Himachal Pradesh High Court
Balvinder Singh @ Happy vs State Of H.P on 20 January, 2021
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 89 of 2021 Date of Decision: 20.01.2021.
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Balvinder Singh @ Happy ...Petitioner.
Versus
State of H.P. ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Vacation Judge.
Whether approved for reporting?1 No For the petitioner: Mr. Naresh Kaul, Advocate.
For the respondent: Mr. Bhupinder Thakur, Mr. Gaurav Sharma and Ms. Divya Sood, Deputy Advocate Generals with Mr. Rajat Chauhan.
THROUGH VIDEO CONFERENCE
FIR No. Dated Police Station Sections
7/2021 05.01.2021 Nurpur, District 376,385 and 506 of IPC.
Kangra
Anoop Chitkara, Vacation Judge.
For indulging in sexual intercourse with the victim aged 27 years, the petitioner, is now apprehending arrest came up before this Court under Section 438 CrPC, seeking anticipatory bail.
2. The Petitioner straightaway filed the bail petition before High Court, which is permissible given the decision of a three Judges Bench of HP High Court, in Mohan Lal v Prem Chand, AIR 1980 HP 36, (Para 9 & 15), wherein the Full bench 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 21/01/2021 20:40:35 :::HCHP 2holds that a person can directly apply for an anticipatory bail or regular bail to the High Court without first invoking the jurisdiction of the Sessions Judge.
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3. In Para 9 of the bail application, the petitioner declares having no criminal history. The status report also does not mention any criminal past of the accused.
4. Briefly, the allegations against the petitioner are that on 4.1.2021, the victim sent a written complaint to Superintendent of Police, Kangra at Dharamshala.
She alleged that she has married lady and has a daughter. Her husband is serving in Indian Army. Whenever her In-laws would be out of home then Balvinder ( petitioner herein ) would treat them in his vehicle. On 12.11.2020 when she had to visit Jawalamukhi Temple then they hired a taxi of Balwinder. While returning from the temple Balwinder took some photographs with her. During the night he called her and told her to meet him. On this she told him since he usually visits her home then he can come any time and on this he reached her home. At that time, her father-
in -law and mother -in -law were not at home. Balwinder reached her home and then asked him what work he has with her. On this, he started fluttering with her.
Upon this, she told him to refrain but he said that she will have to accede him, otherwise he will send the photographs taken by him to her husband and also tell her husband that he has affair with her. It would spoil her marital relation and as such asked her to do whatever he wanted. After that Balwinder made her lay on the bed, undressed her and took her photographs and committed sexual intercourse with her. He threatened her with dire consequences, in case she revealed it to anyone, post her photographs on Internet and also kill her daughter. Subsequent to this, every night Balwinder visited her home and forcibly committed sex with her.
To save her matrimonial life, she did not told this to anyone. Balwinder also took ::: Downloaded on - 21/01/2021 20:40:35 :::HCHP 3 away money, silver ring, gold locket and golden chain on the pretext that if she does not give the same to him, he would reveal everything to her family members. Lastly .
on 28.11.2020 Balwinder again committed rape upon her.
5. Mr. Naresh Kaul, Ld. Counsel for the petitioner contends that the gold chain, which was also mentioned as one of the articles, taken from the complainant, was returned by the accused today morning to MHC Ravinder. Learned counsel for the petitioner, on instructions, further submits that he has no objection, in case MHC hands over the same to the victim/complainant.
6. While opposing the bail, the alternative contention on behalf of the State is that if this Court is inclined to grant bail, such a bond must be subject to very stringent conditions.
7. As per the version of the victim, when Balwinder wanted to visit her home, at that time her father-in-law and mother in law were not present at home and knowing this fact she called him. Instead of asking on phone as to what work has he with her, she asked him about the work when he reached her home. The accused is also young boy of 24 years age, whereas the victim is aged about 25 years. The appreciation of the entire allegations and in the facts and circumstances peculiar to this case, the petitioner makes out a case for release on bail.
8. The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative and stringent conditions. In Sushila Aggarwal, (2020) 5 SCC 1, Para 92, the Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions. In Sumit Mehta v. State of N.C.T. of Delhi, (2013)15 SCC 570, Para 11, Supreme Court holds that while exercising power Under Section 438 of the Code, the Court is ::: Downloaded on - 21/01/2021 20:40:35 :::HCHP 4 duty-bound to strike a balance between the individual's right to personal freedom and the right of investigation of the police. While exercising utmost restraint, the Court .
can impose conditions countenancing its object as permissible under the law to ensure an uninterrupted and unhampered investigation.
9. Given the above reasoning, coupled with the peculiar facts and circumstances of the case, the Court is granting bail to the petitioner, subject to strict terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.
10. In Manish Lal Shrivastava v State of Himachal Pradesh, CrMPM No. 1734 of 2020, after analysing judicial precedents, this Court observed that any Court granting bail with sureties should give a choice to the accused to either furnish surety bonds or give a fixed deposit, with a further option to switch over to another.
11. Given above, the petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. Twenty-five thousand (INR 25,000/-), and shall furnish two sureties of a similar amount, to the satisfaction of the Investigator. Before accepting the sureties, the Attesting Officer must satisfy that in case the accused fails to appear in Court, then such sureties are capable to produce the accused before the Court, keeping in mind the Jurisprudence behind the sureties, which is to secure the presence of the accused.
