Manipur High Court
Sharma vs The Officer-In-Charge on 6 June, 2022
Author: M.V. Muralidaran
Bench: M.V. Muralidaran
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SHAMUR Digitally signed IN THE HIGH COURT OF MANIPUR
AT IMPHAL
AILATPA by
SHAMURAILATP
M AM SUSHIL Anticipatory Bail No. 16 of 2022
SHARMA
SUSHIL Date: 2022.06.14
15:40:22 +05'30' Salam Kennedy Singh, aged about 22 years, S/o
SHARMA
Salam Matumba Singh, a resident of Arong Makha
Leikai, Arong Nongmaikhong, P.O. & P.S. Hiyanglam,
Kakching District, Manipur-795130.
....Petitioner/Accused
-V E R S U S-
1. The Officer-in-Charge, Women Police Station,
Lamphelpat, Imphal West District, Manipur-
795001.
2. Nengneingal Baite, aged about 22 years, D/o
Limjong Baite of Churachandpur Malnom,
Churachandpur District, Manipur.
.... Respondents
BEFORE HON'BLE MR. JUSTICE M.V. MURALIDARAN For the Petitioner/ Accused :: Mr. Bambino Nandeibam, Adv.
Mr. Kh. Loyangamba, Adv.
For the Respondents :: Mr. Y. Ashang, PP for the respondent No. 1;
Mrs. Ayangleima, Advocate for
the respondent No. 2
Date of Hearing and
reserving Judgment &
Order :: 16.05.2022
Date of Judgment &
Order :: 06.06.2022
Anticipatory Bail No. 16 of 2022
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JUDGMENT AND ORDER
(CAV)
1. This petition has been filed by the petitioner under section 438 Cr. P. C praying for grant of anticipatory bail in connection with the FIR No.4(1) 2022 WPS-IW u/s 376 IPC added 417/90 IPC Section 3 (i)(xii) of SC & ST ( Prevention of Atrocities) Act,1989, u/s 406/420 IPC.
2. The case of the prosecution is that on 11/01/2022, the Respondent No. 2 lodged a written report to the OC WPS IW stating that on 1/1/2022 at around 11 pm the respondent No. 2 was sexually assaulted by the Petitioner at Goodwill Hotel located at North AOC. On further enquiry it reveals that on 23/11/2021 the Respondent No.2 was sexually assaulted without her consent in a hotel room near Gandhi Avenue by the Petitioner on the pretext of celebrating her birthday. Immediately after the sexual assault the Respondent No.2 cried and ran down from the hotel, when the Respondent's No.2 friends (who accompanied her) saw her crying, asked why she was crying, the Respondent No.2 told that the petitioner used force and raped her without her consent. When the Respondent No. 2 and her friends confronted, the petitioner apologized vehemently saying that it was his huge mistake and he would not repeat it again. The petitioner even bowed down and asked for forgiveness by crying and saying that he liked the respondent No.2 too much that he could not stopped Anticipatory Bail No. 16 of 2022 Page |3 himself and he wanted to make the respondent No.2 as his girlfriend. After arguing for long the Respondent No.2 and her friends soften their stand. It is also the case of the prosecution that after the said sexual assault the petitioner had sexual intercourse with the respondent No.2 under the false promise of marriage which resulted into the Respondent No. 2 got pregnant. The petitioner seldom used condom while having sexual intercourse and claimed that the Respondent No. 2 is going to be his wife and wanted a male child out of their sexual reunion. The Respondent No. 2 informed about her pregnancy to the petitioner and had sexual intercourse with the petitioner under the false promised of marriage lastly on 01/01/2022 at Goodwill hotel, North AOC. From the very next day of 01/01/2022 the petitioner started avoiding the Respondent No.2 and threatens her to abort the child.
3. The learned counsel for the petitioner submitted that the charges levelled against the petitioner are baseless and malicious and the same has been made only for the purpose of giving harassment to the petitioner by the girls' family in the state of Manipur and the petitioner is victimized in the incident of blackmail and extortion. The petitioner further submitted that being he belongs to the schedule caste community, section 3 (i)
(xii) of SC & ST (Prevention of Atrocities) is not attracted. In Anticipatory Bail No. 16 of 2022 Page |4 support, learned counsel cited the decision of the Hon'ble Supreme Court in the case of Bhandresh Bipinbhai Sheth v. State of Gujarat and another, (2016)1 SCC 152 and Dr. Subash Kashinath Mahajan -vs- State of Maharashtra (2018).
4. The learned counsel for the petitioner submitted that on 20/11/2021 the Respondent No. 2 invited the petitioner through her mobile phone to attend the occasion of her birthday coming on 22/11/2021 and developed physical relationship which was more of commercial relationship that always involved payment after the encounter and not a single instance the petitioner promise to marry her. The physical relation was purely commercial and no emotional attachment and the respondent No. 2 got financial benefit out of the relationship. And again on 25/12/2021 the Respondent No.2 called up the petitioner to celebrate Christmas at Churchandpur. They celebrate Christmas with one Md Alex at Churchandpur.
5. Opposing the petition the learned Public Prosecutor submitted that as per CDR/SDR call report the Respondent No.2 never made any call to the petitioner on 20/11/2021 and on 25/12/2021, the Respondent No.2 did not made any call to the petitioner, it was the petitioner who made a repeated call to the Respondent No. 2 as per CDR/SDR call report and further Anticipatory Bail No. 16 of 2022 Page |5 submitted that if the relationship between the petitioner and Respondent No.2 is of commercial relationship, they would not have stay together in the rented house. And further submitted that the statement of the witnesses were recorded who fully corroborated with the statement of the Respondent No.2.
