Himachal Pradesh High Court
Shubham Parmar vs State Of Himachal Pradesh on 2 March, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 244 of 2020 .
Judgment reserved on: February 28, 2020
Date of Decision: March 2 , 2020
Shubham Parmar ...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. Ajay Sharma, Senior Advocate with Mr. Amit
Jamwal, Advocate, for the petitioner.
For the respondent : Mr. Ashwani K. Sharma & Mr. Nand Lal Thakur, Addl.
AGs. and Mr. Rajat Chauhan, Law Officer, for the
respondent/State.
Anoop Chitkara, Judge.
The petitioner, who is under arrest, on being arraigned as accused in FIR Number 135 of 2019, dated Nov 16, 2019, registered under Sections 376, 354, 354C, 384, 420, 506, 498A, 120B & 201 of Indian Penal Code, 1860 and Sections 66C, 67A of the Information Technology Act, 2000, in Police Station Gagret, Distt. Una, HP, disclosing non-bailable offences, has come up before this Court under Section 439 CrPC, seeking regular bail.
2. Status report stands filed. I have seen the status report(s) as well as the Police report under Section 173(2) CrPC, to the extent it was necessary for deciding the present petition, and heard learned Counsel for the parties.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 02/03/2020 20:24:35 :::HCHP 23. Prior to the present bail petition, the petitioner had filed a petition under Section 439 CrPC, before the Addl. Sessions Judge (II), Una, District Una, HP. However, vide order dated 13.2.2020, the Court dismissed the petition.
.
FACTS
4. The gist of the First Information Report and the investigation is that the police got the statement of the victim recorded under Section 164 CrPC, wherein she mentioned her age to be 21 years and stated that she knew the accused/bail petitioner since December, 2018 and were in talking terms with each other. While making this statement on Nov 27, 2019 the victim stated that for the last one month both of them were in relation. It means that she is talking about September & October, 2019. She further stated that on Jan 2, 2019, Suhbham, petitioner herein, told her that he wanted to marry her to which she refused. After that, he continuously pressurized her. On Feb 10, 2019, both of them visited Naddi Hills Hotel for the purpose of solemnization of marriage. The accused impressed upon her to stay in the same room. In the mid-night he started flirting with her and said that as they would marry, there is no problem and after that he committed coitus with her forcibly. On her refusal he showed knife to her and threatened to do away with the lives of her parents. She further stated that next day the petitioner refused to marry her. During night he had also made a MMS of the victim and said that it is only for his use because he is going to marry. She further stated that after that her problem came when according to the victim the accused unloaded the MMS on the facebook, which led to the registration of the FIR. The petitioner was arrested on Feb 13, 2020.
5. Subsequently the police party also complied with the procedural requirements under the CrPC.
ANALYSIS AND REASONING:
6. Pre-trial incarceration needs to be justified depending upon the heinous nature of the offence, terms of the sentence prescribed in the Statute for such a crime, accused fleeing from justice, hampering the investigation, and doing away with witnesses. The Court is under the Constitutional obligation to safeguard the interests of the victim, the accused, the society, and the State.
::: Downloaded on - 02/03/2020 20:24:35 :::HCHP 37. As per the victim's own version, while making statement under Section 164 CrPC on Nov. 27, 2019, she specifically stated that she was in relationship with accused for the last one month, hence petitioner has prima facie made out a case for bail for .
offence under Section 376 IPC.
8. Mr. Nand Lal Thakur, learned Additional Advocate General contends that the circulation of the MMS by the bail petitioner has caused permanent dent in the image of the victim and as such he does not deserve to be released on bail.
9. As I have already discussed, the petitioner has made out a case for bail, as far as offence under Section 376 IPC is concerned, which is the principal offence. Even if the petitioner does not deserve leniency for circulating MMS, still the custody he has already undergone during the period of his incarceration is already sufficient so as to send a message to the society about the gravity of the offence, but to continue pre-
trial incarceration on the point of MMS in this age of internet, when according to the studies, Web as well as Dark Web are full of pornography. It is not for the judiciary to deny bail on this ground when burden is on the other wings of Government to curb the evil.
10. Given the above reasoning, in my considered opinion, the judicial custody of the petitioner/accused is not going to serve any purpose whatsoever, and I am inclined to grant bail on the following grounds, but subject to stringent conditions:
a) The report under section 173(2) CrPC stands filed.
b) The investigation is almost complete.
c) The petitioner/accused is in judicial custody since Feb 13, 2020.
d) The petitioner is a permanent resident of the address mentioned in the memo of parties, as such presence can always be secured.
e) The petitioner has no criminal history.
11. Consequently, the present petition is allowed. The petitioner/accused shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing personal bond in the sum of INR 10,000/- (Rupees ten thousand) with two sureties in the like amount, to the satisfaction of the Trial Court/Sessions Judge/Additional Sessions Judge, Una, HP.
