Research › Search › Judgment

Himachal Pradesh High Court · body

2003 DIGILAW 180 (HP)

H. K. JUSTA v. STATE OF H. P.

2003-07-09

M.R.VERMA

body2003
JUDGMENT M.R. Verma, J.—Since both these petitions under Section 438 of the Code of Criminal Procedure (hereafter referred to as the Code) arise out of the same FIR No. 53/2003, dated 1.7.2003, under Sections 363, 366-A, 376, 342, 376/511, 506/34 IPC, registered at Police Station, Rajgarh, therefore, are being disposed of by this common order. 2. The case of the prosecution against the petitioners-accused H.K. Justa and Manoj Chauhan (hereafter referred to as A-l and A-2 respectively) is that two girls, cousin sisters by relation, (hereafter referred to as M and R), residents of village Bakhota, were studying in plus one in a school at Rajgarh. Date of birth of M is 29.4.1987 and that of R is 20.9.1986. On 28.6.2003, at 8 a.m., they left for their school but did not return home in the evening. Father of R thought that they might have gone to the house of some relative. The next day was Sunday. On 30.6.2003, one Sulakshna, a class mate of M and R informed the father of R, the informant in the case, that M and R had not attended the school on 30.6.2003. Their family members carried out a search for them and came to know that both of them were at the residence of A-l. Informant searched the girls at the address of A-l on 1.7.2003 but his residential premises were found locked. The matter was thereafter reported by the father of R to the police, where FIR initially under Sections 363 and 366-A IPC was recorded and the investigation in the matter followed. On investigation so far carried out, it was found that A-l had gone to the house of uncle of M, namely, Balbir Singh, and continued to visit his house for some time and had also been contacting his family members on telephone. A-l had told Balbir Singh that he had divorced his wife and wanted to marry a girl of younger age. This desire A-l had conveyed to M also telephonically and had been alluring her to marry him, and that he would give her ornaments and a vehicle to facilitate her studies. He further assured her that he would arrange employment for her and R. He invited them to come to Shimla. This desire A-l had conveyed to M also telephonically and had been alluring her to marry him, and that he would give her ornaments and a vehicle to facilitate her studies. He further assured her that he would arrange employment for her and R. He invited them to come to Shimla. On 28.6.2003, as per the instructions given by A-l, M and R, instead of going to the school, went to a place called Pabyana where A-l, A-2 and Prem Dutt Pandit, a co-accused in the case alongwith a Maruti Car No. HP-03-1006 were present. A-l inquired from the girls whether they had informed their family members about their programs and the girls replied in the negative. Thereafter, in the aforesaid car driven by A-2 they were brought to the residence of A-l at Sanjauli. On the night intervening 28th and 29th June, 2003, A-l committed rape on M. A-2 attempted to commit rape on R, but because of resistance by her, could not succeed in committing sexual intercourse with her. On the following morning, A-2 and Prem Dutt left the house of A-l. A-l, who had received information about the death of his father, told the girls that eatables were available in the house and they could prepare whatever they wanted to eat. He further asked them that in case there is any telephonic call, they would note only the number of the caller and not attend the call and if they attempted to do anything contrary, that would not be in their interest. Thereafter, A-l left to his home village after locking his residential premises thereby confining M and R in his residence. M, and R remained confined in the residential premises of A-l till 2.7.2003, when at about 11.30 a.m., A-l took them to Ridge, The Mall, Shimla. A-2 was also present there. A-l told M and R that if anyone made queries from them, they would tell that their parents did not provide them food and beat them and not to divulge to anyone that he had brought them to Shimla. A-l wanted to prepare affidavits of M and R about this version but when it transpired that each one of them was of 16 years of age, the person arranged for typing of the affidavits refused to prepare the affidavits. A-l wanted to prepare affidavits of M and R about this version but when it transpired that each one of them was of 16 years of age, the person arranged for typing of the affidavits refused to prepare the affidavits. A-l then took both the girls to Additional Superintendent of Police, Shimla and informed him that both the girls had run away from their houses because their parents did not provide them food and used to beat them. Saying that he had to carry the mortal remains of his father to Haridwar, A-l slipped away. Additional Superintendent of Police, believing the version of A-l entrusted the girls to LHC Veena. It transpired that case about the kidnapping of these girls was already registered at Police Station, Rajgarh. M and R were thereafter got medically examined in Ripon Hospital, Shimla. On medical examination of M, signs of sexual activities were seen on her person. However, no mark of injury or violence was noticed. In case of R, no evidence of sexual activity was found. In the meanwhile, A-l moved the present application in which ad interim anticipatory bail was granted to him vide order 4.7.2003, with direction to join investigation as and when required by the Investigating Officer. Armed with the order, A-l went to the concerned police station and he was associated in the investigation. As per the version of the investigating agency, he did not co-operate in the investigation on 5.7.2003 and refused even to get himself medically examined despite having been repeatedly asked by the police for such examination and complained of heart pain. He was permitted to go with direction to join investigation on 6.7.2003 at 9 a.m. However, A-l thereafter did not join investigation. A-2 is yet to join investigation. The car used in the commission of the offence is yet to be recovered and co-accused Prem Dutt is yet not traceable. Commission of more offences having been found, more penal provisions including 376 and 376/511 IPC have been added. 