Himachal Pradesh High Court
Sanjay Kumar Alias Kalu Son Of vs State Of Himachal Pradesh on 16 March, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 16th DAY OF MARCH, 2022
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BEFORE
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CRIMINAL MISC.PETITION (MAIN) NO.214 OF 2022
Between:
SANJAY KUMAR ALIAS KALU SON OF
SHRI GIAN CHAND R/O VILLAGE KOTLI,
P.O. GUNEHAR, TEHSIL BAIJNATH,
DISTRICT KANGRA (HP) AGE ABOUT 30
YEARS PRESENTLY CONFINED IN
JUDICIAL CUSTODY DISTRICT JAIL
DHARAMSHALA, DISTRICT KANGRA,H.P.
r ......PETITIONER
(BY MR. LAKSHAY THAKUR, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH ....RESPONDENT
(BY MR. HEMANT VAID ADDITIONAL
ADVOCATE GENERAL)
Reserved on 07.03.2022
Decided on 16.03.2022
Whether approved for reporting?
_______________________________________________________________
This petition coming on for orders this day, the Court passed
the following:
ORDER
Petitioner, invoking provisions of Section 439 of code of Criminal Procedure (Cr.P.C), has approached this Court seeking regular bail in case FIR No. 58 of 2021 dated 09.04.2021, ::: Downloaded on - 16/03/2022 20:13:57 :::CIS 2 registered in Police Station Baijnath , District Kangra, H.P. under Sections 452,376,323 and 506 of Indian Penal Code (IPC).
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2. Status report stands filed, wherein it is stated that on 09.4.2021, complainant alongwith her mother-in-law came to the Police Station and submitted a compliant stating therein that on 07.04.2021, complainant was sleepling alone, alongwith her children, at her home and during night petitioner made a call to her stating that he was coming to her in her house, whereupon complainant had asked him not to come stating that she was alone at home and further that in case, petitioner would commit any wrong act then she would raise alarm.
According to complaint, by that time, petitioner knocked at door of her house whereupon complainant woke-up and opened the door and petitioner came in, pushed her and showed her knife. Due to push complainant fell down and received injuries on her head and eyes and fell unconscious. Petitioner undressed the complainant and violated her. It has been further stated that complainant woke-up on shaking by her daughter and at that time she found her completely naked whereupon her daughter made her to wear clothes.
3. It has also been stated in the complaint that petitioner used to call complainant in the hotel and had been saying that on disclosing it, he would upload her film/video ::: Downloaded on - 16/03/2022 20:13:57 :::CIS 3 prepared by him, on Face Book. According to complainant, her mother-in-law and father-in-law were labourers and were .
residing in Chamba. Her husband was residing at Manali.
Complainant had informed her parents-in-law telephonically about it, and her mother-in-law came and took her to the Doctor and brought to the Police Station for lodging the complaint. Lastly, it has been stated that complainant was ailing and had been taking medicine daily and was not in good condition.
4. On the basis of aforesaid complaint, FIR was registered and finding evidence of commission of offence, petitioner was arrested on 09.04.2021 at 10.40 p.m. After remanding eight days in police remand, petitioner has been sent in Judicial custody on 16.04.2021 and since then he is in jail.
5. During investigation, statement of complainant has also been recorded before the learned Additional Chief Judicial Magistrate, Palampur under Section 164 Cr.P.C, wherein the complainant has reiterated the incident. It has also been stated that petitioner had been threatening to abduct her and supply in the hotel and also to shoot her film/video and upload the same on Face Book.
6. Apart from it, supplementary statement of complainant has also been recorded under Section 161 ::: Downloaded on - 16/03/2022 20:13:57 :::CIS 4 Cr.P.C.,wherein complainant has stated that though she had stated in her complaint that petitioner had been calling her in .
the hotel but she had not visited any hotel and further that she had stated about preparation of film/video by the petitioner but petitioner had not made any video or taken photographs of complainant because complainant had not met petitioner either before or after 06.04.2021/07.04.2021 when petitioner had committed the offence on 06.04.2021/07.04.2021 about which complainant had informed her mother-in-law on 07.04.2021 and petitioner had only threatened to upload her film/video on Face Book, and therefore, she had mentioned in the complaint about this fact.
