Punjab-Haryana High Court
Savita vs State Of Haryana on 29 February, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:029174
CRM-M-2524-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-2524-2024 (O&M)
Reserved on: 06.02.2024.
Pronounced on: 29.02.2024.
Savita
... Pe oner
Versus
State of Haryana
...Respondent
CRM-M-411-2024 (O&M)
Sub Inspector/SHO Rajbir Singh
... Pe oner
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present:- Mr. Rakesh Nehra, Sr. Advocate with
Mr. Vikalp Hooda, Advocate
for the pe oner (In CRM-M-2524-2024).
Ms. Shivani Jaglan, Advocate
for the pe oner (In CRM-M-411-2024).
Mr. R.K. Singla, DAG, Haryana.
***
ANOOP CHITKARA, J.
FIR No. Dated Police Sta,on Sec,ons
205 14.11.2023 Bond Kalan, District 7, 7A, 13(1) and 13(2) of the Preven on
Charkhi Dadri, of Corrup on Act, 1988 and Sec ons
Haryana. 384, 389/34 IPC (added later on).
1. Ms. Savita, who was an Assistant Sub Inspector of Police, and Rajbir Singh, who was a Sub Inspector of Police and posted as SHO, apprehending arrest in the above cap oned FIR, have come up before this court under Sec on 438 CrPC seeking an cipatory bail, on the allega ons of misusing their official posi ons and conspiring with the vic m's Advocate, and probably also with the alleged vic m of rape, and facilitated a compromise between the vic m and the accused for Rs. Twelve lacs, out of which the Police officials and the Advocate received Rs. Eight lacs, and aBer the accused agreed to pay the money, the vic m refused to undergo any medical examina on and finally in her statement recorded under 164 CrPC by the Judicial Magistrate, stated on oath that nothing was done to her; however when the higher police officials heard about 1 1 of 19 ::: Downloaded on - 01-03-2024 05:01:50 ::: Neutral Citation No:=2024:PHHC:029174 CRM-M-2524-2024 the misdeeds, they inquired into the maGer and registered the present FIR.
2. As per pe ons, both the pe oners have clean antecedents.
3. I have heard counsel for both the par es and gone through the record of both the pe ons.
4. Pe oners' Advocates pray for bail by imposing any stringent condi ons including voluntary declara on of their assets as well as of their spouses to demonstrate their honesty. The pe oners' counsel contended that custodial interroga on and pre-trial incarcera on would cause an irreversible injus ce to the pe oners and family.
5. The Counsel appearing for the State has strenuously opposed the bail and submiGed that given the serious nature of allega ons, the pe oners' custodial interroga on is necessary for recovery of the share they had received out of Rs. Twelve lacs paid by the accused and to understand their modus operandi and find out how many more persons were en ced, and honey trapped.
6. The facts of the case are taken from FIR (Annexure P-1, in CRM-M-411-2024), which was registered on 14.11.2023 based on a complaint made by Karambir Singh, Security In-charge, Office of Superintendent of Police, Charkhi Dadri. On 21.7.2022, i.e., around one year and three months earlier to the registra on of the FIR cap oned above, another FIR No. 136 dated 19.7.2022 under Sec ons 376, 506 IPC was registered at the instance of the vic m 'K', wife of Vikki against Jitender Kumar alias Subla. The complainant received secret informa on that a dubious compromise had occurred in FIR No. 136 under sec on 376 IPC. The pe oner ASI Savita, and Smt. Naresh, Advocate of Charkhi Dadri, and one Head Constable, Sanjay Kumar, had conspired and extorted Rs. Twelve Lacs (INR ₹12,00,000/-) from Jitender Kumar, who had been arraigned as an accused in FIR No. 136 under 376 IPC. The vic m 'K', SI/SHO Rajbir Singh (No. 526) (pe oner), ASI Savita (No. 298) (pe oner), HC Sanjay, and Smt. Naresh, the Advocate, distributed the hush money, out of which the vic m 'K' got Rs. four lacs, and the remaining eight lacs were divided amongst others. ABer that, the vic m 'K' recorded her statement under Sec on 164 CrPC, in which she resiled from the allega ons of rape by Jitender, as men oned in her complaint, and even refused to undergo her medical examina on and stated that nothing had happened with her. The secret informer also said that to accomplish the compromise, the vic m, 'K,' was made to sleep in the house of Smt. Naresh Advocate during the night so that she does not change her mind. The informer further said that the compromise had taken place because of the involvement of HC Sanjay and Smt. Naresh, Advocate, and it had become the talk of the town, and 2 2 of 19 ::: Downloaded on - 01-03-2024 05:01:51 ::: Neutral Citation No:=2024:PHHC:029174 CRM-M-2524-2024 people were complaining that the police were fueling the corrup on.
7. ABer receipt of secret informa on that Jitender Singh paid Rs.12,00,000/- to seGle the dispute with vic m 'K,' who had taken Rs.4,00,000/- also found involvement of four persons, namely ASI Savita, SI/SHO Rajbir Singh, Smt. Naresh, Advocate, and HC Sanjay had taken Rs.8 lac, inter se. Based on this secret informa on as well as prima facie inquiry and verifica on of allega ons, FIR No.205 was registered on 14.11.2023, and an inves ga on commenced.