12. In the alternative, the petitioner may furnish aforesaid personal bond and fixed deposit(s) for Rs. Twenty-five thousand only (INR 25,000/-), made in favour of "Chief Judicial Magistrate, District Kangra, H.P.,"
a) The arresting Officer shall give a time of ten working days to enable the accused to prepare a fixed deposit.
b) Such Fixed deposits may be made from any of the banks where the stake ::: Downloaded on - 21/01/2021 20:40:35 :::HCHP 5 of the State is more than 50%, or any of the stable private banks, e.g., HDFC Bank, ICICI Bank, Kotak Mahindra Bank, etc., with the clause of automatic renewal of principal, and liberty of the interest reverting to the linked account.
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c) Such a fixed deposit need not necessarily be made from the account of the petitioner and need not be a single fixed deposit.
d) If such a fixed deposit is made in physical form, i.e., on paper, then the original receipt shall be handed over to the concerned Court.
e) If made online, then its printout, attested by any Advocate, and if possible, countersigned by the accused, shall be filed, and the depositor shall get the online liquidation disabled.
f) The petitioner or his Advocate shall inform at the earliest to the concerned branch of the bank, that it has been tendered as surety. Such information be sent either by e-mail or by post/courier, about the fixed deposit, whether made on paper or in any other mode, along with its number as well as FIR number.
g) After that, the petitioner shall hand over such proof along with endorsement to the concerned Court.
h) It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. It shall also be open for the petitioner to apply for substitution of fixed deposit with surety bonds and vice-versa.
i) Subject to the proceedings under S. 446 CrPC, if any, the entire amount of fixed deposit along with interest credited, if any, shall be endorsed/returned to the depositor(s). Such Court shall have a lien over the deposits up to the expiry of the period mentioned under S. 437-A CrPC, 1973, or until discharged by substitution as the case may be.
13. The furnishing of the personal bonds shall be deemed acceptance of the following and all other stipulations, terms, and conditions of this bail order:
a) The petitioner to execute a bond for attendance in the concerned Court(s). Once the trial begins, the petitioner shall not, in any manner, try to delay the proceedings, and undertakes to appear before the concerned Court and to attend the trial on each date, unless exempted. In case of an appeal, on this very bond, the petitioner also promises to appear before the higher Court in terms of Section 437-A CrPC.
b) The attesting officer shall, on the reverse page of personal bonds, mention the permanent address of the petitioner along with the phone number(s), WhatsApp number (if any), e-mail (if any), and details of personal ::: Downloaded on - 21/01/2021 20:40:35 :::HCHP 6 bank account(s) (if available), and in case of any change, the petitioner shall immediately and not later than 30 days from such modification, intimate about the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, to the Police Station of this FIR to the concerned .
Court.
c) The petitioner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police officials, or any other person acquainted with the facts of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.
d) The petitioner shall neither stare, stalk, make any gestures, remarks, call, contact, message the victim, either physically, or through phone call or any other social media, nor roam around the victim's home. The petitioner shall not contact the victim.
e) The petitioner shall join the investigation as and when called by the Investigating Officer or any Superior Officer; and shall cooperate with the investigation at all further stages as may be required. In the event of failure to do so, it will be open for the prosecution to seek cancellation of the bail. Whenever the investigation occurs within the police premises, the petitioner shall not be called before 8 AM and shall be let off before 5 PM, and shall not be subjected to third-degree, indecent language, inhuman treatment, etc.
f) In addition to standard modes of processing service of summons, the concerned Court may serve or inform the accused about the issuance of summons, bailable and non-bailable warrants the accused through E-Mail (if any), and any instant messaging service such as WhatsApp, etc. (if any).
[Hon'ble Supreme Court of India in Re Cognizance for Extension of Limitation, Suo Moto Writ Petition (C) No. 3/2020, I.A. No. 48461/2020- July 10, 2020]:
i. At the first instance, the Court shall issue the summons.
ii. In case the petitioner fails to appear before the Court on the specified date, in that eventuality, the concerned Court may issue bailable warrants.
iii. Finally, if the petitioner still fails to put in an appearance, in that eventuality, the concerned Court may issue Non-Bailable Warrants to procure the petitioner's presence and may send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper to achieve the purpose.
14. During the trial's pendency, if the petitioner repeats or commits any offence where the sentence prescribed is more than seven years or violates any ::: Downloaded on - 21/01/2021 20:40:35 :::HCHP 7 condition as stipulated in this order, the State may move an appropriate application before this Court, seeking cancellation of this bail. Otherwise, the bail bonds shall .
continue to remain in force throughout the trial and after that in terms of Section 437-A of the CrPC.
15. Ld. Advocate for the petitioner and the Officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of this bail order, in vernacular and if not feasible, in Hindi.
16. In case the petitioner finds the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even to the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition.
17. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation per law.
18. The SHO of the concerned Police Station or the Investigating Officer shall arrange to send a copy of this order, preferably a soft copy, to the complainant and the victim, at the earliest. In case the victim notices stalking or any violation of this order, she may either inform the SHO of the concerned Police Station or the Trial Court or even to this Court.
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. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.
21. There would no need for a certified copy of this order for furnishing ::: Downloaded on - 21/01/2021 20:40:35 :::HCHP 8 bonds, and any Advocate for the Petitioner can download this order from the official web page of this Court and attest it to be a true copy. In case the attesting officer wants to verify the authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.
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The petition stands allowed in the terms mentioned above.
Anoop Chitkara, Vacation Judge.
January 20, 2021 (sushma).
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