Himachal Pradesh High Court
Nazakat Ali Son Of Sh. Sagir Ahmed vs State Of H.P. ....Non-Petitioner on 10 December, 2015
Author: P.S. Rana
Bench: P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr.MP(M) No. 1638 of 2015
Order Reserved on 26.11.2015
.
Date of Order 10th December, 2015
______________________________________________________________
Nazakat Ali Son of Sh. Sagir Ahmed. ....Petitioner
Versus
State of H.P. ....Non-Petitioner
of
______________________________________________________________
Coram
rt
The Hon'ble Mr. Justice P.S. Rana, J.
Whether approved for reporting?1 Yes.
______________________________________________________________ For the petitioner: Mr. Imran Khan, Advocate For the Non-petitioner: Mr. Rupinder Singh Thakur, Additional Advocate General.
______________________________________________________________ P.S. Rana, Judge.
Order:- Present petition is filed under section 438 Code of Criminal Procedure 1973 for grant of anticipatory bail relating to FIR No. 380 of 2015 dated 1.11.2015 registered under Sections 66-E and 67-A of the Information and Technology Act 2000 in Police Station Paonta Sahib District Sirmour H.P.
2. It is pleaded that petitioner has not committed any offence and he has been falsely implicated in the present case 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 19:27:54 :::HCHP 2as counter blast to earlier FIR lodged by present petitioner. It is further pleaded that petitioner will abide by conditions .
imposed by the Court and will join investigation of the case.
Prayer for acceptance of bail application is sought.
3. Per contra police report filed. As per police report FIR No. 380 of 2015 dated 1.11.2015 registered under Sections of 66-E and 67-A of the Information and Technology Act 2000 in Police Station Paonta Sahib District Sirmour H.P. There is recital in the police report that complainant is residing in New rt Colony Dhaulakuan Tehsil Paonta Sahib District Sirmour H.P. with her husband and three children. There is further recital in the police report that petitioner Nazakat Ali is her neighbour and complainant and petitioner are known to each other for the last fifteen years. There is further recital in the police report that Kabiroodeen used to visit in the residential house of petitioner Nazakat Ali and there is further recital in the police report that wife of petitioner and Kabiroodeen have close relation with each other. There is further recital in the police report that complainant also became familiar with Kabiroodeen and relations of complainant developed with Kabiroodeen.
There is further recital in the police report that petitioner fixed mobile camera and prepared MMS video of complainant and Kabiroodeen. There is further recital in the police report that ::: Downloaded on - 15/04/2017 19:27:54 :::HCHP 3 petitioner wife Sanjida tried to blackmail the complainant and when complainant did not accepted the request of the .
petitioner wife Sanjida thereafter petitioner wife distributed CD of MMS in general public. Case was registered against petitioner and mobile of the complainant and petitioner wife took into possession vide seizure memos and statements of of witnesses recorded. Two CDs were checked. Both mobiles and CDs have been sent for Forensic Science Laboratory Junga for chemical examination.
rt There is further recital in the police report that petitioner wife prepared CD of absurd photo and thereafter distributed in the general public. Prayer for rejection of bail application sought.
4. Court heard learned Advocate appearing on behalf of the petitioner and learned Additional Advocate General appearing on behalf of the State and also perused the record carefully.
5. Following points arise for determination in this bail application:-
Point No. 1Whether bail application filed under Section 438 Cr.P.C. is liable to be accepted as mentioned in memorandum of grounds of bail application?Point No. 2
Final Order.
::: Downloaded on - 15/04/2017 19:27:54 :::HCHP 4Findings on Point No.1with reasons
6. Submission of learned Advocate appearing on .
behalf of the petitioner that petitioner is innocent and did not commit offence under Sections 66-E and 67-A of the Information Technology Act 2000 cannot be decided at this stage. Same fact will be decided when case shall be disposed of of on merits by learned trial Court after giving due opportunities to both the parties to lead evidence in support of their case. rt
7. Another submission of learned Advocate appearing on behalf of the petitioner that any condition imposed by Court will be binding upon the petitioner and on this ground anticipatory bail be allowed is rejected being devoid of any force for the reasons mentioned hereinafter. At the time of granting bail following factors are considered. (i) Nature and seriousness of offence (ii) The character of the evidence (iii) Circumstances which are peculiar to the accused (iv) Possibility of the presence of the accused at the trial or investigation (v) Reasonable apprehension of witnesses being tampered with (vi) The larger interests of the public or the State. See AIR 1978 SC 179 titled Gurcharan Singh and others Vs. State (Delhi Administration). Also see AIR 1962 SC 253 titled The State Vs. Captain Jagjit Singh.
::: Downloaded on - 15/04/2017 19:27:54 :::HCHP 5Allegations against the petitioner are very heinous and grave in nature under Information and Technology Act 2000 relating to .
violation of privacy and relating to publishing material containing sexual act in electronic form. Section 77-B of the Information and Technology Act 2000 mentioned that punishment with imprisonment of three years and above shall be cognizable offence. Punishment of Section 67-A of the Information and of Technology Act 2000 is five years and also fine which may extend to ten lacs on first conviction and in the event of second or rt subsequent conviction seven years imprisonment and fine Rs.
Ten lacs.
9. In view of the fact that investigation is in initial stage in the present case Court is of the opinion that it is not expedient in the ends of justice to grant anticipatory bail to the petitioner.
Court is also of the opinion that if the anticipatory bail is granted to the petitioner at this stage then interest of State and general public will be adversely affected and Court is of the opinion that if the anticipatory bail is granted to the petitioner at this stage then investigation of case will also be adversely affected.
10. Submission of learned Additional Advocate General appearing on behalf of the State that there are heinous allegations against the petitioner under Information and technology Act 2000 and if anticipatory bail is granted to the ::: Downloaded on - 15/04/2017 19:27:54 :::HCHP 6 petitioner then petitioner will induce and threat the prosecution witnesses is accepted for reasons hereinafter mentioned. There is .
apprehension in the mind of Court that petitioner will induce or threat the prosecution witnesses if anticipatory bail is granted at this stage of case. In view of the fact that investigation is in the initial state of the case and in view of the fact that investigation report under Section 173 code of Criminal Procedure 1973 is not of filed in the Court as of today it is held that it is not expedient in the ends of justice to release the petitioner on anticipatory bail at rt this stage of initial investigation. Point No.1 is answered in negative against the petitioner.
Point No. 2 (Final Order):
11. In view of the findings upon point No.1 above anticipatory bail application filed by the petitioner under Section 438 Cr.P.C. is rejected. Observations made in this order will not affect the merits of case in any manner and will strictly confine for the disposal of this bail application filed under Section 438 Code of Criminal Procedure 1973. Petition is disposed of. All pending application(s) if any also disposed of.
(P.S.Rana), Judge.
December 10th, 2015 (kck) ::: Downloaded on - 15/04/2017 19:27:54 :::HCHP