Himachal Pradesh High Court
Bobby @ Babli vs State Of Himachal Pradesh on 2 November, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MP(M) No. 1908 of 2020
Date of Decision:- 2nd November, 2020
Bobby @ Babli ...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. Rajiv Jiwan, Senior Advocate with Mr. Ajit Sharma,
Advocate.
For the respondent : Mr. Nand Lal Thakur, Addl. A.G., Ms. Divya Sood, Dy. A.G.
and Mr. Ram Lal Thakur, Asstt. A.G., for the State.
COURT PROCEEDINGS CONVENED THROUGH VIDEO
CONFERENCE
Anoop Chitkara, Judge
The petitioner (brother of sister-in-law of the victim), who at that time was just 20 years of age and now is in judicial incarceration, on being arraigned as an accused, in FIR No.144 of 2015, dated 24.12.2015, registered under Sections 363, 366 and 376 of the Indian Penal Code, 1860 and under Section 4 of the protection of Children from Sexual Offences Act, 2012, in the file of Police Station, BSL Colony Sundernagar, District Mandi, H.P., disclosing cognizable and non-bailable offences, has come up before this Court under Section 439 of the Code of Criminal Procedure, seeking regular bail. Earlier, the petitioner had filed a petition under Section 439 Cr.PC before the concerned Sessions Judge. However, vide order dated 26.12.2019, learned Special Judge, Mandi, dismissed the same on the ground that the petitioner was arrested after a long search, being a proclaimed offender.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 03/11/2020 20:19:36 :::HCHP 22. Status report stands filed. I have seen the status report as well as the police file to the extent it was necessary for deciding the present petition, and the police file stands returned to the police official.
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3. I have heard learned counsel for the petitioner and the learned Additional Advocate General, for the respondent State.
4. 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 as also the status report do not reveal any criminal history of the bail petitioner.
5. Briefly, the allegations against the petitioner are that the father of the victim told the police that on 15.12.2015, his daughter went to school at 9:00 a.m., but instead of going to the school, the petitioner allured her and took her away to some unknown place under the pretext of marriage. On such complaint, the police initially registered the FIR under Sections 363 and 366 of the IPC. In September, 2019, the victim returned to her home. After that, the police took her to the Judicial Magistrate, who recorded her statement under Section 164 Cr.PC. In her statement, she stated that the accused-bail petitioner herein kept her with him for three years and continuously indulged in sexual intercourse with her. This led to addition of Section 376 IPC and Section 4 of the POCSO Act against the accused. The police arrested the accused on 27.9.2019 from Mohali, Punjab.
Mr. Rajiv Jiwan, learned counsel, submits that the petitioner is in judicial custody
6. since 27.9.2019 and now his incarceration has exceeded 13 months. Learned counsel for the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and his family.
7. Vide order dated 23.7.2020, this Court had rejected the previous bail petition (Cr.MP(M) No.316 of 2020), in terms of Paragraph 10, which reads as under:-
" The mere fact that the victim stands married may put her life and that of her husband to peril and high risk, in case the petitioner is released on bail, at this stage. Even if this Court imposes restriction that during the ::: Downloaded on - 03/11/2020 20:19:36 :::HCHP 3 period of bail, the petitioner shall stay at a considerable distance from the place of residence of the victim, the Court still cannot give a finding or assurance that the accused is not likely to visit the area where she is .
residing and put her life to any risk. On this ground alone, the petitioner is not entitled to bail. Resultantly, this petition is dismissed."
8. After that, the petitioner again filed another petition, which is supported by the affidavit of his brother, Shri Prem Lal and in Paragraph-12 of the bail petition, the petitioner has undertaken to abide by the stringent conditions and also assured this Court that he will not enter or roam around the residence of the victim and shall stay away from the place of the residence of the petitioner.
9. Vide order dated 30.10.2020, this Court had asked the State to ascertain the criminal antecedents of the petitioner and his family and also to ascertain the threat perception to the victim by deputing a female police official in civil dress for meeting her parents.
10. The State has filed a fresh status report, which is taken on record. As a sequel to the directions given on 30.10.2020, the SHO of the Police Station, BSL Colony, Sundernagar, mentions that the victim resided with her parents till 7.7.2020. After that, on attaining the age of majority, they got her married and now she is staying with her husband on the address mentioned in the status report. The SHO further mentions that they have not received any complaint from the victim or her family members of intimidation or threat by the petitioner or by someone else on his behalf. It further states that there is no criminal history of the petitioner and his family members.
11. While opposing the bail, the alternative contention on behalf of the State is that if this Court grants bail, such order must be subject to conditions, especially of not repeating the criminal activities.
ANALYSIS AND REASONING:
12. 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.
::: Downloaded on - 03/11/2020 20:19:36 :::HCHP 4In 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 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.
13. 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. However, while deciding bail applications, the ::: Downloaded on - 03/11/2020 20:19:36 :::HCHP 5 Courts should discuss evidence relevant only for determining bail. The difference in the order of bail and final judgment is similar to a sketch and a painting. However, some sketches are in detail and paintings with a few strokes.
