Himachal Pradesh High Court
Gian Prakash vs State Of Himachal Pradesh on 3 January, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MP(M) No. 2427 of 2019
Judgment reserved on: 27.12.2019
Date of Decision: January 3 , 2020
Gian Prakash ...Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 Yes.
For the petitioner : Mr. Jyotirmay Bhatt, Advocate, for the petitioner.
For the respondent : Mr. Nand Lal Thakur, Additional Advocate General for the respondent/State.
Anoop Chitkara, Judge.
The petitioner, who is under arrest, on being arraigned as an accused in FIR Number 30 of 2019, dated Jul 17, 2019, registered under Sections 420, 365, 366, 342, 376 (2) G, 120-B, 506 of the Indian Penal Code, 1860, in the file of Women Police Station, Solan, Distt. Solan, H.P., disclosing non-bailable offences, has come up before this Court under Section 439 of the Code of Criminal Procedure, seeking regular bail.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 03/01/2020 20:37:42 :::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.
3. I have heard learned Counsel for the petitioner and the learned Additional Advocate General for the respondent-State.
4. FACTS:
The gist of the First Information Report and the investigation is as follows:
(a) The victim although a grown up woman, aged 44 years, under superstition, visited the petitioner-accused to get rid of the evil spirits from her son.
(b) The incident relates to Jul. 14, 2019, at a place Kunihar, District Solan, H.P. where accused Prakash Chand who is a sorcerer, runs his business of curing people. When the victim, (name withheld and hereinafter referred to as Victim-S) visited the sorceress alongwith her son then around 30 - 35 people were already present there. When her turn came, then she went inside the room where she noticed another woman (name withheld and hereinafter referred to as Victim-A) who was sitting in almost unconscious position with her small child. The sorceress told victim-S that there is possibility of some death in her house at any time and that she should not delay worship. He further warned her that she should not delay and that worship is required to be done the same night itself. He further assured her that since he had ::: Downloaded on - 03/01/2020 20:37:42 :::HCHP 3 asked the lady who was present inside the room in unconscious state (victim-A) to do some worship today, as .
such, there was nothing to worry. On such assurance the complainant (victim-S) agreed for the ritual. In the evening at around 7.30 p.m., the accused asked her to accompany him and took alongwith him Gian Chand (petitioner herein) who works as his aid. The other lady also started walking with her. Both the accused made the complainant (victim-S) and the other lady (victim-A) board the vehicle and accused Prakash Chand started driving the same. After that he said that they need to drive towards Rajgarh - Oachghat side. On the way the victim-S asked them to stop on as many as two - three occasions but they said that they are going to a cremation ground where the puja will be performed. They further crossed bridge towards Narag and after driving three - four kilometers they stopped the vehicle near a big house. After that both the accused dragged victim-S inside the house and later on the other lady (victim-A) also. After that Prakash Chand took the other lady (victim-A) to a different room and started committing rape upon her. Her child started crying whom the victim-S kept with her. After some time accused Praksh and Gian Chand also committed rape upon victim-S. She kept on crying to leave them but the accused intimidated them and threatened to do away with their lives and on this she kept quite. In the morning at 4 a.m., she asked the accused that she wanted to go out to ease herself but they did not allow her to go out. Upon that she jumped out of the window and ran away. After walking for some distance she reached a house where she noticed a man and a woman. She ::: Downloaded on - 03/01/2020 20:37:42 :::HCHP 4 (victim-S) disclosed every thing to them upon which they took her in their pickup-jeep to Oachghat and advised her to report .
the matter to the police. However, she was extremely scared and that on reaching her home, out of fear, she did not confide about this incident with anybody and kept quite. Then her conscious pricked her and she revealed the matter to the vice- president of the Panchayat and to her husband and consequently informed the police, leading to the registration of the instant FIR on Jul 17, 2019.
(b) Police also got recorded the statement of victim-S under Section 164 CrPC on Jul 18, 2019 and that of victim-A on Jul 21, 2019.
(c) The accused also filed bail applications before the Addl. Sessions Judge-I, Solan, District Solan, H.P., which were dismissed.
5. REASONING:
(a) The petitioner is in custody since Jul. 17, 2019.
