Himachal Pradesh High Court
Virender Chauhan vs State Of Himachal Pradesh on 26 October, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MP(M) No. 1838 of 2020 Reserved on : 14th October, 2020 Date of Decision:- 26th October, 2020 Virender Chauhan ...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. Dhananjay Sharma, Proxy Counsel, appearing vice Mr. Lalit Kumar Sehgal, Advocate.
For the respondent : Mr. Nand Lal Thakur, Addl. A.G., for the State.
Anoop Chitkara, Judge A stepfather, who is incarcerating upon his arrest for sexually harassing and fondling his 14 years old stepdaughter's privates, has come up before this Court seeking regular bail on the grounds that the victim spoke the tutored words of her mother, with whom the relations turned sour.
2. Based on a complaint, the Police arrested the petitioner allegedly on 17.5.2020, in FIR No.67 of 2020, dated 17.5.2020, registered under Sections 354A, 506 of Indian Penal Code, 1860, (IPC), and Sections 8 and 12 of the Protection of Children from Sexual Offices, Act, 2012 (POCSO Act), in Police Station, Paonta Sahib, District Sirmour, Himachal Pradesh, disclosing cognizable and non-bailable offences. Earlier, the petitioner had filed petitions under Section 439 CrPC before the concerned Sessions 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 26/10/2020 20:18:05 :::HCHP 2Judge. However, vide orders dated 8.6.2020, and 19.8.2020, Ld. Special Judge, Sirmour at Nahan, HP, dismissed the petitions, primarily because of the relationship between the accused and the victim and further that the accused would again be staying in the .
same house, where the victim resides, and it would put her in peril.
3. 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 and the status report do not reveal any criminal history.
4. Briefly, the allegations against the petitioner are that on 17.5.2020, the mother of the victim, claiming herself to be the second wife of the petitioner, informed through Child Help Line number to the Police wherein she leveled serious allegations against the stepfather of the victim. She stated that initially she was married in the year, 2002. Out of that wedding, she gave birth to two children, namely the victim who is now 14 years old and a son who is 15 years old. She further alleged that due to matrimonial discord, she had separated from her husband. After that, in January, 2020, she got married to the bail petitioner. Subsequent upon the marriage, she shifted to the house of the petitioner and also brought her children. She further alleged that for sometime, she found the victim to be perplexed and confused. She inquired from the victim about it, but she kept quite. However, on 16.5.2020, i.e. yesterday, after repeated persuasions, she revealed to the complainant that her stepfather was talking to her in a very indecent language and also fondled her privates on numerous occasions. She also pressed her breast and when she would ask him not to do so, then he threatened her to do away with her life and that of her mother. These allegations discloses cognizable and non-bailable offences, as such, the Police registered the FIR mentioned above and arrested the petitioner.
5. The Counsel for the petitioner submits that the petitioner was an practicing Advocate. However, in the year 2009, he suffered a brain hemorrhage and after that did not keep good health and even left the practice. He further referred to the annexures annexed with the petition showing that the petitioner had executed a Special Power of Attorney in favour of the mother of the victim and it was in January, ::: Downloaded on - 26/10/2020 20:18:05 :::HCHP 3 2020, when she informed the petitioner that she was a divorcee having two children. Referring to the petition, he further contended that once after entering into his house, the complainant started manhandling and maltreating the petitioner. Subsequently, on .
15.5.2020, the petitioner filed a complaint to Dy. Superintendent of Police against the mother of the victim. After two days of such complaint, the mother tutored the victim to file a false complaint with a view to grab the property ousting the petitioner and successfully ousted the accused upon his arrest. He further contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family.
6. 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:
7. 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. In 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 ::: Downloaded on - 26/10/2020 20:18:05 :::HCHP 4 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.
Pre-trial incarceration needs justification depending upon the offense's
8. 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 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.
9. Although the allegations of sexually harassing and fondling the privates of step daughter are to be prima facie treated as a gospel truth, but the counter allegations of sour relationships also get prima facie corroboration from the execution of a Special Power of Attorney on 20 th Dec 2019, in the name of the mother of the victim; notice dated 15th May 2020 for cancellation of Special Power of Attorney; and a complaint made to Dy. Superintendent of Police, Paonta Sahib, by the petitioner on 15 th May 2020 against the mother of the victim, seeking action for intimidating him and to do away his life. Given the sentence provided for the alleged offences coupled with the counter allegations, there is no justification to deny bail. To ensure that the victim does ::: Downloaded on - 26/10/2020 20:18:05 :::HCHP 5 not come in contact with the accused, appropriate conditions can be imposed to protect the victim.
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10. Given above, 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.
11. 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.
12. 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.
13. 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 ::: Downloaded on - 26/10/2020 20:18:05 :::HCHP 6 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.
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 ::: Downloaded on - 26/10/2020 20:18:05 :::HCHP 7 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 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.
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 ::: Downloaded on - 26/10/2020 20:18:05 :::HCHP 8 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.
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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 Investigation, 2018 All SCR (Crl.) 458).
o) The petitioner shall not stay in the building or locality, where the victim is currently residing or resides during the pendency of the trial. In case, he needs to enter such premises, then the petitioner shall always go and remain present only in the company of the local ward member or any gazetted officer, or any female Police official deputed by SHO of the concerned Police Station.
p) 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) The petitioner shall surrender all firearms along with ammunitions, if any, along with the arms license to the concerned authority within 30 days from today. However, subject to the provisions of the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back, in case of acquittal in this case.
r) 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.
s) 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.
::: Downloaded on - 26/10/2020 20:18:05 :::HCHP 914. 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.
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15. 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.
16. 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.
17. 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.
18. 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.
The SHO of the concerned Police Station or the Investigating Officer shall
19. arrange to send a copy of this order, preferably a soft copy, to the complainant and the victim, 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.
20. 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.
October 26, 2020 (KS) ::: Downloaded on - 26/10/2020 20:18:05 :::HCHP