8. Counsel for the pe oners extensively argued the maGers on many dates. Vide order dated 18.01.2024 passed in CRM-M-2524-2024, this Court stayed the arrest of pe oner-ASI Savita when the pe oner's counsel had stated that she would demonstrate her honesty by declaring her assets. Later, the same relief was given to co- accused SI/SHO Rajbir Singh vide order dated 23.01.2024 passed in CRM-M-411-2024. ABer that, the pe oners voluntarily complied with the said order and declared their assets and also stated that they would not claim such declara ons as self-incrimina on or viola on of their rights under Ar cles 20 & 21 of the Cons tu on of India, Indian Evidence Act, or any other law in force. While passing the order dated 29.1.2024, this Court had also directed the State to file a fresh reply as per paragraph 6 of the order dated 18.1.2024. Paragraph 6 of the order dated 18.1.2024 reads as follows: -
"6. Considering the nature of allega ons, this court feels appropriate that the concerned DySP file a specific reply by men oning the following facts which are required to adjudicate this pe on in a pure legal way: -
(i) Copy of the ini al FIR No.136 dated 19.07.2022 registered under Sec ons 376 & 506 IPC at Police Sta on Bond Kalan;
(ii) Copy of the statement of vic m 'K' recorded by the concerned Judicial Magistrate under Sec on 164 CrPC;
(iii) Copy of police report filed for cancella on of FIR/closure of the FIR and photocopy of the order passed by the concerned Court explaining such closure report/cancella on report;
(ii) What was the age of niece of Vikki-husband of vic m 'K' who had accompanied to their home;
(iv) How much bribe amount is yet to be recovered from all the accused;
(v) How much bribe amount is yet to be recovered from the pe oner Savita".
9. ABer that, the concerned DySP filed a detailed reply dated 5.2.2024 and a translated copy of FIR No.136 dated 19.7.2022 (Annexure R-1). The said translated version of the FIR reads as follows: -
FIR No. 136 dated 19.07.2022 registered under Sec ons 376 & 506 IPC at Police Sta on Bond Kalan That a complaint No. 454-5D dated 19.07.2022 has been received in PS 3 3 of 19 ::: Downloaded on - 01-03-2024 05:01:51 ::: Neutral Citation No:=2024:PHHC:029174 CRM-M-2524-2024 Bond Kalan having following contents: -
"To, The SHO PS Bond Kalan. Applica on for taking legal ac on against Jitender @ Subla S / o Chander R / o Nimari, Charkhi Dadri. Sir, it is submiGed that I Kajal age 21 years W/o Wikki caste Dhanak is resident of village Bond Kalan and was married on 15.10.2021. Jitender @ Subla, who is friend of my husband frequently visits our house and asked my husband to bring his wife to his home also. Today he called my husband on phone thrice and invites us to his house for tea. ThereaBer, I, my husband along with niece Kiran went to his house where he was found alone. When we asked about his wife, he told us that she has gone to school and offered us cold water and asked my husband to go to Jamindar Furniture House and bring Rs. 1.5 lacs. My husband went to fetch the money and Jitender asked my niece to go in drawing room so that he may talk to me in person and leB Kiran in the drawing room and returned back. I was siRng on a chair and he put his hand on my chest and waist and commiGed rape with me. ABer some me my husband came and we return to our house and told everything to my husband. Strict ac on be taken against above Jitender @ Subla".
10. The concerned DySP has also annexed a translated copy of the statement of Kajal (Annexure R-2) recorded under Sec on 164 CrPC, which reads as under: -
"3. FIR No. 136 dated 19.07.2022 registered under Sec ons 376 & 506 IPC at Police Sta on Bond Kalan Ques: What is your name and age?
Ans: My name is Kajal age 21 years.
Ques: What is your educa onal qualifica on?
Ans: I am illiterate.
Ques: Whether you read or write Hindi?
Ans: Yes, I can only write my name in Hindi.
Ques: Are you recording this statement as per your will. Ans: Yes Statement of Kajal W/o Vikki age 21 years resident of Bond Kalan PS Bond kalan district Charkhi Dadri 'Stated that nothing has been done with me. I do not want to ini ate any ac on and do not want to name anyone wrongly. Nothing wrong has been commiGed with me and I do not want to say anything more".
Iden fied by ASI Savita PS Bond Kalan Sd/ CJM Charkhi Dardi 20.07.2022 at 01.45 PM
11. Given the fact that the vic m 'K' did not allege any sexual act, as such, there is no requirement to conceal her iden ty because Sec on 228-A IPC applies only to the vic m of certain offenses, including rape. When the vic m 'K' had explicitly stated that nothing was done with her, as such, there is no bar to reveal her iden ty.
12. Based on the vic m's statement, an SIT was cons tuted by the Superintendent of Police headed by DSP/HQ, Charkhi Dadri, and during the inves ga on, allega ons made in FIR were found false, and accordingly, a cancella on report was prepared and filed. It would be appropriate to refer to the relevant por on of the said cancella on report 4 4 of 19 ::: Downloaded on - 01-03-2024 05:01:51 ::: Neutral Citation No:=2024:PHHC:029174 CRM-M-2524-2024 (Annexure R-3), which reads as under: -
"2. ...Upon receipt of above complaint in the police sta on offence under sec on 376/506 is made out and thus instant FIR was got registered and ini al inves ga on of the case was conducted by L/ASI Savita No. 278/RTK PS Bond Kalan. During inves ga on, vic m was taken to GH Dadri for medical examina on. However, vic m refused to undergo sexual medical examina on. On 20.07.2022, statement of vic m was got recorded under sec on 164 Cr.P.C. in the learned Court. The vic m stated in her statement recorded under sec on 164 Cr.P.C. that nothing has been done with me. I do not want to ini ate any ac on and do not want to name anyone wrongly. Nothing wrong has been commiGed with me and I do not want to say anything. Vic m was got counseled before the counseling Advocate in which she also stated that nothing wrong has happened to her. ThereaBer, an SIT was cons tuted in the case by Superintendent of Police headed by Virender Singh HPS DSP/HQ, Charkhi Dadri and inves ga on in the case was conducted by SI Dilbag Singh I/C CIA under the supervision of SIT head. During inves ga on, allega ons leveled in the FIR were found false. Verifica on in the case was conducted by DSP/HQ, Dadri and allega ons in the FIR were found false. Hence, cancella on report has been prepared in the case and the same is being sent to higher authori es for acceptance".
13. A perusal of the cancella on report explicitly points out that even the senior officers of the level of DySP conducted an inves ga on, and they found the allega ons false. At that me, they were unaware of the conspiracy hatched by ASI Savita and SI/SHO Rajbir Singh, Smt. Naresh, Advocate, and HC Sanjay, etc.