(b) Whatever is the ultimate outcome of the allegations, cannot be commented at this stage. There is no provision in the Indian Penal Code, 1860 or in the Code of Criminal Proce-
dure, 1973, which creates a total bar for grant of bail.
(c) The investigation in the case is almost complete and challan stands filed in the Court having competent jurisdiction.
(d) In the status report, there is no mention of previous criminal history of the bail petitioner.
(e) The petitioner is a permanent resident of address mentioned in the memo of parties, therefore, his presence can always be secured.
::: Downloaded on - 03/01/2020 20:37:42 :::HCHP 5(f) In her statement under Section 164 CrPC the com- plainant (victim-S) made improvement by referring that she .
made phone call to her husband and told him about the rituals to be carried out during the night on which her husband asked her if she is alone or with somebody. She told her husband that there is another lady who is also present. On hearing this her husband permitted her to go ahead.
(g) Another major contradiction is that victim-A did not say that firstly the accused had taken victim-S to the building and after that they had come again and took her inside the build- ing. In fact, she stated that they got them alighted from the vehicle and had asked them to walk towards the old house at a fast pace so that people do not look at them. She further stated that victim-S had cooked food in the house. Further there is no purpose discussing the details of the incident, how-
ever, it is a case where judicial incarceration of the bail petitioner is not required at all.
(g) I am satisfied that no purpose will be served if the bail petitioner is continued in judicial custody.
6. Resultantly, the present petition is allowed. The petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing personal bond in the sum of Rs.10,000/- (rupees ten thousand), with two sureties in the like amount, to the satisfaction of the Trial Court/Sessions Judge/Additional Sessions Judge, Mandi, HP.
::: Downloaded on - 03/01/2020 20:37:42 :::HCHP 67. The Court executing the personal and surety bonds shall ascertain the identity of the bail-petitioner, his family members, and .
of sureties, through AADHAR Card, Pan Card, Ration Card, etc. and note phone numbers and other details, on the reverse page of the bonds.
8. The learned counsel for the petitioner-accused, as well as the attesting Officer, shall explain all conditions of this bail to the petitioner.
9. This Court is granting the bail subject to the conditions mentioned in this order. The petitioner undertakes to comply with all the directions given in this order and the furnishing of bail bonds by the petitioner in acceptance of all such conditions:
1. The petitioner undertakes not to contact the complainant and witnesses to threaten or browbeat them or to use any pressure tactics.
2. The petitioner shall neither influence nor try to control the investigating Officer, in any manner whatsoever.
3. The petitioner undertakes not to make any inducement threat or promise, directly or indirectly, to the investigating officer or any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or tamper with the evidence.
4. In case, the petitioner is arraigned as an accused of the commission of any offence, prescribing the sentence of imprisonment for more than 3 years, then within thirty days ::: Downloaded on - 03/01/2020 20:37:42 :::HCHP 7 of knowledge of such FIR, the petitioner shall intimate the SHO of the present police station, with all the details of the .
present FIR as well as the new FIR. In such a situation, it shall be open for the State to apply to this Court for cancellation of this bail, if it deems fit and proper.
5. The petitioner shall surrender all the firearms alongwith ammunition and arms licenses, if taken, before the authority which has given such permission, within 30 days from today.
6. The petitioner undertakes to attend the trial
10. In Kunal Kumar Tiwari vs. State of Bihar, 2017 AIR (SC) 5416, the Hon'ble Supreme Court had referred to Sub Clause (c) of Section 437(3) of the Code of Criminal Procedure and stated that conditions of bail cannot be arbitrary, fanciful and cannot extend beyond the ends of provisions. The Supreme Court held that the phrase "interest of justice" as used under Sub Clause (c) of Section 437(3) means "good administration of justice", or "advancing the trial process" and inclusion of broader meaning should be shunned because of purposive interpretation.
11. It is clarified that the present bail order is only with respect to the above mentioned FIR. It shall not be construed to be a blanket order of bail in all other cases, if any, registered against the petitioner.
::: Downloaded on - 03/01/2020 20:37:42 :::HCHP 812. The respondent-State shall inform the SHO of the concerned Police Station about the passing of this order.
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13. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.
14. Petition stands allowed in the aforesaid terms.
Copy dasti.
(Anoop Chitkara),
r Judge.
January 3 , 2020 (PK)
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