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14. The allegations mentioned in the FIR reveal that on 15.12.2015, when the victim had left for her school by wearing the school uniform, then at 10:30 a.m., her cousin informed her father that the victim had not reached the school. On this, the complainant started frantic search of his daughter, but failed to trace her. Subsequently, he apprehended that the petitioner, who was brother of sister-in-law of the victim, might have allured her. After that, on 19.9.2019, the victim, on her own, returned home and the police recorded her statement under Section 154 Cr.PC. She stated that she stayed with the petitioner for three years in Mohali and during such stay they regularly indulged in coitus. On the face of these allegations, the victim would have got enormous chances to bring her forcible abduction to the notice of various people. But she kept quiet for three years. At least this conduct of the victim, entitles the petitioner for bail, especially when he has already gone incarceration for 13 months.
15. An analysis of entire evidence does not justify further incarceration of the accused, nor is going to achieve any significant purpose. Without commenting on the merits of the case, the stage of the investigation and the period of incarceration already undergone would make out a case for bail.
16. 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. In Sushila Aggarwal, (2020) 5 SCC 1, Para 92, the Constitutional bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions.
17. Given the above reasoning, the Court is granting bail to the petitioner, subject to strict terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.
::: Downloaded on - 03/11/2020 20:19:36 :::HCHP 618. Following the decision of this Court in Abhishek Kumar Singh v. State of HP, Cr.MP(M) No. 1017 of 2020, the petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. Ten thousand only .
(INR 10,000/-), and shall either furnish two sureties of a similar amount to the satisfaction of the Chief Judicial Magistrate/Ilaqua Magistrate/Duty Magistrate/the Court exercising jurisdiction over the concerned Police Station where FIR is registered, or the aforesaid personal bond and fixed deposit(s) for Rs. Ten thousand only (INR 10,000/-), made in favour of Additional Chief Judicial Magistrate/ Judicial Magistrate, Theog, District Shimla, H.P., from any of the banks where the stake of the State is more than 50%, or any of the stable private banks, e.g., HDFC Bank, ICICI Bank, Kotak Mahindra Bank, etc., with the clause of automatic renewal of principal, and liberty of the interest reverting to the linked account. Such a fixed deposit need not necessarily be made from the account of the petitioner. If such a fixed deposit is made manually, then the original receipt has to be deposited. If made online, then the copy attested by any Advocate has to be filed, and the depositor shall get the online liquidation disabled. It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. During the trial's pendency, it shall be open for the petitioner to apply for substitution of fixed deposit with surety bonds and vice-versa. Subject to the proceedings under S. 446 CrPC, if any, the entire amount of fixed deposit along with interest credited, if any, shall be endorsed/returned to the depositor(s). The Court shall have a lien over the deposits until discharged by substitution, and otherwise up to the expiry of the period mentioned under S. 437-A CrPC, 1973. The furnishing of the personal bonds shall be deemed acceptance of the following and all other stipulations, terms, and conditions of this bail order:
(a) The petitioner to give security to the concerned Court(s) for attendance. Once the trial begins, the petitioner 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 trial on each date, unless exempted, and in case of appeal, also promise to appear before the higher Court, in terms of Section 437-A CrPC.
::: Downloaded on - 03/11/2020 20:19:36 :::HCHP 7(b) 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).
(c) 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.
(d) The petitioner shall cooperate with the investigation at all further stages as may be required, and in the event of failure to do so, it will be open for the prosecution to seek cancellation of the bail granted by the present order.
(e) 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.
(f) In addition to standard modes of processing service of summons, the concerned Court may serve the accused through E-Mail (if any), and any instant messaging service such as WhatsApp, etc. (if any). [Hon'ble Supreme Court of India in Re Cognizance for Extension of Limitation, Suo Moto Writ Petition (C) No. 3/2020, I.A. No. 48461/2020- July 10, 2020].
(g) The concerned Court may also inform the accused about the issuance of bailable and non-bailable warrants through the modes mentioned above.
(h) In the first instance, the Court shall issue summons and may send such summons through SMS/ WhatsApp message/ E-Mail. (I) In case the petitioner fails to appear before the Court on the specified date, then the concerned Court may issue bailable warrants, and ::: Downloaded on - 03/11/2020 20:19:36 :::HCHP 8 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.
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(j) 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 to achieve the purpose.
(k) 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 alone 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.
(l) 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 also to the concerned Court.
(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) Considering the apprehension expressed by the learned counsel appearing for the respondent, the petitioner should stay far away from the place of occurrence while on bail - (Vikramsingh v. Central Bureau of ::: Downloaded on - 03/11/2020 20:19:36 :::HCHP 9 Investigation, 2018 All SCR (Crl.) 458).
(o) The petitioner shall neither stare, stalk, make any gestures, remarks, call, contact, message the victim, either physically, or through .
phone call or any other social media, nor roam around the victim's home. The petitioner shall not contact the victim.
(q) 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 and also after that in terms of Section 437-A of the CrPC.
(r) 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.
19. 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.
20. 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.
21. Consequently, the petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing bail bonds in the terms described above.
22. 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.
::: Downloaded on - 03/11/2020 20:19:36 :::HCHP 1023. 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.
24. 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, at the earliest. In case the victim notices stalking or any violation of this order, she may either inform the SHO of the concerned Police Station or write to the Trial Court or even to this Court.
25. 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 Dasti.
(Anoop Chitkara), Judge.
November 2, 2020 (KS) ::: Downloaded on - 03/11/2020 20:19:36 :::HCHP