Himachal Pradesh High Court
_________________________________________________ vs State Of Himachal Pradesh on 29 September, 2023
Author: Sushil Kukreja
Bench: Sushil Kukreja
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MP(M) No.2000 of 2023 Reserved on 04.09.2023 Date of Decision: 29.09.2023 _________________________________________________ Rajak Mohammad ....Petitioner of Versus State of Himachal Pradesh ...Respondent _________________________________________________ rt Coram Hon'ble Mr. Justice Sushil Kukreja, Judge Whether approved for reporting?1 ________________________________________________ For the petitioner: Dr. Rakesh Kumar Parmar, Advocate.
For the respondent:
Mr. B.N. Sharma, Additional Advocate General.
________________________________________________ Sushil Kukreja, Judge The instant bail application has been filed by the petitioner under Section 438 of the Code of Criminal Procedure (Cr.P.C.) for grant of anticipatory bail, in the event of his arrest, 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 (for short, 'POCSO Act') and
1. Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 29/09/2023 20:39:10 :::CIS 2
Section 67(B) of the Information Technology Act (IT Act), .
registered at Police Station Tisa, 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 of before the police, alleging therein that for the last 2 days, a video of his daughter (the victim), who was a student of rt 10+2, had gone viral and the said video had been made viral by the petitioner, 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, it was revealed that the petitioner had committed repeated sexual intercourse with the victim against her wishes.
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. Learned counsel for the petitioner contended that the petitioner has no concern ::: Downloaded on - 29/09/2023 20:39:10 :::CIS 3 with the commission of the alleged offence and his name has .
been wrongly dragged in the FIR question. He further contended that since the investigation of the case is complete and the custodial interrogation of the petitioner is not required, therefore, it is prayed that the petitioner be enlarged on bail.
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4. Per contra, the learned Additional Advocate General has opposed the application on the ground that the rt petitioner is involved in a serious offence of rape and keeping in view the gravity of the offence, he is not entitled to be released on bail. He further contended that the custodial interrogation of the petitioner is required in this case as the petitioner is not cooperating with the investigating agency.
5. I have heard learned counsel for the petitioner as well as the learned Additional Advocate General and also gone through the record of the case.
6. It is a settled law that the anticipatory bail can be granted only in exceptional circumstances where the Court is, prima facie, of the view that the petitioner has been falsely implicated in the offence. Being an extraordinary remedy, it should be resorted to only in a special case.
::: Downloaded on - 29/09/2023 20:39:10 :::CIS 47. Although, it would be inappropriate to discuss the .
evidence in depth at this stage, because it may influence the trial Court, but the evidence collected during investigation, prima facie, indicates the involvement of the petitioner in a serious offence of rape as he is alleged to have allured a of minor girl, who was aged about 16 years and 9 months, by hiding his identity rt and committed repeated sexual intercourse with her against her wishes. He also made her video viral in order to defame her and also threatened her with dire consequences.
8. Once the allegations against the petitioner are of such type, he cannot claim anticipatory bail as a matter of right. It is a settled law that provisions for grant of anticipatory bail under Section 438 Cr. P.C., are not to be mechanically applied. Nature and gravity of the offence, the position and status of the accused with reference to the victim and witnesses, likelihood of the accused fleeing from justice, possibility of the accused tampering with the evidence and larger public interest are some of the considerations which must weigh with the Court while ::: Downloaded on - 29/09/2023 20:39:10 :::CIS 5 deciding the application for grant of anticipatory bail. Liberty .
of a citizen is indeed of a paramount importance, but at the same time, fair and fearless investigation of case of a serious nature is of no less importance. The Court shall refrain from exercising its discretion in favour of the accused under of Section 438, Cr. P.C., if it adversely affects the investigation and larger public interest.
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9. The petitioner was granted interim bail, however, as per the status report, he is not cooperating with the investigating agency, as such, his custodial interrogation is necessary for the proper investigation of the case.
10. Therefore, in view of the facts and circumstances of this case, this Court does not find any exceptional ground to exercise its discretionary jurisdiction under Section 438, Cr.P.C. to grant him anticipatory bail and, as such, this Court is of the view that the present anticipatory bail application has no merit and is liable to be dismissed.
11. Accordingly, the present bail application is dismissed and the interim protection granted to the petitioner vide order dated 07.08.2023, stands withdrawn.
::: Downloaded on - 29/09/2023 20:39:10 :::CIS 612. 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 petition for anticipatory bail. Therefore, the same shall not come in the way of the trial Court for considering the of application that may be filed by the petitioner for regular bail or at the time of the trial and the trial Court concerned shall rt not be influenced by the observations made hereinabove.
( Sushil Kukreja ) Judge September 29, 2023 (VH) ::: Downloaded on - 29/09/2023 20:39:10 :::CIS 7
3. During the course of investigation, the police .
recorded the statement of the victim under Section 161, Cr.P.C, wherein she stated that due to the lockdown in the year 2021, one day she alongwith one Bhanu and her younger sister Shalu went to Government Hospital, Tisa and of when they were returning home from the hospital, the grandfather of Bhanu hired the taxi of the petitioner at rt Bhanjradu and they returned home in the said taxi.
Thereafter, when she used to come from home to school and from school to home, the petitioner often started giving her lift in his taxi and after 7-8 days, he took her phone number from her facebook ID. The petitioner initially told her his name as Raju from Kuthed and he also told that belonged to her caste. The petitioner himself used to message on her facebook and also reply from her facebook. He also used to send the screen shots to her facebook and delete the chat history. In the year 2021, while she coming from the school, the petitioner had done a viral act in the video and at that time she did not know when he made her video. Thereafter, he talked with her for about six months on the mobile phones ::: Downloaded on - 29/09/2023 20:39:10 :::CIS 8 of her parents and thereafter when she told about him to her .
friend Riya, she disclosed her that his name was not Raju, but was Razzaq Khan and he belonged to her (Riya) religion.
Till that time, the petitioner had committed wrong act with her thrice, firstly at Sakloga-II where a new road was being of constructed, secondly she did not remember the place and thirdly at Helipad Bhanjradu. Lastly, he did the wrong act rt with her in the winter of 2022. On the basis of said statement of the victim, Sections 376, IPC, Section 6 of POCSO Act and Section 67(B) of IT Act were also added in the case and the petitioner-accused was arrested on 29.06.2023.
4. During further investigation of the case, the police got recorded the statement of the victim under Section 164, Cr. P.C, took into possession one DVD-R of the viral video and the birth certificate of the victim was also procured, as per which, the date of birth of the victim was 10.08.2006.
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