Tsewang Thinles Alias Gupta vs Ut Of Ladakh on 24 November, 2022

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Jammu & Kashmir High Court

Tsewang Thinles Alias Gupta vs Ut Of Ladakh on 24 November, 2022

1. Petitioner has moved this petition under Section 482 Cr.P.C seeking quashment of impugned order passed by the court of Principal District & Sessions Judge Leh Ladakh dated 09.08.2021 whereby the trial court has rejected bail to the petitioner in anticipation of his arrest in case FIR No. 06/2019 dated 10.07.2019 registered with Women's Police Station Leh for commission of offences punishable under Sections 354/354-A RPC r/w Section 9/10 of POCSO Act. It is averred, that petitioner has been the president of the Ladakh Buddhist Association and because of his name and fame and intentions to join the politics he has been framed through the medium of some personal rivalry so that the petitioner may not be able to contest the elections; that the petitioner is commanding respect in the constituency of Leh & Kargil but has been framed in false, frivolous and baseless case to destroy his political carrier by planting the complainant so that he may be kept away from the politics for all times to come on the basis of baseless complaint, as a consequence of which the complaint got converted into full fledge charge-sheet laid by the respondent against the petitioner before the court at Leh; that the petitioner may kindly be admitted to bail in anticipation of his arrest by respondent and a direction may kindly be issued that in the event of the arrest of the petitioner by the respondent or any other private or public person, the petitioner may kindly be directed to be released on bail on such terms and conditions imposed by the Court; that on 10.07.2020 at around afternoon, complainant of the case presented 2 CRM (M) No. 653/2022 herself in the Police Station with a written report to the extent that she is a student of Tata Institute and Social Sciences and in furtherance of her research after meeting the President of Ladakh Buddhist Association had to take his interview and in this context on 17.05.2019 she went to the President of Ladakh Buddhist Association office where the President (petitioner) inappropriately touched her with hand and hugged her with his body and kissed her whereby, the aforesaid FIR came to be registered against the petitioner; that as per the statement made by the complainant/victim before Police, petitioner has been indicted for commission of offences under Sections 354/354-A RPC which have been established against the accused/petitioner and charge-sheet laid against him under Section 354/354-A RPC r/w Section 9/10 of Jammu & Kashmir Protection Of Children from Sexual Offences Act 2018 (POCSO); that no reason has been given in the FIR report for delay in lodging the report and in recording the statement, but because of the political rivalry, an atmosphere of hostility has been created against the petitioner by spreading bad rumors against him whereby, the petitioner apprehends public lynching at the behest of the complainant & police and the interest of the petitioner would be protected only if he is allowed to face the trial in court of law after he is admitted to bail in anticipation of his arrest so that he may be able to defend his case; that the petitioner would cooperate and avail his presence before the trial court.

2. Mr. Mushtaq Ahmed Dar, learned counsel for the petitioner has vehemently argued and sought the bail in favour of the petitioner in anticipation of his arrest in a case FIR No. 06/2019 by projecting arguments, that the charge- sheet has been filed before the court of Principal District & Sessions Judge Leh Ladakh, absconding of petitioner from the case is not willful and deliberate but on the account of the fact that the petitioner is apprehending lynching at the behest of the complainant and police and offences indicted against the petitioner under Sections 354/354-A RPC r/w Section 9/10 of POCSO Act in case FIR No. 06/2019 do not carry punishment of imprisonment for life or death penalty. It is argued, that petitioner/accused is presumed to be innocent till guilt is proved against him, therefore, petitioner has a case of grant of bail in anticipation of his arrest. To support his arguments, learned counsel has relied upon the judgments viz; (i) (2016) 1 Supreme Court Cases 152 (Bhadresh Bipinbhat Sheth vs. State of Gujarat & Anr.), (ii) (2012) 4 Supreme Court Cases 511 (Ramdas Vasu Shetty vs. State of Maharashtra), (iii) (2012) 4 Supreme Court Cases 510 3 CRM (M) No. 653/2022 (Satish vs. State of Haryana), (iv) (2010) 1 Supreme Court Cases 684 (Ravindra Saxena vs. State of Rajasthan), (v) Criminal Bail Application (Stamp) No. 2386/2020 (Rhea Chakraborty vs. The Union of India & State of Maharashtra), (vi) (1980) 2 SCC 565 (Shri Gurbaksh Singh Sibbia & Ors. vs. State of Punjab and Sarbajit Singh & Anr. Vs. State of Punjab),

