Himesh Sharma vs State Of Himachal Pradesh on 24 June, 2019

[Cites 11, Cited by 5]

Himachal Pradesh High Court

Himesh Sharma vs State Of Himachal Pradesh on 24 June, 2019

Bench: Anoop Chitkara

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .

Cr.MP(M) No. 1044 of 2019 Order reserved on : 18.6.2019 Date of Decision : June 24 , 2019 Himesh Sharma ...Petitioner.

Versus State of Himachal Pradesh r ...Respondent.

Coram:

The Hon'ble Mr. Justice Anoop Chitkara, Judge.

Whether approved for reporting?1 Yes.

For the petitioner : Mr. Ajay Kochhar, Advocate, for the petitioner.

For the respondent : Ms. Ritta Goswami, Additional Advocate General, Ms. Divya Sood, Deputy Advocate General and Mr. Manoj Bagga, Assistant Advocate General for the respondent/State.

For the complainant : Mr. Nitin Thakur, Advocate, for the complainant.

Anoop Chitkara, Judge.

The present petition is under Section 438 of the Code of Criminal Procedure, seeking anticipatory bail in 1 Whether reporters of Local Papers may be allowed to see the judgment?

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F.I.R. No. 128/2019, dated 4.6.2019, registered at Police Station West, Distt. Shimla, H.P., under Sections 376 of the .

Indian Penal Code.

2. ASI Amender Singh, I.O. Police Station West, Shimla, H.P., was present on the last date, when the matter was heard. He had brought the police file. I have seen the status report(s) as well as the police file to the extent it was necessary for the purpose of deciding the present petition and the same stands returned to the police official. Status report was also taken on record.

3. The gist of the First Information Report and the investigation is as follows:

(a) On 3.6.2019, the Superintendent of Police Shimla, received a complaint through post, which was sent by the victim (name withheld).

This was addressed to the Director General of Police, H.P., Shimla as well as to the Superintendent of Police, Shimla, regarding cheating and sexual exploitation against a police official HC - Himesh Sharma, P.S. Sadar, Shimla.

(b) The victim stated that she works as Junior Steno in the District Courts, Chakkar, Shimla and mentioned her age as 31 years.

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course of her employment. He disclosed to her that he is posted in Police Station Sadar and is unmarried. He would meet her in the working place of her office and would continue to sit for long hours.

(d) She further stated that they would meet each other two or three times every week and they talked to each other daily for hours together, mostly during night.

(e) r She further stated that they would watch movies, visit lonely places like Advance Studies, Jakhoo Temple etc. and during such dates she would object to his sexual advances but every time the would assure her that they would get married.

(f) She stated that on one occasion when they were returning from SRS Cinema ISBT Shimla at about 9.20 p.m., then after reaching home, when she called him on his phone then it was busy for more than twenty minutes. It raised suspicion in her mind and she questioned him as to with whom was he talking for so long, on which he revealed that he was talking to his former girl friend.

(g) She further stated that they would go together to take dinner in various restaurants.

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(h) She further stated that in the month of September, after watching movie, petitioner .

dropped her at her home at Dhanda at 9 p.m. Then on reaching home, after taking tea, he insisted to have sexual intercourse on the pretext that very soon they are going to tie the nuptial knot. She stated that she strongly objected to his advances and conveyed that such relationship prior to marriage was not justified in their culture and since they were going to get married, so he should wait for some time. However, he started an emotional talk regarding their relationship and then she, for the first time had sexual intercourse with him.

(i) After this coitus, she was remorseful and repentant because she had succumbed to his pressures. She conveyed to the accused in very strong terms that he will have to fulfil his promise of marriage because she accepted to have sexual intercourse with him only on such terms.

(j) Thereafter, every evening he would call her and then they would go to Advance Studies, where they would sit till 10.30 p.m.

(k) Later on, she came to know that the accused had physical relationship even with his previous girlfriend. This estranged her and ::: Downloaded on - 28/09/2019 23:47:49 :::HCHP 5 she raised her grouse that he should not have established sexual relationship with her before .

marriage.

(l) Later on, he started threatening the victim that since he works in police he can do anything. After this the victim disclosed everything to her parents and brothers who visited the parents of the petitioner. On 25.2.2019, the mother of the petitioner very bluntly conveyed to the family of the victim that they would marry the petitioner only with a girl of their area.

(m) She has also made general type of allegations which are not relevant to be considered at the time of bail application and one of such allegation is that the petitioner was only spending time with her and whatever she wanted to do, she was free to do.

(n) Hence, F.I.R. under Sections 376 of the Indian Penal Code was registered.

4. I have heard Mr. Ajay Kochhar, learned counsel for the bail petitioner and Ms. Ritta Goswami, learned Additional Advocate General for the respondent/State as well as Mr. Nitin Thakur, learned counsel for the complainant. Written objections to the bail petition have also been handed over to the Court Master of this Court ::: Downloaded on - 28/09/2019 23:47:49 :::HCHP 6 which are taken on record. In these written objections, reference has been made to the judgment dated 15 th April, .

2019 of the Hon'ble Supreme Court which states that sex on the pretext of marriage amounts to rape. Learned counsel for the petitioner states that the accused had joined the investigation as and when the Investigating Officer so directed him. Learned Additional Advocate General did not dispute this averment.

After giving careful consideration to the entire

5. evidence, facts and circumstances, I am satisfied that no purpose will be served if the bail petitioner is sent to judicial custody.