14. On 5.10.2023, while hearing the vic m on the cancella on report, the CJM, Charkhi Dadri, passed the following order, "Cancella on report presented. It be checked and registered. Complainant Kajal appeared before the Court in person. The complainant stated that she is not sa sfied with the police inves ga on and she wants to file a protest pe on against the cancella on report. She further stated that she will file the protest pe on on next date of hearing. Keeping in view her statement, present case is adjourned to 17.01.2024 for filing protest pe on".
15. On 13.01.2024, reply was filed in CRM-M-411-2024 in the present FIR. It would be relevant to refer to the relevant por on of the said reply dated 13.01.2024, filed by concerned DySP, which reads as under: -
"3. That during inves ga on of above men oned case, In-charge Security, District Police Office, Charkhi Dadri in mated vide his report dated 21.07.2022 that Security Agent PS Bond Kalan has informed that during the night intervening 19.07.2022, accused Jitender along with Gajender @ Bun son of Sawant Singh Rathi, Ex-Sarpanch Village Basana district Rohtak, AAA (Name withheld) Lady Advocate, Bar Associa on, Charkhi Dadri and HC Sanjay Kumar No. 48/DDR were present in the official room of L/ASI Savita No. 298/RTK at PS Bond Kalan and during this mee ng the maGer of above men oned rape case was compromised in Rs. 12.00 lacs. Out of these 12.00 lacs, Rs. 4.00 lacs were handed over to vic m XXX and remaining Rs. 8.00 lacs were shared by Insp. Rajbir Singh 5 5 of 19 ::: Downloaded on - 01-03-2024 05:01:51 ::: Neutral Citation No:=2024:PHHC:029174 CRM-M-2524-2024 No. 526/RR, I/O of the case namely L/ASI Savita No. 298/RTK, HC Sanjay Kumar No. 48/DDR and Advocate Smt. Naresh. ThereaBer, the vic m was made to sleep in the house of AAA Lady Advocate, so that she may not be able to change her statement amoun ng to compromise in the case and later on 20.07.2022, statement of vic m Kajal were got recorded u/s 164 in which she resiled from her earlier allega ons leveled in FIR.
4. That upon receipt of said report Insp. Rajbir Singh No. 526/RR (Present pe oner), L/ASI Savita No. 298/RTK and HC Sanjay Kumar No. 48/DDR were placed under suspension and a regular departmental enquiry was ini ated against that for their gravest act of misconduct, besides tarnishing the image of police in public. The enquiry officer held the pe oner and co-delinquents guilty of charges and the punishing authority awarded a punishment of reduc on in rank from Inspector to Sub-Inspector to the pe oner vide order dated 21.02.2023. Co delinquent/accused L/ASI Savita No. 298/RTK and HC Sanjay Kumar No. 48/DDR were awarded a punishment of dismissal from service by Superintendent of Police, Charkhi Dadri vide order dated 09.03.2023. The delinquent/accused preferred appeals against the orders of dismissal from service and the same was reduced to reduc on in their respec ve ranks. However, revision pe on of co-accused/delinquents was dismissed by the Director General of Police, Haryana.
5. That the relevant departmental enquiry remained in process with higher authori es in connec on with Appeals and Revision Pe on filed by the accused/delinquents and aBer receipt of the same from the office of Director General of Police, Haryana, Superintendent of Police, Charkhi Dadri perused the file as well as source report against the delinquent/accused and sent the same to SHO PS Bond Kalan for taking necessary legal ac on case on 14.11.2023 as criminal offence was also made out in the maGer, and hence instant case FIR No. 205 dated 14.11.2023, under Sec ons 7, 7A, 13(1), 13(2) of Preven on of Corrup on Act (under sec ons 384,389,34 of IPC added later on) PS Bond Kalan was registered against the pe oner and co-accused.
6. That during the course of inves ga on conducted by the answering deponent, Jitender @ Subhla son of Chander Bhan resident of village Nimli, who was accused in case FIR No. 136 dated 19.07.2022 u/s 376/506 IPC PS Bond Kalan was joined in inves ga on on 20.11.2023 and his statement sec on 161 Cr.P.C. were recorded in which Jitender @Subhla has corroborated the allega ons leveled against the pe oner in present FIR. ThereaBer, during inves ga on co-accused AAA Lady Advocate, District Courts Charkhi Dadri was granted an cipatory bail by the learned Court of Addi onal Sessions Judge, Charkhi Dadri vide order dated 24.11.2023. During inves ga on statements of witnesses namely Amit son of Sukhbir resident of village Basana, Chanderbhan son of Sube Singh resident of village Nimali, Hardeep son of Sada Ram resident of Nimali were recorded on 11.12.2023, who have duly corroborated the allega ons against the pe oner leveled in FIR and have categorically stated that they have provided the hush money Rs. 12,00,000/- to the accused to seGle the FIR out of which Rs. 2,50,000/- were given to accused HC Sanjay Kumar in the room of SHO/pe oner.
7. That allega ons against the pe oner/accused are grave and serious in nature and thus custodial interroga on of the pe oner is required to recover remaining bribe amount, and to ascertain the involvement of other accused and to unearth the en re modus-operandi of this dirty 6 6 of 19 ::: Downloaded on - 01-03-2024 05:01:51 ::: Neutral Citation No:=2024:PHHC:029174 CRM-M-2524-2024 game. accused/ pe oner is the mastermind and main culprit under whose command the en re crime has been commiGed. It is further submiGed that custodial interroga on of the pe oner is also required to proceed with the inves ga on in the scien fic manner by geRng Brain Mapping Test, Polygraph Test, etc. of the pe oner conducted, and to collect informa on about details of all his mobile phones through which he was maintaining nexus with rest of the accused persons and to recover these mobiles. The inves ga on of the case is at the ini al stage and it would be difficult to unearth the en re network, if pre-arrest bail is granted to the pe oner, who is the main accused. The case is under inves ga on and no accused has been arrested so far."