3. A-l, in his application, has averred that M and her parents were known to him, but not R. Both these girls came to his house in school dress alongwith their books and M told him that they had come to seek his help to procure some job and to continue their studies as private candidates. 3. A-l, in his application, has averred that M and her parents were known to him, but not R. Both these girls came to his house in school dress alongwith their books and M told him that they had come to seek his help to procure some job and to continue their studies as private candidates. A-l asked them whether they had come with the permission of their parents or not and the girls replied in the affirmative. However, he felt that their behaviour and dress were telling a different story. On his further questioning, the girls divulged that they had run away from home and further requested him to arrange some job for them as they were willing to do the job of even washing utensils etc. A-l then rang up to their home but could not contact their parents. He asked the girls to go back and assured that he would send a man with them and pay their travelling expenses but the girls refused. A-l then sent a man to the house of the parents of the girls so that they might come and take back the girls. In the meanwhile, father of A-l died and he had to go to his native village. Therefore, he advised the girls to stay in the house till their parents reached Shimla. He returned back to Shimla on 2.7.2003 and found that none had come to take the girls back to their parents house, therefore, he took them to the office of Superintendent of Police, Shimla and handed them over to Additional Superintendent of Police. On the basis of these averments in the application, A-l has claimed that the allegations against him are false, frivolous vexatious and he is innocent and is being falsely implicated in the case. 4. A-2, in his application, has averred that from the press reports, he has come to know that he is being involved in the commission of offences under Sections 363 and 366 IPC for helping A-l in kidnapping the girls and apprehends his arrest. It is claimed that accusations against him are false and he has not committed any offence as alleged in a section of the press. 5. I have heard the learned Counsel for A-l and A-2 and the learned Deputy Advocate General for the respondent-State and have also gone through the police report and the investigation records. 6. It is claimed that accusations against him are false and he has not committed any offence as alleged in a section of the press. 5. I have heard the learned Counsel for A-l and A-2 and the learned Deputy Advocate General for the respondent-State and have also gone through the police report and the investigation records. 6. It was contended by the learned Counsel for A-l that M and R are both more than 16 years of age and accompanied the accused voluntarily. In view of the medical opinions procured by the prosecution, R was found virgo intacta whereas M was found habitual of sexual intercourse. Therefore, even if it is assumed that these girls came to Shimla with A-l and A-l had sexual intercourse with M, no offence is made out against A-l, because it must be with consent, as no mark of violence was found on the person of M. It was further argued that M and R even, according to the prosecution, accompanied A-l from Rajgarh to Shimla, but on the way, they did not raise hue and cry, rather enjoyed the hospitality of A-l. Even during their stay in the house of A-l, which is situate in a densely populated area, the girls did not complain to anyone about the commission of any offence whatsoever by A-l against them or their persons. It was A-l who tried to make arrangements for sending the girls back to their parents house which they refused and finally he had to hand over them to the police, the only course open to him. In these circumstances, he cannot be said to have committed any offence and, therefore, deserves to be saved from the agony and harassment of arrest and custody. To substantiate his contention, the learned Counsel has relied on Bittu alias Anand Singh v. State of Himachal Pradesh, 1986 Sim. L.C. 113; S. Varadarajan v. State of Madras, AIR 1965 SC 942 and Gaurish v. State of Goa, 1997 Cri. L.J. 1018. 7. Learned Counsel for A-2 had contended that there is no allegation of any inducement, threat or persuation against A-2 to facilitate the alleged kidnapping of the girls. Further, there is no/allegation against him about the commission of rape on any of the girls. Further, he is not shown to have assisted A-l in manipulating any false evidence. L.J. 1018. 