(vii) Criminal Bail Application No. 3624/2021 (Aryan Shah Rukh Khan vs. The Union of India & Anr.), (viii) Anticipatory Bail Application (ST) No. 2748/2020 (Raviraj Bhagwatiprasad Gupta vs. State of Maharashtra),

(ix) Petition for Special Leave to Appeal (Crl.) No(s). 2907/2021 (Jude Lobo vs. State, NCT of Delhi), (x) Criminal Appeal No. 2406/2009 (Ravindra Saxena vs. State of Rajasthan), (xi) Criminal Petition No. 2727/2018 (Dr. Ankit Gautam vs. State of Karnataka), (xii) Criminal Appeal No. 2271/2010 (Siddharam Satlingappa Mhetre vs. State of Maharashtra & Ors.) & (xiii) Bail Application No. 76/2021 (Basit Bashir Dar vs. UT of J & K).

3. Mr. Vishal Sharma learned DSGI for the respondent though not filed written objections to the bail application, but has orally submitted arguments supported by the judgment rendered by Hon'ble Supreme Court in Criminal Appeal No. 1209/2021 (Prem Shankar Prasad vs. State of Bihar & Anr). It has been argued, that after the investigation in case FIR No. 06/2019 under Sections 354/354-A RPC r/w Section 9/10 of POCSO Act, charge-sheet has been laid against the petitioner/accused in the court of Principal District & Sessions Judge Leh Ladakh but during the course of investigation and even during the trial, the petitioner/accused has absconded and has been proceeded under Section 512 Cr.P.C and even proceeding under Section 87 Cr.P.C has been initiated against him by the trial court whereby, petitioner/accused has been declared absconder who in view of the law laid down by the Hon'ble Supreme Court in the judgment (supra) is not entitled to the concession of the anticipatory bail.

4. I have heard learned counsel for the parties and perused the impugned order dated 09.08.2021 rendered by the court of Principal District & Sessions Judge Leh Ladakh. The impugned order clearly depicts that petitioner/accused has been declared absconder by the trial court as he has neither appeared before the Investigating Agency nor before the trial court during the trial of the case. General warrants of arrest under Section 512 Cr.P.C have been issued against petitioner/accused and even the proceedings against petitioner/accused under Section 87 Cr.P.C for declaring him absconder have been initiated and the trial court has 4 CRM (M) No. 653/2022 categorically held that an absconder has no right to be released on anticipatory bail. In case of "State of Madhya Pradesh vs. Pradeep Sharma"

reported in (2014) 2 SCC 171, Hon'ble Supreme Court held that a person against whom proclamation has been issued and proceedings under Sections 82/83 of Cr.P.C (central) have been initiated, he is not entitled to the benefit of anticipatory bail. Moreso, in the case law (supra) in Criminal Appeal No. 1209/2021 (Prem Shankar Prasad vs. State of Bihar & Anr.) relied by learned DSGI for the respondent, Hon'ble Supreme Court while rejecting anticipatory bail to an absconder/proclaimed offender against whom proceedings under Sections 82/83 of Cr.P.C were initiated for commission of offences under Sections 406/407/468/506 Cr.P.C in Para 7.3, 8 & 9 held as under:

―7.3.... In the case of State of Madhya Pradesh vs. Pradeep Sharma (Supra), it is observed and held by this court that if anyone is declared as an absconder/proclaimed offender in terms of section 82 of Cr.P.C, he is not entitled to relief of anticipatory bail. In paragraph 14 to 16, it is observed and held as under: − ―14. In order to answer the above question, it is desirable to refer to Section 438 of the Code which reads as under:

"438. Direction for grant of bail to person apprehending arrest.--(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non−bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that court may, after taking into consideration, inter alia, the following factors, namely--

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he 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; and

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub− section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.‖ The above provision makes it clear that the power exercisable under Section 438 of the Code is somewhat extraordinary in character and it is to be exercised only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty.