16. Adjudica on of these bail pe ons required peeping into the earlier FIR. To understand the modus operandi of the crime of sextor on commiGed against Jitender, it would be appropriate to assess the allega ons made by vic m 'K' in the FIR, which she later retracted in her statement under Sec on 164 CrPC. On 19.7.2022, 'K,' wife of Vikki, had complained to the SHO, Police Sta on Bond Kalan, Charkhi Dadri, against Jitender Kumar and had alleged that she was 21 years of age and was married to Vikki on 15.10.2021. It means she married Vikki around nine months before the alleged incident. She had alleged that her husband was a friend of Jitender, and on this account, Jitender used to visit their home on numerous occasions, and invited him and his wife to his house. On 19.7.2022, Jitender called Vikki, her husband, three mes, invi ng them over for a cup of tea. On this, 'K', her husband, and her husband's niece, went to his house. Upon reaching out, they asked Jitender about his wife's whereabouts, and he told them that his wife had gone to school. ABer that, Jitender offered them cold water and asked Vikki to visit a furniture house and bring Rs.1,50,000/-. On this, Vikki went to take that money. ABer that, Jitender told their niece to go to the drawing-room by telling her he needed to speak to 'K'. ABer moving niece to the drawing room, when Jitender returned to the room where 'K' was siRng, he moved his fingers on her waist and breast and commiGed rape upon her. ABer some me, her husband Vikki came, and then they returned to their home, where she told her husband about the occurrence. ABer that, they went to the Police Sta on and made the complaint above. Vic m 'K' refused to undergo her medical examina on, and when 'K' was produced before the CJM, Charkhi Dadri, she did not support the contents of the FIR. ABer that, an SIT was cons tuted, and a cancella on report was prepared on 19.10.2022.
17. A perusal of the report under Sec on 173 CrPC, seeking closure of the case, men ons that the SIT was cons tuted by the Superintendent of Police, which was headed by Virender Singh, DySP, and SI Dilbagh Singh, In-charge CIA. A reference to the sequence of events and the en re episode explicitly points out that none of these two officers were involved in the conspiracy or sextor on, and they were not even aware of 7 7 of 19 ::: Downloaded on - 01-03-2024 05:01:51 ::: Neutral Citation No:=2024:PHHC:029174 CRM-M-2524-2024 any such compromise. They inves gated the maGer and did not find any truth in the allega ons levelled by the vic m 'K'.
18. To understand the nature of the crime, this Court vide order dated 18.1.2024 had directed the concerned DySP to point out the age of the niece of Vikki, who had accompanied 'K' to Jitender's house. In addi on to the inves ga on conducted by the Special Inves ga on Team cons tuted by the Superintendent of Police, this Court wanted to analyse the veracity of allega ons made by 'K.' In the reply dated 5.2.2024, the concerned DySP annexed a cer ficate dated 19.8.2017 issued by Middle Head, Government Sr. Secondary School, Koelpur-Khetawas (JJR) in respect of niece, wherein it is cer fied that as per the record of the school, her date of birth is 3.4.2005 and she was a student of seventh standard. Thus, on the date of incident, i.e., 19.7.2022, the age of their niece was 17 years, three months, and 16 days.
19. In the proximity of a young girl who had aGended school, was more than seventeen years of age, and thus was not an infant who would be oblivious to her surroundings, it cannot be presumed that any voices, commo on, and change of behavior would not have come to the aGen on of her niece, leaving something amiss in the narra ve and thereby affec ng 'K's credibility. In addi on to the age of the niece of K's husband, even the inves ga on conducted by SIT did not find any truth in the allega ons of 'K' and closed the case.
20. Regarding the sextor on of money from Jitender Kumar @ Subla, he has not filed any complaint. It was the secret informa on on payment of hush money, based on which the police had ini ated an inquiry, and later, he corroborated the allega ons.
21. Although the pe oners are not en tled to bail on merits; however, they are en tled to protec on under Ar cle 14 of the Cons tu on of India because one of the similarly placed co-accused, Smt. Naresh, Advocate, was granted bail by the Addi onal Sessions Judge, Charkhi Dadri, vide order dated 24.11.2023 in CIS No.BA-671/23. In the said order, the Sessions Court had also discussed Sec on 126 of the Indian Evidence Act, i.e., the privileged rela onship between the Advocate and her client. While gran ng bail to Smt. Naresh, Advocate, the concerned Court extensively dealt with every aspect. It concluded that the allega ons are general. The said Advocate's implica on was found suspicious when there was no prima facie evidence that suggested her ac ve par cipa on in unethical financial deals. However, Smt. Naresh, Advocate being a woman was never a primary considera on while giving bail. On an enquiry from the State, it is explicitly men oned that the State of Haryana did not challenge the said order before this Court by filing an applica on for cancella on of bail. Paragraph 8 of the reply 8 8 of 19 ::: Downloaded on - 01-03-2024 05:01:51 ::: Neutral Citation No:=2024:PHHC:029174 CRM-M-2524-2024 dated 13.1.2024 explicitly men ons that the pe oner's case is different from that of Smt. Naresh, Advocate, and as such, they are not en tled to bail on parity.
22. The pe oners are also en tled to bail on the grounds of parity, which flows from Ar cle 14 of the Cons tu on of India and guarantees the equality before law and the equal protec on of the laws within the territory of India as a fundamental right. Solely because the pe oners are police officers, they cannot be deprived of their fundamental rights and as such are en tled to bail on parity. On this ground alone, this Court is gran ng bail to the pe oners subject to the compliance of the condi ons men oned in this order.
23. In the reply dated 3.2.2024 filed by the concerned DySP, it is explicitly men oned in paragraph 2(v) that no bribe amount has been recovered from any of the accused, and a total amount of Rs.12,00,000/- is to be recovered from the accused. It implies that nothing was recovered even from the lady Advocate, who was granted bail by the Sessions Court. The inves ga on be caried out to recover the money.