6. The learned Public Prosecutor further submitted that the Respondent No.2 never take single money from the petitioner, it was the petitioner who takes money from the Respondent No. 2 and her friends through cash and mobile apps.
7. The learned Public Prosecutor submitted that the chain of evidence is highly significant and some of the missing links are yet to be determined and one such link is the name of the friend of the petitioner who was present on the day the first incident took place. Further submitted that Md. Alex who helped the petitioner in threatening the Respondent No.2 to abort the child and also who took Rs.50,000/-(fifty Thousand) from the petitioner for aborting the child is not yet appeared before the IO concerned despite repeated summon. Since the investigation is going on, prima facie of committing serious offence has been made it out, the custodial interrogation of the petitioner is necessary and thus, prayed for dismissal of the application. In support of his submission the learned Public prosecutor cited the Anticipatory Bail No. 16 of 2022 Page |6 decision of the Honble Supreme court in the case of Yedla Srinivas Rao v. State of A.P,(2006)11 SCC615. 8. The learned counsel for the Respondent No. 2 submitted that the petitioner eloped one lady and had already fixed their marriage solemnisation prior to meeting between the petitioner and Respondent No.2 and the said elopement was not disclosed by the petitioner to the Respondent No.2. The Respondent No. 2 was sexually assaulted by the petitioner on 23/11/2021 without her consent and against her will. After the Respondent No. 2 was sexually assaulted by the petitioner, the Respondent No. 2 was convinced and kept a sexual relationship under the promised of marriage. If the Respondent No. 2 would have known the petitioner's elopement she would not have submitted herself for sexual intercourse. The petitioner, after having sexual intercourse under the promise of marriage on 01/01/2022 and knowing the fact of Respondent's No.2 pregnancy have left and totally ignored the Respondent No.2 and threaten the Respondent No.2 to abort the child. The petitioner is now got married with the lady he eloped prior to the meeting of the Respondent No.2. Thus, it shows that from the very beginning the petitioner never intended to marry the Respondent No. 2.
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9. Learned counsel for the Respondent No.2 further submitted that the Receipt memo at Annexure A/2 of the petition is fabricated one and there was no such meeting in the premises of the police station as pleaded by the petitioner. Since the petitioner can produce such fabricated document before the Hon'ble High Court, the same can be done before the IO concerned to derail the investigation as such there are highly chances of tampering the evidence and influencing and hampering the investigation. The petitioner in collusion with his friend namely Md. Alex and Salam Dayananda has deceived the Respondent No.2 and they are also trying to mislead the investigation.
10. Learned counsel for the Respondent No.2 further submitted that since the petitioner could have sexually assaulted the Respondent No.2 without her consent and against her will and also kept sexual relationship with the Respondent No.2 under the promised of marriage in the course of his elopement till the solemnisation of his marriage, there is likelihood of repeating the offence in the event of he has been set free.
11. Learned counsel for the Respondent No.2 has further submitted that the Respondent No. 2 is in mental trauma since the petitioner left her and due to deteriorating her health condition and on the advice of the medical practitioner, her Anticipatory Bail No. 16 of 2022 Page |8 pregnancy was terminated after taking permission from the Judicial Magistrate first class by filing Cril. Misc. case No.40 of 2022, and seized the foetus by the IO concerned for DNA test. Since the petitioner has committed the offence stated in the FIR and there is prima facie case against the petitioner, relief of pre- arrest bail cannot be granted to the petitioner. In support, learned counsel for the Respondent No.2 cited the decision of the Honble Supreme Court in the case of Anurag Soni V. state of Chhattisgrah, (2019) 13 SCC 1 and Siddharth Ramkrishna Chitte V. The State of Maharashtra and Anr. passed by the High Court of Bombay.
12. This Court considered the submissions of the learned counsel for the petitioner and the learned Public Prosecutor and Respondent No. 2, and also perused the materials available on record.
13. The grant or refusal of anticipatory bail should necessary depend on the facts and circumstances of each case,in Bhadresh Bipoinbhai Sheth (supra), the Hon'ble Supreme Court held as under : 25.10. We shall also reproduce para 112 of the Judgement in Siddharam Satlingappa case, (2011) 1 SCC 694, wherein the court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail :
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(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(b) The antecedents of the applicant including the fact as to whether the accused has previously under gone imprisonment on conviction by a court in respect of any cognizable offence;
(c) The possibility of the applicant to flee from Justice;
(d) The possibility of the accused's likelihood to repeat similar or other offences;
(e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case;
(h) While considering the prayer for grant of anticipatory bail, a balance has to be stuck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;
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(i) The court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail'.
13. In Bhadresh Bipoinbhai Sheth (supra), the Hon,ble Supreme Court observed that the discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In case where the Court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event custodial interrogation should be avoided.
14. In the instant case, the materials Produced before this Court reveals that the investigation is going on and in such a situation, taking note of the allegations levelled against the petitioner, the custodial interrogation of the petitioner is prerequisite for free and fair investigation and for ends of justice as pleaded by the prosecution. At this stage; custodial Anticipatory Bail No. 16 of 2022 P a g e | 11 interrogation of the accused person is imperatively required for bringing about a logical conclusion to the investigation. If the petitioner is granted pre-arrest bail; there is every possibility that he might hamper the investigation. Based on the available materials and the facts of the instant case this Court is of the view that granting anticipatory bail at the stage of ongoing investigation would not be appropriate. Further, the statements as well as medical evidence prima facie supports the commission of offences by the petitioner and the learned Additional Sessions Judge was right in cancelling the interim bail granted to the petitioner.
15. For the foregoing discussions, this Court is of the view that the petitioner is not entitled to get anticipatory bail and accordingly, the anticipatory bail application is dismissed.
JUDGE FR/NFR Sushil Anticipatory Bail No. 16 of 2022