Himachal Pradesh High Court
Vikas Dogra vs State Of Himachal Pradesh on 5 February, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.M.P(M) No. 125 of 2015.
.
Date of decision: 5.2.2015.
Vikas Dogra ......Petitioner
Vs.
State of Himachal Pradesh ...... Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Vacation Judge.
Whether approved for reporting? No
1
For the petitioner : Mr. N.K.Thakur, Senior Advocate with
Mr. Ramesh Sharma, Advocate.
For the respondent : Mr. H.K.S.Thakur and Mr. Parmod
Thakur, Addl. Advocate Generals.
ASI Shiv Lal, Police Station, Nurpur,
District Kangra.
Tarlok Singh Chauhan, J. (Oral).
The petitioner has approached this court for grand of bail in case FIR No. 376 of 2013 registered at Police Station, Nurpur, District Kangra on 13.12.2013 under sections 292, 354, 376, 506 IPC and sections 66 and 67 of the Information Technology Act, 2000.
2. The case of the prosecutrix is that she is known to the petitioner since they had studied together at plus one level and even thereafter at Chandigarh. Her further allegation is that in December 2012 the petitioner sent her a friend request on the face book, which she accepted since the petitioner had been her classmate. She continued chating with the petitioner on the face book and maintained Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 17:35:17 :::HCHP ...2...
contact with the petitioner, who finally proposed to her in March 2013, which proposal was turn down by the prosecutrix. It is thereafter that .
the petitioner started pressuring the prosecutrix for marriage. It is only then that prosecutrix learnt that petitioner belongs to a different caste and she finally refused to marry the petitioner. It is only then alleged that in order to take revenge the petitioner sent a SMS to the brother of the prosecutrix wherein a nude photo of the prosecutrix was sent by morphing the same. The face was that of the petitioner which was taken from her face book account, while the nude body was morphed with this face of somebody else. On the basis of such allegations, an FIR under sections 292, 354, 506 IPC and sections 66 of I.T. Act came to be registered against the petitioner on 13.12.2013.
3. Thereafter on 1.1.2014 the prosecutrix got her statement recorde3d before the Magistrate, under section 164 Cr.P.C. wherein for the first time the prosecutrix claimed that petitioner had established sexual contact with her, on the basis of which the petitioner was further charged for having committed offence under section 376 IPC.
I have heard the learned counsel for the parties and have gone through the records of the case.
4. The offence of rape is one of the most serious offences and there can be nothing more horrendous and despicable crime against a woman because rape not only causes physical injury but more indelibly leaves a scar on the most cherished possession of a woman which is her dignity, chastity, honour and reputation.
::: Downloaded on - 15/04/2017 17:35:17 :::HCHP...3...
5. The law with regard to grant of bail is now well settled.
As early as in the year 1978, the Hon'ble Supreme Court in .
Gurcharan Singh vs. State (Delhi Administration) (1978) 1 SCC 118 laid the following criteria for grant of bail:
"22. In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail subject to sub- section (3) of Section 437 CrPC if it deems necessary to act under it. Unless exceptional circumstances are rought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437(1) CrPC and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence.
******
24. Section 439(1) CrPC of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437(1) there is no ban imposed under Section 439(1), CrPC against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1) CrPC of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437(1) and Section 439(1) CrPC of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the ::: Downloaded on - 15/04/2017 17:35:17 :::HCHP ...4...
accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with .
witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out."
6. The Hon'ble Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another, (2010) 14 SCC 496 , has laid down the following principles to be kept in mind, while deciding petition for bail:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
Thereafter, in a detailed judgment, the Hon'ble Supreme Court in Siddharam Satlingappa Mhetre versus State of Maharashtra and others, (2011) 1 SCC 694 , while relying upon its decision rendered by its Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565, laid down the following parameters for grant of bail: -
"111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of ::: Downloaded on - 15/04/2017 17:35:17 :::HCHP ...5...
Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do.
.
In any event, this is the legislative mandate which we are bound to respect and honour.
112. 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 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 accuse d 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 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;
(x) Frivolity in prosecution should always be considered and it is only the element of genuineness 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 genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
::: Downloaded on - 15/04/2017 17:35:17 :::HCHP...6...
113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The .
court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.
114. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the Judge concerned, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of . The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the court of Sessions or the High Court is always available."
(Emphasis supplied)
7. In Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40 , the Hon'ble Supreme Court made the following pertinent observations in paras 21, 22, 23, and 40 as under:
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon ::: Downloaded on - 15/04/2017 17:35:17 :::HCHP ...7...
only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
.
23. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un- convicted person for the purpose of giving him a taste of imprisonment as a lesson.
40. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required."
8. Coming back to the facts of the case, it would be seen that no doubt the allegations against the petitioner are of serious nature, but the same cannot be taken at their face value at this stage, more particularly the allegations of rape. The silence of the prosecutrix for such a long period of time is definitely required to be viewed with an eye of suspicion and taken with a pinch of salt.
9. It is established on record that petitioner and the prosecutrix are not strangers and in fact had indulged in physical relationship and at one time the petitioner had even proposed the prosecutrix with a proposal of marriage.
10. There is old Jewish saying "If you are close when you should be distant, you will be distant when you should be close".
Therefore, it is for both woman and man to restrain themselves and not to indulge in intimate activities prior to marriage. No doubt, it is the ::: Downloaded on - 15/04/2017 17:35:17 :::HCHP ...8...
responsibility, moral and ethical both, on the part of man not to exploit any woman by compelling or inducing her for sexual relationship. But .
then it is ultimately the woman herself who is the protector of her own body and therefore, her prime responsibility to ensure that in the relationship, protects her own dignity and modesty. A woman is not expected to throw herself to a man and indulge him promiscuity thereby becoming a source of hilarity. It is for her to maintain her purity, chastity and virtues.
11. Why the prosecutrix while lodging a complaint against the petitioner on 13.12.2013 made no mention of rape has to be taken note of and the explanation that she was under threat or was scared cannot be readily accepted.
12. On the basis of records, it cannot be said that petitioner would in any manner interfere with the trial of the case and it is not even the allegation of the prosecution that petitioner would flee from justice. In such eventuality, it is otherwise open to the prosecution to approach this court for cancellation of bail.
13. Accordingly, the petition is allowed and the petitioner who has been arrested in connection with FIR No. 376 of 2013 registered against him in Police Station, Nurpur, District Kangra is ordered to be released on bail subject to his furnishing personal bond in the sum of Rs.50,000/-(rupees fifty thousand) with one surety in the like amount to the satisfaction of learned Judicial Magistrate Ist Class, Nurpur, District Kangra.
14. The petitioner shall further abide by the following conditions:
::: Downloaded on - 15/04/2017 17:35:17 :::HCHP...9...
that he shall:-
(a) regularly attend the trial Court on each and every hearing .
if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;
(b) not temper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever.
(c) not 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 Court or the Police Officer.
(d) not leave the territory of India without the prior permission of the Court.
15. It is clarified that if the petitioner misuse his liberty or violate any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.
16. Any observation made hereinabove shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made hereinabove.
Copy dasti.
February 5, 2015. ( Tarlok Singh Chauhan ),
(Hem) Vacation Judge.
::: Downloaded on - 15/04/2017 17:35:17 :::HCHP