24. Further, in Gurbaksh Singh Sibbia v State of Punjab, 1980 (2) SCC 565, (Para 30), a Cons tu onal Bench of Supreme Court held that the bail decision must enter the cumula ve effect of the variety of circumstances jus fying the grant or refusal of bail. In Kalyan Chandra Sarkar v Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42, (Para 18) a three-member Bench of Supreme Court held that the persons accused of non-bailable offences are en tled to bail if the Court concerned concludes that the prosecu on has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its sa sfac on for the need to release such person on bail, in the given fact situa ons. The rejec on of bail does not preclude filing a subsequent applica on. The courts can release on bail, provided the circumstances then prevailing require, and a change in the fact situa on. In State of Rajasthan v Balchand, AIR 1977 SC 2447, (Para 2 & 3), Supreme Court no ceably illustrated that the basic rule might perhaps be tersely put as bail, not jail, except where there are circumstances sugges ve of fleeing from jus ce or thwar ng the course of jus ce or crea ng other troubles in the shape of repea ng offences or in mida ng witnesses and the like by the pe oner who seeks enlargement on bail from the Court. It is true that the gravity of the offence involved is likely to induce the pe oner to avoid the course of jus ce and must weigh when considering the ques on of jail. So also, the heinousness of the crime. In Gudikan Narasimhulu v Public Prosecutor, (1978) 1 SCC 240, (Para 16), Supreme Court held that the delicate light of the law favors release unless countered by the nega ve criteria necessita ng that course. In Prahlad Singh Bha v NCT, Delhi, (2001) 4 SCC 280, Supreme Court highlighted one of the factors for bail to be the public or the State's 9 9 of 19 ::: Downloaded on - 01-03-2024 05:01:51 ::: Neutral Citation No:=2024:PHHC:029174 CRM-M-2524-2024 immense interest and similar other considera ons. In Dataram Singh v State of UGar Pradesh, 2018:INSC:107 [Para 7], (2018) 3 SCC 22, (Para 6), Supreme Court held that the grant or refusal of bail is en rely within the discre on of the judge hearing the maGer and though that discre on is unfeGered, it must be exercised judiciously, compassionately, and in a humane manner. Also, condi ons for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
25. While deciding bail pe ons, the courts neither indict nor absolve the accused and just confine to the jus fica on for pre-trial incarcera on.
26. The possibility of the accused influencing the inves ga on, tampering with evidence, in mida ng witnesses, and the likelihood of fleeing jus ce, can be taken care of by imposing elabora ve and stringent condi ons. In Sushila Aggarwal v. State (NCT of Delhi) 2020:INSC:106 [Para 92], (2020) 5 SCC 1, Para 92, the Cons tu onal Bench held that unusually, subject to the evidence produced, the Courts can impose restric ve condi ons. 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 Sec on 438 of the Code, the Court is duty-bound to strike a balance between the individual's right to personal freedom and the right of inves ga on of the police. While exercising utmost restraint, the Court can impose condi ons countenancing its object as permissible under the law to ensure an uninterrupted and unhampered inves ga on.
27. Without commen ng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons men oned above, the pe oner makes a case for bail, subject to the following terms and condi ons, which shall be over and above and irrespec ve of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.
28. In Madhu Tanwar v. State of Punjab, 2023:PHHC:077618 [Para 10, 21], CRM-M- 27097-2023, decided on 29-05-2023, this court observed, [10] The exponen al growth in technology and ar ficial intelligence has transformed iden fica on techniques remarkably. Voice, gait, and facial recogni on are incredibly sophis cated and pervasive. Impersona on, as we know it tradi onally, has virtually become impossible. Thus, the remedy lies that whenever a judge or an officer believes that the accused might be a flight risk or has a history of fleeing from jus ce, then in such cases, appropriate condi ons can be inserted that all the expenditure that shall be incurred to trace them, shall be recovered from such person, and the State shall have a lien over their assets to make good the loss.
[21] In this era when the knowledge revolu on has just begun, to keep pace with exponen al and unimaginable changes the technology has brought to human lives, it is only fiRng that the dependence of the 10 10 of 19 ::: Downloaded on - 01-03-2024 05:01:51 ::: Neutral Citation No:=2024:PHHC:029174 CRM-M-2524-2024 accused on surety is minimized by giving alterna ve op ons. Furthermore, there should be no insistence to provide permanent addresses when people either do not have permanent abodes or intend to re-locate.
29. Given above, provided the pe oners are not required in any other case, in the event of arrest, the pe oners shall be released on bail in the FIR cap oned above, in the following terms:
(a). Pe oner(s) to furnish personal bond of Rs. Ten thousand (INR 10,000/) each; AND
(b) To give one surety of Rs. Twenty-five thousand (INR 25,000/-) each, to the sa sfac on of the concerned Inves gator/SHO OR the concerned Court, before whom the bonds are required to be furnished. When the bonds are to be furnished before a Judicial Magistrate, then in case of the non-availability of the concerned Judicial Magistrate, to any other nearest Ilaqa Magistrate/duty Magistrate. Before accep ng the surety, the concerned officer/court must sa sfy that if the accused fails to appear in court, then such surety can produce the accused before the court.
OR
(b). Pe oner(s) to hand over to the concerned inves gator/court a fixed deposit for Rs. Ten thousand only (INR 10,000/-), each, with the clause of automa c renewal of the principal and the interest rever ng to the linked account, made in favor of the 'Chief Judicial Magistrate' of the concerned district, or blocking the aforesaid amount in favour of the concerned 'Chief Judicial Magistrate'. Said fixed deposit or blocking funds can be from any of the banks where the stake of the State is more than 50% or from any of the well-established and stable private sector banks. In case the bankers are not willing to make a Fixed Deposit in such eventuality it shall be permissible for the pe oner to prepare an account payee demand draB favouring concerned Chief Judicial Magistrate for a similar amount.