7. In her supplementary statement, complainant has also stated that her mother-in-law came on 08.04.2021, and on 09.04.2021 she and her mother-in-law visited Up-Pradhan of the Gram Panchayat but Up-Pradhan had advised her to lodge a complaint with the Police. According to the complainant, violation of her person by petitioner was not disclosed to Up-
Pradhan, rather she had informed the Up-Pradhan that petitioner had beaten her and threatened her by showing knife.
As per this statement, violation of person was disclosed by complainant to her mother -in-law only and she had submitted a complaint to Deputy Superintendent of Police at Baijnath, who ::: Downloaded on - 16/03/2022 20:13:57 :::CIS 5 had sent the same to the Police Station by hand through complainant.
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8. Statement of daughter of complainant has also been recorded by the police, wherein she has stated that during the night of 06.04.2021/07.04.2021, when she was going to washroom, she noticed that her mother was sleeping in adjoining room without clothes and she made her mother to put on clothes and her mother asked her to go to her room whereupon she had returned to her room.
9. In the status report, it has been stated that Call Details Record of mobiles/SIMs being used by the petitioner and complainant has been obtained and on perusal thereof, it has been found that petitioner and complainant had talks for 93 times during 01.04.2021 to 08.04.2021,whereas no call was found to have been made at 1-1.30.a.m. on 07.04.2021 by the petitioner to the complainant. This information in record, is contrary to the claim of the complainant that she had never met petitioner either before or after 06/07.04.2021 and that petitioner had called her during night at about 1-1.30 a.m..
10. Referring the submissions of complainant made in the complaint, statement recorded under Section 164 Cr.P.C and supplementary statement, learned counsel for the petitioner has argued that version of the petitioner is not reliable rather it appears to be a case of copulation with mutual ::: Downloaded on - 16/03/2022 20:13:57 :::CIS 6 consent which may have been noticed by the child whereupon mother-in-law came to know about it and, therefore, complaint .
has been lodged with the police. It has been submitted on behalf of petitioner that it was not possible to violate a person of young lady forcibly after hitting her in a house where children of lady were also sleeping. According to him, a person can dare to enter a house of a lady only with consent of the lady and on information given by the lady about the situation inside the house. It has been contended that to call each other for 93 times during a span of one week is a pointer reflecting nature of the relation between the complainant and the petitioner and that the alleged act, if any taken place, was nothing but a meeting of the petitioner and complainant with mutual consent which has been given a colour of forcible violation of the complainant on noticing it by young child.
11. In view of facts and circumstances of present case and taking into consideration various statements of the complainant, Call Details Record in comparison to claim of the complainant, I am of the opinion that at this stage, petitioner deserves to be enlarged on bail.
12. Accordingly, present petition is allowed and petitioner is directed to be enlarged on bail, subject to his furnishing personal bond in the sum of Rs.1,00,000/- with one ::: Downloaded on - 16/03/2022 20:13:57 :::CIS 7 surety in the like amount to the satisfaction of trial Court upon such further conditions as may be deemed fit and proper by the trial .
Court, including the conditions enumerated hereinafter, so as to ensure presence of petitioner/accused at the time of trial:-
(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required;
(ii) that the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to Court or to any Police Officer or tamper with the evidence.
He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;
(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;
(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;
(v) that the petitioner shall not misuse his liberty in any manner;
(vi) that the petitioner shall not jump over the bail;
(vii) that the petitioner shall keep on informing about the change in address, landline number and/or mobile number, if any, for his availability to Police and/or during trial;
(viii) that the petitioner shall not leave India without permission of the Court.
::: Downloaded on - 16/03/2022 20:13:57 :::CIS 813. It will be open to the prosecution to apply for .
imposing and/or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.
14. In case the petitioner violates any conditions imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.
15. Learned trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.
15. Observations made in this petition hereinbefore shall not affect merits of the case in any manner and are strictly confined for the disposal of the bail application.
16. The petitioner is permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.
::: Downloaded on - 16/03/2022 20:13:57 :::CIS 9The petition stands disposed of in the aforesaid terms.
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Dasti copy on usual terms.
(Vivek Singh Thakur), 16 March, 2022 Judge.
(veena)
r to
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