Himachal Pradesh High Court
Eshan Akthar vs State Of Himachal Pradesh on 9 August, 2017
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 669 2017 Decided on: 9th August, 2017 Eshan Akthar ....Petitioner .
Versus State of Himachal Pradesh ...Respondent Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 Yes.
For the petitioner: Mr. Imran Khan, Advocate. For the respondent/State: Mr. Virender K. Verma, Addl. AG, with Mr. Pushpinder Jaswal, Deputy Advocate General.
For the complainant: Mr. Rajiv Rai, Advocate. ______________________________________________________________________ Chander Bhusan Barowalia, Judge. (oral).
The present bail application has been maintained by the petitioner under Section 438 of the Code of Criminal Procedure for releasing him on bail, in the event of his arrest, in case FIR No. 7 of 2017, dated 16.05.2017, registered under Sections 354A, 354B, 354C and 376 of Indian Penal Code, 1860 (for short "IPC"), at Women Police Station Dharamshala, District Kangra, H.P.
2. As per the learned counsel for the petitioner, the petitioner is innocent and has been falsely implicated in the present case. He is permanent resident of District Bilaspur and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, thus he may be released on bail.
3. Police reports stand filed. As per the prosecution story, on 16.05.2017, the prosecutrix lodged a complaint against the petitioner alleging that she is working as Staff Nurse and the petitioner is working 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 10/08/2017 23:57:04 :::HCHP 2as a Teacher. The prosecutrix has further alleged that she met the petitioner in June, 2016, and they became good friends. Both of them got clicked photographs together and the petitioner used to take the .
prosecutrix perforce to guest houses and he also used to take her pictures after making her nude. The petitioner also threatened the prosecutrix whenever she used to stop him. The petitioner every time used to say that he will commit suicide and he also used to weep in front of the prosecutrix, thus the prosecutrix agreed to the demands of the petitioner. As per the prosecution, the petitioner used to maintain relations with the prosecutrix. The prosecutrix has further alleged in her complaint that the petitioner thereafter made her to believe that she is doing wrong and one day he slapped her eight times. The police registered a case against the petitioner under Sections 354A, 354B, 354C and 376 IPC and conducted the investigation. As per the police report, the recoveries have already been effected and now the voice sample of the accused has to be taken.
4. I have heard the learned counsel for the petitioner, learned Additional Advocate General for the State, learned counsel for the prosecutrix (complainant) and gone through the record, including the police report, carefully.
5. The learned counsel for respondent No. 2 (prosecutrix) has relied upon the decision of a Co-ordinate Bench of this Hon'ble High Court, rendered in Cr.MP(M) No. 815 of 2014, Jolly Bansal vs. State of Himachal Pradesh, dated 14.08.2014, wherein vide para 6 ::: Downloaded on - 10/08/2017 23:57:04 :::HCHP 3 (relevant portion whereof has been extracted for ready reference) it has been held as under:
"6. ... ... ... ... ... ...
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Court is of the opinion that applicant is not entitled for relief of anticipatory bail due to his own act and conduct and due to the fact that proceedings under Section 82 Cr.P.C. initiated against applicant by learned Chief Judicial Magistrate for declaring him as proclaimed offender. It is held that custodial interrogation of applicant is essential in present case in order to ascertain the preparation of CD and in order to ascertain the fact that how the copy of CD transmitted to Mandi.
Custodial interrogation of applicant is also essential in present case in order to recover original hard disk of computer and laptop through which r obscene recording was conducted and transmitted. Custodial interrogation is essential in present case in order to recover mobile phone through which SMS were sent to co-accused Lawan Thakur. Custodial interrogation of applicant is essential in present case in order to ascertain whether obscene video/CD were prepared in the presence of applicant or not."
However, in the present case the recoveries have already been effected and nothing remains to be recovered at the instance of the petitioner, so the judgment (supra) is not applicable to the facts of the present case, thus the same cannot be relied upon.
6. Similarly, the learned Counsel for the prosecutrix has relied upon K.K. Jerath vs. Union territory, Chandigarh and others, (1998) 4 SCC 80, and Muraleedharan vs. State of Kerala, (2001) 4 SCC 638, but in the case in hand, the petitioner is neither in a position to tamper with the prosecution evidence nor his custodial interrogation is necessary, therefore, the judgments, as referred ::: Downloaded on - 10/08/2017 23:57:04 :::HCHP 4 hereinabove, are not applicable to the facts of the present case, as the petitioner is fully co-operating in the investigation and recoveries have already been effected, thus custodial interrogation of the petitioner is .
not required at all. The petitioner, as held above, is not in a position to tamper with the prosecution evidence, as is evident from the police record and at the same point of time it has been held as under, vide para 122, in Siddharam Satlingappa Mhetre vs. State of Maharashtra and others, AIR 2011 Supreme Court 312:
"122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the exact role of the r accused must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused's likelihood to repeat similar or the other offences.
v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. 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. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over-implication in the cases is a matter of common knowledge and concern; viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there ::: Downloaded on - 10/08/2017 23:57:04 :::HCHP 5 should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
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x. Frivolity in prosecution should always be considered and it is only the element of genuiness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuiness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
The judgment (supra) is fully applicable to the facts of the present case r to as the petitioner is neither in a position to tamper with the prosecution evidence nor he is in a position to flee from justice, as he is working as Teacher, having permanent property in Himachal Pradesh. Thus, taking into consideration the situation of the parties, this Court finds that the present is a fit case where the judicial discretion to admit the petitioner on bail, in the event of his arrest, is required to be exercised in his favour. Under these circumstances, it is ordered that the petitioner be released on bail, in the event of his arrest, in case FIR No. 7 of2017, dated 16.05.2017, which has been registered under Sections 354A, 354B, 354C and 376 IPC, on his furnishing personal bond to the tune of `10,000/- (rupees ten thousand only) with one surety in the like amount to the satisfaction of Investigating Officer. The bail is granted subject to the following conditions:
(i) That the petitioner will join investigation of the case as and when called for by the Investigating Officer in accordance with law.
(ii) That the petitioner will not leave India without prior permission of the Court.::: Downloaded on - 10/08/2017 23:57:04 :::HCHP 6
(iii) That the petitioner will not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Investigating Officer or Court.
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7. In view of the above, the petition is disposed of.
Copy dasti.
(Chander Bhusan Barowalia)
9th August, 2017 Judge
(virender)
r to
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