(c). Such court shall have a lien over the funds un l the case's closure or discharged by subs tu on, or up to the expiry of the period men oned under S. 437-A CrPC, 1973, and at that stage, subject to the proceedings under S. 446 CrPC, the en re amount of fixed deposit, less taxes if any, shall be endorsed/returned to the depositor.
(d). The pe oners to also execute a bond for aGendance in the concerned court(s) as and when asked to do so. The presenta on of the 11 11 of 19 ::: Downloaded on - 01-03-2024 05:01:51 ::: Neutral Citation No:=2024:PHHC:029174 CRM-M-2524-2024 personal bond shall be deemed acceptance of the declara ons made in the bail pe on and all other s pula ons, terms, and condi ons of sec on 438(2) of the Code of Criminal Procedure, 1973, and of this bail order.
(e). While furnishing personal bond, the pe oners shall men on the following personal iden fica on details:
1. AADHAR number
2. Passport number, (If available), when the court aGes ng the bonds thinks appropriate or considers the accused as a flight risk.
3. Mobile number (If available)
4. E-Mail id (If available)
30. The pe oners shall join the inves ga on as and when called by the Inves ga ng Officer or any Superior Officer; and shall cooperate with the inves ga on at all further stages as required. In the event of failure to do so, it will be open for the prosecu on to seek cancella on of the bail. The pe oner(s) shall be in deemed custody for Sec on 27 of the Indian Evidence Act. Whenever the inves ga on occurs within the police premises, the pe oner(s) shall not be called before 8 AM, let off before 6 PM, and shall not be subjected to third-degree, indecent language, inhuman treatment, etc.
31. The pe oners 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 and the circumstances of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.
32. Pe oners to comply with their undertakings made in the bail pe on, made before this court through counsel as reflected at the beginning of this order. If the pe oner(s) fail to comply with any of such undertakings, then on this ground alone, the bail might be canceled, and the vic m/complainant may file any such applica on for the cancella on of bail, and the State shall file the said applica on.
33. The bail bonds shall remain in force throughout the trial and aBer that in Sec on 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condi ons.
34. The condi ons men oned above imposed by this Court are to endeavour that the accused does not repeat the offence and to provide the person from whom the money was exhorted, a sense of security. In Mohammed Zubair v. State of NCT of Delhi, 12 12 of 19 ::: Downloaded on - 01-03-2024 05:01:51 ::: Neutral Citation No:=2024:PHHC:029174 CRM-M-2524-2024 2022:INSC:735 [Para 28], Writ Pe on (Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A Three-Judge bench of Hon'ble Supreme Court holds that "The bail condi ons imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be propor onal to the purpose of imposing them. The courts while imposing bail condi ons must balance the liberty of the accused and the necessity of a fair trial. While doing so, condi ons that would result in the depriva on of rights and liber es must be eschewed."
35. This order does not, in any manner, limit or restrict the rights of the Police or the inves ga ng agency from further inves ga on as per law.
36. In case the Inves gator/Officer-In-Charge of the concerned Police Sta on arraigns another sec on of any penal offence in this FIR, and if the new sec on prescribes maximum sentence which is not greater than the sec ons men oned above, then this bail order shall be deemed to have also been passed for the newly added sec on(s). However, suppose the newly inserted sec ons prescribe a sentence exceeding the maximum sentence prescribed in the sec ons men oned above, then, in that case, the Inves gator/Officer-In-Charge shall give the pe oner no ce of a minimum of seven days providing an opportunity to avail the remedies available in law.
37. Any observa on made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments.
38. In return for the protec on from incarcera on, the Court believes that the pe oners shall also reciprocate through desirable behavior.
39. This en re case is a disturbingly startling depic on of what a mockery of the criminal jus ce system is being made of by certain individuals who are taking blatant bribes under the sacrosanct guise of the authority of law. How distressingly deplorable is the state of affairs when the Inves gators, who are the guardians of Law and Order, and the Advocates, who are the officers of Courts, not only allow but also par cipate in effec ng compromises, extor ng and accep ng bribes and commissions from the alleged accused and suspects, to seGle grave allega ons like that of rape. These illegal, unethical, and immoral ac ons deplete the faith and trust of the en re society and primarily of the real affected vic ms whose interests are the principal concern of a legal jus ce system.
40. We as a society fear crime as much as we fear criminals, and therefore, what can be more haun ng to any individual than the possibility of being labelled as a perpetrator of a heinous crime like sexual assault. False accusa ons of sexual assault can lead a sensible person to lose his wits under pressure and adopt ques onable methods to 13 13 of 19 ::: Downloaded on - 01-03-2024 05:01:51 ::: Neutral Citation No:=2024:PHHC:029174 CRM-M-2524-2024 escape the clutches of s gma and loss of honour associated with such allega ons. The burden of poten ally carrying a tainted reputa on for life may cause even a socially well- adjusted human to lose their personality and lose face in front of friends, family, and peers, pushing them towards depression and suicide, puRng them under undue financial and emo onal strain. Thus, knowingly levelling false allega ons of such kind can have devasta ngly far-reaching ill effects on one's sense of self, rela onships, social standing, and financial and psychological well-being. It is disheartening that our penal laws, which were put in place to protect and defend the survivors of sexual assaults are being used today as a weapon by certain evil-inten oned members of society to extort money from the public for illegal gains or for taking revenge, crea ng fear in the minds of the targeted people to cause injury to their honour, capitalizing and preying on their fear, vulnerability, and helplessness. This cannot be allowed to go on as it would unravel chaos in the system. It would amount to ridiculing a serious crime like sexual assault, turning it into something frivolous, which can never be the inten on of the makers of law.