7. Learned Counsel for A-2 had contended that there is no allegation of any inducement, threat or persuation against A-2 to facilitate the alleged kidnapping of the girls. Further, there is no/allegation against him about the commission of rape on any of the girls. Further, he is not shown to have assisted A-l in manipulating any false evidence. The only allegation against him is that the girls and A-l and co-accused Prem Dutt travelled in his car from a place near Rajgarh to Shimla and that he attempted to molest the modesty of R. It has further been contended that A-2 aged about 30 years is a cousin of A-1, aged about 60 years. When A-l wanted the lift in his vehicle, there was no reason for him to deny the same. Thus, in the given circumstances of the case, there is no such allegation against A-2 which may be said to be a grave offence for which custodial interrogation may be required. A-2 is prepared and willing to join investigation as and when so required, therefore, keeping in view the facts and circumstances of the case, he deserves to be released on anticipatory bail. The learned Counsel has also relied on the ratio of the cases relied on for A-l. 8. On the other hand, the learned Deputy Advocate General has contended that A-l had made false averments in his petition and as is evident from the investigation record, he had indulged in attempting to fabricate evidence and facts favourable to him. He is politically, economically and statuswise an influential person and his indulgence in fabricating the facts clearly shows that he is a person who is quite capable of tampering with the prosecution evidence. Insofar as merits of the case are concerned, he allured M to come to Shimla, gave her all the relevant directions to facilitate her removal alongwith R to Shimla. In his residence at Shimla, he committed rape on M and kept the girls locked inside his house from 29.6.2003 to 2.7.2003 and then enacted a drama by producing the girls before the Additional Superintendent of Police, Shimla and himself bolted away. In his residence at Shimla, he committed rape on M and kept the girls locked inside his house from 29.6.2003 to 2.7.2003 and then enacted a drama by producing the girls before the Additional Superintendent of Police, Shimla and himself bolted away. After ad interim anticipatory bail was granted to him, he did not co-operate with the investigating agency, inasmuch as he refused to be subjected to medical examination though complaining of ailment and despite directions by the investigating officer failed to join investigation on 6.7.2003 at 9 am., despite the condition imposed by this Court in the order granting ad interim bail to him. Therefore, he has no case at all for grant of anticipatory bail as his intention to scuttle the investigation, fabricate evidence and tamper with the prosecution evidence is writ large in his conduct, as is clearly made out on the basis of the material on record. 9. Regarding A-2, it was contended that it is implicit in his bringing M and R alongwith A-l and co-accused Prem Dutt to Shimla in his car that he had common intention with A-l in the commission of the offences and he did attempt to commit rape on R though his attempt failed because of the resistance by R. Therefore, keeping in view the grave nature of the accusations, none of the accused is entitled for anticipatory bail as prayed for. To support his contention, the learned Deputy Advocate Genera1 relied on Gurbaksh Singh Sibia etc. v. State of Punjab, AIR 1980 SC 1632 and Pokar Ram v. State of Rajasthan, AIR 1985 SC 969. 10. It may be pointed out at the very outset that the ratio in the cases cited for A-l and also relied for A-2 came into being in the cases wherein the trial had concluded and final judgment had followed. Thus, these decisions containing the relied ratio were rendered when the records of the entire evidence led by the parties and explanation given by the accused persons were before the Court. In an anticipatory bail, such material is incapable of being brought before the Court and the court has to rely on whatever material is placed before it to come to a conclusion whether the case is fit for grant of anticipatory bail or not. In an anticipatory bail, such material is incapable of being brought before the Court and the court has to rely on whatever material is placed before it to come to a conclusion whether the case is fit for grant of anticipatory bail or not. However, the interpretation of the expressions used in Section 438 of the Code and Section 361 IPC as contained in the aforesaid ruling can be kept in view while considering the present bail applications. 11. In Gurbaksh Singh Sibias case, reliance was placed on the observations of the Apex Court that there is no risk involved in entrusting wide discretion to the Courts of Sessions and High Courts in granting anticipatory bail because they are higher courts manned by experienced persons and their orders are not final unless the discretion is exercised by such Courts judiciously and not according to whims, caprice or fancies. On the strength of these observations, the learned Deputy Advocate General has contended that the Apex Court had reposed a great faith on the Courts of Sessions and High Courts regarding proper consideration of grant or refusal of anticipatory bail. 12. In Pokar Rants case (supra), the Apex Court sounded a note of caution that anticipatory bail, to some extent, intrudes in the sphere of investigation of crime and the Court must be cautious and circumspect in exercising such power of a discretionary nature and that some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that too when the investigation is in progress. 13. The precise contention of the learned Deputy Advocate General, on the basis of these observations of the Honble Supreme Court is that in serious offences, the discretion has to be exercised by the Courts with great care and caution. 