her to village of Nazim's sister and hid himself. Had he been innocent and helping the girl, he would have come forward and would have handed over the girl to the police and father of the girl.
19. Learned Additional Advocate General has submitted that the petitioner alongwith main accused has planned in such a clever way that physically it is not visible that they have any role in the commission of offence, as they managed to believe leaving of house by the girl to be an act committed by her at her ::: Downloaded on - 30/12/2022 20:33:51 :::CIS 10 own volition and when the girl reached Ambala, they managed taxi of a third person for her arrival at Delhi and the petitioner came in picture only at Delhi at the time of receiving the girl, .
leaving no evidence available to disclose the role of petitioner and other co-accused in trafficking the girl from Shimla to Delhi and their plan to traffic her to a foreign country could not be materialized for minority of the girl. It has further been submitted that had the petitioner been acting bonafide he would not have hidden himself in the room of his friend on account of fear of raid by the police in his room.
r According to learned Additional Advocate General, petitioner's conduct reflects that he is one of main conspirators and knowing the result of his participation in the commission of offence.
20. Learned counsel for the petitioner has submitted that at the time of filing of previous bail applications, statement of victim was not recorded in the Court, but there was FIR, statements of victim, her father and other witnesses recorded under Section 161 Cr.P.C. and statement of victim recorded under Section 164 Cr.P.C. Whereas, now after dismissal of previous bail applications, on 23.06.2022 and 01.08.2022 statements of father and victim have been recorded as PW.1 and PW.2 respectively. In her statement, victim has identified the petitioner as a person, who took her in his room where she stayed till 06.03.2021 and, thereafter, took her to the house of sister of Sameer/Nazim where sister of Sameer initially had refused to keep her, but after discussion between Ibrahim and ::: Downloaded on - 30/12/2022 20:33:51 :::CIS 11 Nazim, her husband Ivad had allowed the victim to stay there.
He has referred endorsement of version of the petitioner by the victim in her cross-examination that Ibrahim had inquired about .
phone number of her father, so as to enable them to take her to her father. It has been further submitted that petitioner was not knowing that victim was minor and he was acting under instructions of his friends for providing shelter to a girl, who was told by the petitioner coming to Delhi at her own and as he was not knowing the entire episode, as alleged by the victim lateron, which was not disclosed by her earlier and, therefore, he was innocently helping a girl in need of help and for her safety he was worried and was making calls to Nazim and Sameer and ultimately had taken her to house of sister of Sameer for making her stay comfortable with a family having woman. It has further been submitted that now victim and her father have been examined and, therefore, there is no possibility of dissuading or threatening or influencing the witnesses/victim and case of the petitioner can be considered differently than Nazim and Sameer against whom victim has levelled allegations of compelling her to leave parental house. Whereas, no such allegation has been levelled by her against the petitioner because petitioner was nowhere in the picture before arrival of the victim at Delhi and, thereafter, also he acted in good faith under instructions of his friends bonafide for helping a girl in need and, therefore, it has been contended that now petitioner deserves to be enlarged on bail.
::: Downloaded on - 30/12/2022 20:33:51 :::CIS 1221. It has been submitted on behalf of petitioner that though veracity of rival contentions of parties, is to be assessed by the Trial Court, however, in view of material on record, .
petitioner deserves to be treated differently than the main accused Nazim alias Sameer and Zuber.
22. It has been further submitted on behalf of the petitioner that petitioner is ready and willing to abide by any condition to assure his appearance before the Court during trial after his enlargement on bail and is also ready to furnish local surety as well as surety of his relative.
23. Without commenting upon the merits of the case, considering entire facts and circumstances brought before me and taking into consideration the factors and parameters required to be considered at the time of considering bail application, as propounded by this Court including the Supreme Court, I am of the opinion that, at this stage, petitioner may be enlarged on bail.
24. Accordingly, present petition is allowed and petitioner is directed to be enlarged on bail, subject to his furnishing personal bond in the sum of `2,00,000/- with two sureties, one of which shall be local surety and the other shall be of relative of the petitioner as undertaken by the petitioner, each in the like amount, to the satisfaction of the trial Court/Special Judge, upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated ::: Downloaded on - 30/12/2022 20:33:51 :::CIS 13 hereinafter, so as to assure presence of petitioner/accused at the time of trial:-
(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the .
present case as and when required;
(ii) that the petitioner shall 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 such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;
(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;
(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;
(v) that the petitioner shall not misuse his liberty in any manner;
(vi) that the petitioner shall not jump over the bail;
(vii) that in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by prosecution;
(viii) that the petitioner shall not leave the territory of India without prior permission; and
(ix) that the petitioner shall inform the Police/Court his contact number and shall keep on informing about change in address and contact number, if any, in future.
25. It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any ::: Downloaded on - 30/12/2022 20:33:51 :::CIS 14 other or further condition on the petitioner as it may deem necessary in the interest of justice.
26. In case the petitioner violates any condition imposed .
upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.
27. Trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc.
Instructions/93-IV.7139 dated 18.03.2013.
28. Observations made in this petition hereinbefore, shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.
29. Petition is disposed of in aforesaid terms.
30. Copy dasti.
31. Petitioner is permitted to produce/use copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the trial Court/Special Judge, and the said Court shall not insist for production of a certified copy but if required, may verify it from Website of the High Court.
(Vivek Singh Thakur), Judge.
December 30, 2022 (Purohit) ::: Downloaded on - 30/12/2022 20:33:51 :::CIS