41. It would be relevant to extract Sec on 182 of Indian Penal Code, 1860, which reads as follows:
182. False informa on, with intent to cause public servant to use his lawful power to the injury of another person.--Whoever gives to any public servant any informa on which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant--
(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respec ng which such informa on is given were known by him, or
(b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment of either descrip on for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Illustra ons
(a) A informs a Magistrate that Z, a police-officer, subordinate to such Magistrate, has been guilty of neglect of duty or misconduct, knowing such informa on to be false, and knowing it to be likely that the informa on will cause the Magistrate to dismiss Z. A has commiGed the offence defined in this sec on.
(b) A falsely informs a public servant that Z has contraband salt in a secret place, knowing such informa on to be false, and knowing that it is likely that the consequence of the informa on will be a search of Z's premises, aGended with annoyance to Z. A has commiGed the offence defined in this sec on.
(c) A falsely informs a policeman that he has been assaulted and robbed in the neighbourhood of a par cular village. He does not men on the name of any person as one of his assailants, but knows it to be likely that in consequence of this informa on the police will make enquiries and ins tute searches in the village to the annoyance of the villages or some of them. A has commiGed an offence under this sec on.
42. It would also be relevant to extract Sec on 195 of the Code of Criminal 14 14 of 19 ::: Downloaded on - 01-03-2024 05:01:51 ::: Neutral Citation No:=2024:PHHC:029174 CRM-M-2524-2024 Procedure, 1973, which reads as follows:
195. Prosecu on for contempt of lawful authority of public servants, for offences against public jus ce and for offences rela ng to documents given in evidence.--
(1) No Court shall take cognizance--
(a) (i) of any offence punishable under sec ons 172 to 188 (both inclusive) of the Indian Penal Code, (45 of 1860), or
(ii) of any abetment of, or aGempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in wri ng of the public servant concerned or of some other public servant to whom he is administra vely subordinate;
(b) (i) of any offence punishable under any of the following sec ons of the Indian Penal Code (45 of 1860), namely, sec ons 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been commiGed in, or in rela on to, any proceeding in any Court, or
(ii) of any offence described in sec on 463, or punishable under sec on 471, sec on 475 or sec on 476, of the said Code, when such offence is alleged to have been commiGed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or aGempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in wri ng of that Court or by such officer of the Court as that Court may authorise in wri ng in this behalf, or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant under clause
(a) of sub-sec on (1) any authority to which he is administra vely subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In clause (b) of sub-sec on (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal cons tuted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this sec on.
(4) For the purposes of clause (b) of sub-sec on (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the Principal Court having ordinary original civil jurisdic on within whose local jurisdic on such Civil Court is situate:
Provided that--
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdic on shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connec on with which the offence is alleged to have been commiGed.
43. In Daulat Ram v. State of Punjab, AIR 1962 SC 1206, a three-judge bench of Hon'ble Supreme Court, while dealing with an appeal against convic on under sec on 182 IPC, referred to the Sec on 195 of Code of Criminal Procedure, and observed, "What 15 15 of 19 ::: Downloaded on - 01-03-2024 05:01:51 ::: Neutral Citation No:=2024:PHHC:029174 CRM-M-2524-2024 the sec on Contemplates is that the complaint must be in wri ng by the public servant concerned..."
44. In Santosh Bakshi v. State of Punjab, (2014) 13 SCC 25, Hon'ble Supreme Court holds, [16]. To make out a case Under Sec on 182 Indian Penal Code, the following ingredients are to be proved:
(i) An informa on was given by a person to a public servant.
(ii) The informa on was given by a person who knows or believes such statement to be false.
(iii) Such informa on was given with an inten on to cause or knowing it to be likely to cause
(a) such public servant to do not to do anything if the true state of facts respec ng which such informa on is given were known by him, or
(b) to use the lawful power of such public servant to the injury or annoyance of any person.
45. It would also be relevant to extract Sec on 211 of Indian Penal Code, 1860, which reads as follows:
211. False charge of offence made with intent to injure.--Whoever, with intent to cause injury to any person, ins tutes or causes to be ins tuted any criminal proceeding against that person, or falsely charges any person with having commiGed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either descrip on for a term which may extend to two years, or with fine, or with both;
and if such criminal proceeding be ins tuted on a false charge of an offence punishable with death, imprisonment for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either descrip on for a term which may extend to seven years, and shall also be liable to fine.
46. In State of Punjab v. Brij Lal Palta, AIR 1969 SC 355, a three-judge bench of Hon'ble Supreme Court holds, [8] ...The Magistrate can take cognizance of an offence under Sec on 182 on a complaint in wri ng of the police officer by virtue of the provisions contained in Sec on 195 (1) (a) of the Cr. P. Code. But it would virtually lead to the circumven on of the provisions of Sec on 195 (1) (b) if the proceedings under Sec on 182 can con nue where the offence disclosed is covered by Sec on 211, Indian Penal Code and a complaint is pending which has been filed by the informant on the same facts and allega ons as were contained in his first informa on report.
47. In ABCD v. Union of India, (2020) 2 SCC 52, Hon'ble Supreme Court holds, [15]. Making a false statement on oath is an offence punishable Under Sec on 181 of the Indian Penal Code while furnishing false informa on with intent to cause public servant to use his lawful power to the injury of another person is punishable Under Sec on 182 of the Indian Penal Code. These offences by virtue of Sec on 195(1)(a)(i) of the Code can be taken cognizance of by any court only upon a proper complaint in wri ng as stated in said Sec on. In respect of maGers coming Under Sec on 195(1)
(b)(i) of the Code, in Pushpadevi M. Ja a v. M.L. Wadhawan etc. (1987) 3 16 16 of 19 ::: Downloaded on - 01-03-2024 05:01:51 ::: Neutral Citation No:=2024:PHHC:029174 CRM-M-2524-2024 SCC 367 prosecu on was directed to be launched aBer prima facie sa sfac on was recorded by this Court.