6. I am inclined to grant bail to the petitioner on the following grounds:

(a) In the status report as well as the affidavit filed by the bail petitioner, there is no mention of any previous criminal history.

(b) The petitioner, is a government servant in the police department and is a native and permanent resident of Himachal. Therefore, his presence can always be secured.

(c) The complainant is working in Courts and she was 31 years of age. By no stretch of ::: Downloaded on - 28/09/2019 23:47:49 :::HCHP 7 imagination it can be believed that she did not know the consequences of what she was doing.

.

(e) Prima facie, it appears that this F.I.R. is a pressure tactics to force the petitioner to marry her.

(f) If the sexual intercourse was under

misconception of the fact, under Section 90 of the Indian Penal Code, then it shall be during trial to establish guilt of the petitioner and the incarceration of the petitioner cannot be pre- poned at this stage.

(g) I am of the considered view that, prima facie, petitioner has made out a case for grant of bail. His custodial interrogation is not required at all

7. I am also placing reliance on the following judicial precedent which relates to the holdings of the Hon'ble Supreme Court on somewhat similar circumstances :

(a) In Dr. Dhruvaram Murlidhar Sonar vs. State of Maharashtra & others, Criminal Appeal No. 1443 of 2018 (Arising out of SLP (Criminal) No. 6532 of 2018), (Division Bench), decided on 22.11.2018, the Hon'ble Supreme Court holds that:

"24. ... ... She had taken a conscious decision after active application of mind to the ::: Downloaded on - 28/09/2019 23:47:49 :::HCHP 8 things that had happened. It is not a case of a passive submission in the face of any .

psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. We are of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant. We are also of the view that since complainant has failed to prima facie show the commission of rape, the complaint registered under Section 376(2)(b) cannot be sustained."

8. A Co-ordinate Bench of this Court in Cr.MP(M) No. 1069 of 2011, titled as Lalit Manta vs. State of H.P., decided on 28.12.2011, has held as under:

"10. ... ... The prosecutrix of her own went with the petitioner and took tea in a dhaba thereafter she stayed voluntarily with the petitioner in the hotel where room was booked by the petitioner. The prosecutrix was studying in +2 class and she cannot be equated with a rustic girl. She knew what she was doing. The possibility cannot be ruled out that out of emotions, desire and both of them ::: Downloaded on - 28/09/2019 23:47:49 :::HCHP 9 being young, the prosecutrix participated in the sexual act." ...

.

9. Further, a Co-ordinate Bench of this Court in Cr.MP(M) No. 1408 of 2014, titled as Deepak vs. State of H.P., decided on 29.12.2014, has held as under:

"2. ... ... In other words, in case after the initial sexual encounter inter se her as well as the bail applicant, the bail applicant refused to marry her, in the event of hers having insisted upon him, his tying of a marital knot with her, she ought not to have then continued to have sexual intercourses with him. Her repeated sexual indulgences thereafter with the bail applicant wanes the effect, if any, of the pretext under which she initially succumbed to the sexual overtures of the bail applicant. Consequently, this Court holds with formidability that the prosecutrix is prima facie constituting false allegations against the bail applicant." ...

10. Also, a Co-ordinate Bench of this Court in Cr.MP(M) No. 1144 of 2015, titled as Baldev Raj vs. State of H.P., decided on 6.8.2015, has held as under:

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"8. ... ... 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. In the result the present petition is allowed. In the event of arrest of the petitioner, he shall be released on bail, in connection with the FIR mentioned above, on his furnishing personal bond in the sum of `50,000/- (rupees fifty thousand only) with one surety in the like amount to the satisfaction of the Arresting Officer.

12. This Court is granting the protection subject to the conditions mentioned in this order. The petitioner undertakes to comply with all directions given in this order and the furnishing of bail bonds by the petitioner is acceptance of all such conditions:

a) The petitioner is directed to join the investigation as and when called by the Investigating Officer. It shall be open for the Investigating Officer to call him as and when he ::: Downloaded on - 28/09/2019 23:47:49 :::HCHP 11 feels such a necessity. The petitioner undertakes to appear before the Investigating Officer as and when directed to do so. However, whenever the .

investigation takes place within the boundaries of the Police Station or Police Post, then the petitioner shall not be called before 9 A.M and shall be let off before 5 p.m.

b) The petitioner shall neither influence nor try to control the investigating officer, in any manner whatsoever.

c) The petitioner undertakes not to contact the complainant, to threaten or browbeat her or to use any pressure tactics.

d) Keeping in view the fact that the petitioner is working in the police department, therefore, it is clarified that if the petitioner tries to threaten, browbeat or put any kind of pressure tactics on the complainant, then it shall be open her to file a petition for cancellation of the bail under Section 439(2) Cr.P.C. before this Court.

e) 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.

f) The Petitioner shall not hamper the investigation.

g) In case the of the launching of the prosecution, the petitioner undertakes to attend the trial and to appear before the Court which issues the summons ::: Downloaded on - 28/09/2019 23:47:49 :::HCHP 12 or warrants and shall furnish fresh bail bonds to the satisfaction of such Court.

13. It is clarified that the present bail order is only with respect to the above mentioned FIR. It shall not be construed to be a blanket order of bail in all other cases, if any, against the petitioner.

14. Any observation made herein above 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 herein above.

Petition stands allowed in the aforesaid terms.

Copy Dasti.

(Anoop Chitkara), Judge.

    June 24    , 2019 (PK)






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Himachal Pradesh High Court