::: Downloaded on - 02/03/2020 20:24:35 :::HCHP 412. The Court executing the personal and surety bonds shall ascertain the identity of the bail-petitioner, his family members, and of sureties, through AADHAR Card, Pan Card, Ration Card, etc. The petitioner shall mention phone numbers and other details, .
on the reverse page of the bonds.
13. The Counsel for the accused and the attesting official shall explain all conditions of this bail to the petitioner.
14. This Court is granting the bail, subject to the conditions mentioned herein. The petitioner/accused undertakes to comply with all directions given in this order, and the furnishing of bail bonds by the petitioner/accused is acceptance of all such conditions:
a) The petitioner shall appear before the Court which issues the summons or warrants, and shall furnish fresh bail bonds to the satisfaction of such Court, if such Court directs to do so.
b) The petitioner undertakes to attend the trial.
c) The petitioner shall join the investigation as and when called by the
Investigating Officer. However, whenever the investigation takes place within the boundaries of the Police Station or the Police Post, then the accused shall not be called before 9 AM and shall be let off before 5 PM.
d) The petitioner shall co-operate in the investigation.
e) The petitioner shall not hamper the investigation.
f) The petitioner undertakes not to threaten or browbeat or use any pressure tactics on the victims, complainant, and witnesses,
g) The petitioner shall neither influence nor try to control the investigating officer, in any manner whatsoever.
h) The petitioner undertakes not to make any inducement threat or promise, directly or indirectly, to the investigating officer or any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or any Police Officer or tamper with the evidence.
i) In case the petitioner commits any offence prescribing the sentence of imprisonment of more than seven years, within thirty days of knowledge of such FIR, the petitioner shall intimate SHO of the present police station, with all the details of the present FIR as well as the new FIR. In such a situation, it shall be ::: Downloaded on - 02/03/2020 20:24:35 :::HCHP 5 open for the State to apply to this Court for cancellation of this bail, if it deems fit and proper.
j) The Petitioner shall not contact the victim personally or through any other .
medium whatsoever. He would also avoid to enter the campus of her studies and would not enter within a radius of five kilometers of the residence of the victim, measuring from the shortest route, until the recording of the statement of all witnesses, except Police officials, during trial. However irrespective of these conditions, the accused is permitted to visit his Lawyers, Courts and Hospitals. The petitioner shall inform the SHO of above-mentioned Police Station about the address where he would be residing. After the recording of the statements of the aforesaid witnesses, this condition shall automatically come to an end. In case of emergency, whenever, the accused is required to enter ithin the five kilometer radius of her residence, then he shall take permission of the SHO/I.O.
or any superior Officer of the concerned Police Station or of Pradhan/Up- Pradhan/Member of Panchayat/Municipal Commitee, in whose jurisdiction, the residence of the victim, falls. But in no situation, he shall stay at this place for more than 24 hours at a stretch. This condition is being laid so that no trauma is caused to the victim, at least till the time of recording of the statement of the victim in Court. Such a condition is neither arbitrary nor unreasonable and the only purpose is that the victim is unable to come face to face with the accused and also has been imposed with a view that the accused is unable to influence the victim. In case the petitioner needs modification of this condition, then he may apply to this Court, supported with written permission from the victim, obtained through Pradhan, Up Pradhan, or Ward Member of the Panchayat, where the victim resides. It is clarified that in case the petitioner violates this condition then he will be liable to cancel his bail.
k) Within 30 days from today, the petitioner shall sell, or surrender, all firearms along with ammunition, and arms licenses, if any, to the authority which had given such permission.
l) Apart from above, in case the Petitioner does not turn up before the Trial Court, then the trial Court may issue Non-Bailable warrants and send the ::: Downloaded on - 02/03/2020 20:24:35 :::HCHP 6 petitioner to the Judicial Custody for the period for which the presence of the petitioner cannot be dispensed with. If the petitioner violates any other condition(s) as stipulated in this bail order, then the Trial Court may direct the .
Public Prosecutor to file a cancellation application before it and it shall be lawful and permissible for the Trial Court to cancel the bail.
15. This order of bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the petitioner.
16. In case the petitioner finds the bail condition(s) as violating fundamental or other right, or any human right, or faces any other difficulty due to any condition, then, the petitioner may file a reasoned application for modification of such term(s).
17. The present bail order is only for the FIR mentioned above. It shall not be construed to be a blanket order of bail in all other cases, if any, registered against the petitioner.
18. The SHO/Additional SHO of the concerned Police Station or the Investigating Officer to handover a copy of this order to the victim and explain it to her.
19. 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.
20. Petition stands allowed in the terms mentioned above.
Copy dasti.
(Anoop Chitkara), Judge.
March 2 , 2020 (PK) ::: Downloaded on - 02/03/2020 20:24:35 :::HCHP