48. In Ram Dhan v. State of U.P., (2012) 5 SCC 536, Hon'ble Supreme Court holds, At least the provisions of Sec ons 177 and 182 deal with the cases totally outside the court. Therefore, the ques on of aGrac ng the provisions of Sec ons 195 and 340 CrPC does not arise. ... It is not necessary that the fabrica on of false evidence takes place only inside the court as it can also be fabricated outside the court though has been used in the court. Therefore, it may also not aGract the provisions of Sec on 195 CrPC. (See Sachida Nand Singh v. State of Bihar [(1998) 2 SCC 493].
49. In P.D. Lakhani v. State of Punjab, (2008) 5 SCC 150, Hon'ble Supreme Court holds, [11]. Sec on 182 of the Indian Penal Code, indisputably, provides for an offence falling under Chapter X of the Indian Penal Code. Sec on 195 provides for prosecu on for contempt of lawful authority of public servant, for offences against public servant and for offences rela ng to documents given in evidence. It contains an embargo sta ng that 'no court shall take cognizance of an offence punishable, inter alia, under the aforemen oned provision except on the complaint in wri ng by the public servant concerned or by some other public servant to whom he is administra vely subordinate'. 'Contempt of a public servant' has a definite connota on. Such contempt must be provided for by law. It must be found to be false.
[15]. ...Sec on 195 contains a bar on the Magistrate to take cognizance of any offence. When a complaint is not made by the appropriate public servant, the Court will have no jurisdic on in respect thereof. Any trial held pursuant thereto would be wholly without jurisdic on...
50. In Subhash Chandra v. State of U.P. and Ors., (2000)5 SCC 356, Hon'ble Supreme Court directs as follows, [7]. There are many ingredients set out in Sec on 182 I.P.C. Unless all the ingredients are established by evidence, the offence cannot be treated to have been commiGed. In order to ascertain whether the pe oner had commiGed any offence under Sec on 182 I.P.C., it is necessary to find out whether all the ingredients cons tu ng an offence under that Sec on have been proved or not. The pe oner had only filed a complaint under Sec on 156(3) Cr.P.C. before the court of Special Sessions Judge (DAA), Farrukhabad. It is s ll to be inves gated and found out by that court whether the complaint lodged before that court was false and had been made with the necessary inten on or knowledge to induce the court to exercise its lawful power so as to cause injury to respondents 3-6. Once those ingredients are established and the charge is found to have been proved, then alone the court can take cognizance of that offence and proceed in the manner directed by the High Court by the impugned judgment. But the stage at which such direc ons have been issued is, in our opinion, premature.
51. Despite levelling serious allega ons, the complainant/informant 'K' turned hos le and did not support the ini al version in the FIR, indica ng that the ini al implica on was probably honey trapping and sextor on.
1717 of 19 ::: Downloaded on - 01-03-2024 05:01:51 ::: Neutral Citation No:=2024:PHHC:029174 CRM-M-2524-2024
52. This case is not a sole isolated case when, aBer lodging serious allega ons of sexual assault, the statements by the alleged vic m of sexual assault are retracted. Considering the nature of the allega ons that came to this Court's no ce, it would be essen al and appropriate to issue the following direc ons to be conveyed to all the concerned police officers and inves gators.
53. To curb the menace of sextor on and false accusa ons on various counts, the Inves gator(s) /supervisory officer(s), in the cases involving sexual offences, when the complainant/vic m(s) resile from their ini al version(s), must make that report part of police proceedings. ABer that, they must immediately send the file to the concerned Superintendent of Police, who shall transfer the inves ga on to themselves, or to another inves ga ng officer duly monitored by an IPS Officer or DySP. Before filing a cancella on report, the Inves gator must verify whether any amount or any considera on, in shape of any valuables or in kind is paid to any official/officer or the complainant/vic m by or on behalf of the accused named in the FIR for compromise or for retrac ng the earlier statement(s). The supervising officer must inquire whether the complainant/ vic m had not received any financial benefits or was not threatened, in midated, or put under duress for such retrac on of the ini al accusa on. If, in the inquiry, the Inves gator is able to collect sufficient evidence that the vic m(s) or complainant was/were not under any threat, in mida on, or coercion, then the concerned public servant must consider ini a ng proceedings for viola on of Sec on 182 of the Indian Penal Code, 1860, as and when the stage comes, following the law, also ensuring that such a complaint does not get barred under limita on prescribed under sec on 468 of Code of Criminal Procedure, 1973. Suppose they do not proceed to prosecute or take a contrary stand; in such a situa on, the concerned Superintendent of Police must forward the reasons for not filing the complaint to the Director General of Police, who shall take a final decision, either themselves or by delega ng it to any officer of the IPS cadre. Non-compliance to be entered in their service records.
54. The Director General of Police, Haryana, is directed to issue general direc,ons in terms of this order by March 31, 2024, to all Superintendent of Police, all officers in charge of Police Sta,ons, and all Sta,on House Officers as and when they find viola,on of Sec,on 182 IPC.
55. Such direc ons aim to secure the interests and welfare of both the survivors of sexual assault so that they are not dominated and highhanded into making illegal compromises, as well as of an alleged accused person, whose truth is yet to be tested, and innocent people are not trapped by malicious allega ons of sexual assault.
1818 of 19 ::: Downloaded on - 01-03-2024 05:01:51 ::: Neutral Citation No:=2024:PHHC:029174 CRM-M-2524-2024
56. Pe,,on allowed in aforesaid terms. All pending applica ons, if any, stand disposed.
57. Registry to send a copy of this order to the following:
1. Director General of Police, Haryana, for compliance.
2. Director General of Police, Punjab for informa on and to consider issuing similar direc ons.
3. Director General of Police, Union Territory of Chandigarh, for informa on and to consider issuing similar direc ons.
A photocopy of this order be placed on the file of the other connected case.
(ANOOP CHITKARA)
JUDGE
February 29, 2024
AK/Jyo
Whether speaking/reasoned : Yes
Whether reportable : Yes
Neutral Citation No:=2024:PHHC:029174
19
19 of 19
::: Downloaded on - 01-03-2024 05:01:51 :::