5 CRM (M) No. 653/2022

15. In Adri Dharan Das v. State of W.B. [(2005) 4 SCC 303] this Court considered the scope of Section 438 of the Code as under :

(SCC pp. 311−12, para 16) ―16. Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has ‗reason to believe' that he may be arrested in a non− bailable offence. Use of the expression ‗reason to believe' shows that the belief that the applicant may be arrested must be founded on reasonable grounds. Mere ‗fear' is not ‗belief' for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief of the applicant is based that he may be arrested in non−bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for the court concerned to decide whether a case has been made out for granting of the relief sought. The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. Normally a direction should not issue to the effect that the applicant shall be released on bail ‗whenever arrested for whichever offence whatsoever'. Such ‗blanket order' should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is a device to secure the individual's liberty, it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. On the facts of the case, considered in the background of the legal position set out above, this does not prima facie appear to be a case where any order in terms of Section 438 of the Code can be passed.‖

16. Recently, in Lavesh v. State (NCT of Delhi) [(2012) 8 SCC 730] , this Court (of which both of us were parties) considered the scope of granting relief under Section 438 vis−à−vis a person who was declared as an absconder or proclaimed offender in terms of Section 82 of the Code. In para 12, this Court held as under : (SCC p. 733) "12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as „absconder‟. Normally, when the accused is „absconding‟ and declared as a „proclaimed offender‟, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in 6 CRM (M) No. 653/2022 terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail."

It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail." Thus the High court has committed an error in granting anticipatory bail to respondent No.2 - accused ignoring the proceedings under Section 82−83 of Cr.PC".

―8.... Even the observations made by the High Court while granting the anticipatory bail to respondent No.2 - accused that the nature of accusation is arising out of a business transaction and therefore the accused is entitled to the anticipatory bail is concerned, the same cannot be accepted. Even in the case of a business transaction also there may be offences under the IPC more particularly sections 406, 420, 467, 468, etc. What is required to be considered is the nature of allegation and the accusation and not that the nature of accusation is arising out of a business transaction. At this stage, it is required to be noted that respondent No.2 − accused has been charge−sheeted for the offences punishable under sections 406 and 420, etc. and a charge−sheet has been filed in the court of learned Magistrate Court‖.

―9.... In view of the above and for the reasons stated above, the impugned judgment and order dated 14.08.2019 passed by the High Court granting anticipatory bail to respondent No.2 - accused is un− sustainable and deserves to be quashed and set aside and is accordingly quashed and set aside. However, two weeks' time from the date of pronouncement of this judgment is granted to respondent No.2 to surrender before the concerned Trial Court and thereafter it will be open for respondent No.2 - accused to pray for regular bail, which may be considered in accordance with law and on its own merits. The present appeal is accordingly allowed in the aforesaid terms‖.

By the ratio of the judgment (supra) relied by learned DSGI, the law is no longer res integra that an absconder/proclaimed offender is not entitled to the concession of anticipatory bail. The decisions relied upon by the learned counsel for the petitioner in regard to grant of anticipatory bail to the accused are squarely distinguishable as in none of the decisions, accused has absconded or declared as proclaimed offender. In the case in hand, petitioner/accused indicted in case FIR No. 06/2019 dated 10.07.2019 registered with Women's Police Station Leh for commission of offences punishable under Sections 354/354-A RPC r/w Section 9/10 of POCSO Act has absconded from the investigation and even from the trial and has been proceeded under Section 512 Cr.P.C and even has been declared absconder under Section 87 Cr.P.C by the trial court.

5. In view of the law laid down by Hon'ble Supreme Court in the case law (supra) relied by learned DSGI the trial court has rightly rejected 7 CRM (M) No. 653/2022 anticipatory bail application of the accused. The order impugned dated 09.08.2021 rejecting anticipatory bail to the accused has been passed by trial court in consonance with the provisions of law and relying upon the judgment of the Hon'ble Supreme Court rendered in "Lavesh v. State (NCT of Delhi) [(2012) 8 SCC 730]", the same does not suffer from any perversity or illegality and does not call for any interference from this Court, the same is confirmed and upheld. Petitioner/ accused is directed to surrender before the trial court and thereafter it will be open for him to pray for regular bail which may be considered by the trial court in accordance with law and on its own merits.

6. The present petition being meritless is out rightly rejected and is accordingly, dismissed along with connected applications.

(Mohan Lal) Judge Jammu:

24.11.2022 Manan Whether the order is speaking : Yes/No Whether the order is reportable : Yes/No

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