14. This Court had the occasion to examine the purpose and scope of Section 438 of the Code in Surinder Kumar Sikand v. State of H.P., 2000 (2) Shim. L.C. 12, wherein it was held as under: "10. 14. This Court had the occasion to examine the purpose and scope of Section 438 of the Code in Surinder Kumar Sikand v. State of H.P., 2000 (2) Shim. L.C. 12, wherein it was held as under: "10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dishonour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operate during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumars case (supra) relied upon for the petitioner, it was held by the Honble Supreme Court as follows: "No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock up of a person can cause incalculable harm to the reputation and self esteem of a person. No arrest can be made in routine manner o a mere allegation of commission of an offence made against a person. Arrest and detention in police lock up of a person can cause incalculable harm to the reputation and self esteem of a person. No arrest can be made in routine manner o a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the personals complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do." Thus, a police officer cannot be permitted to arrest a person simply because has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest. 11. However, in the same case it was further held as under : "8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two? 9. A realistic approach should be made in this direction. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two? 9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties, and privileges, on the one hand, and individual duties, obligations and responsibilities, on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society; the law violator or the law abider of meeting the challenge which Mr. Justice Cardoze so forthrightly met when he wrestled with a similar task of balancing individual rights against societys rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore Justice Cardoze, observed : The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The Rule of the Adams case (People v. Adams) strikes a balance between opposing interests. We must hold it to be the law until those organs of Government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass. 10. To the same effect is the statement by Judge learned Hand, in Fried Re : The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten. Perfection is impossible; like other human institutions, criminal proceedings must be a compromise. Perfection is impossible; like other human institutions, criminal proceedings must be a compromise. The quality of a nations civilisation can be largely measured by the methods it uses in the enforcement of criminal law." Relying on State v. Anil Sharma, (1997) 7 SCC 187 and K.K. Jerath v. Union Territory, Chandigarh and others, (1998) 4 SCC 80/ this Court further held: "In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice system, the bail should be refused". 15. It is in view of the above settled position in law that the applications in hand have to be considered. 16. A perusal of the records, particularly the statement of M, shows that A-l had allured her to leave her parents house by assuring to provide her ornaments and facilities like car enabling her to attend to her school and to marry him. As per statement of M, A-l had committed sexual intercourse with her forcibly, without her consent and against her will. At this stage, there is no reason to disbelieve the statement of M, one of the prosecutrix in the case. It is common version of M and R that they were kept locked inside the residence of A-l at Sanjauli with certain directions and threat which prima facie restrained them from moving out of the house and narrating their part of the version to anyone. Thus, the material on record reveals involvement of A-l in the commission of offences alleged to have been committed by him which are evidently of grave nature and for which law provides severe punishment. In the facts and circumstances of the case, his interrogation in the case is absolutely necessary. 17. Thus, the material on record reveals involvement of A-l in the commission of offences alleged to have been committed by him which are evidently of grave nature and for which law provides severe punishment. In the facts and circumstances of the case, his interrogation in the case is absolutely necessary. 17. It is clearly borne by the record that A-l went to the police station with the copy of ad interim bail order granted by this Court and the police ziminies reveal that his attitude has not been co-operative and he refused even to get himself medically examined which is one of the most essential requirements even to ensure that he is not physically tortured by the investigating agency during the course of his interrogation. It is also evident from the records that he was required by the investigating officer to join investigation on 6.7.2003, but he failed to do so. No explanation is forthcoming for such failure on his part. This act, on his part, is in violation and defiance of the order passed by this Court directing him to join investigation as and when so required by the police. This defiant attitude of A-l stalling the investigation and defying the orders of this Court, by itself, is a reason to deny anticipatory bail to him. In view of this conduct, particularly the twist given by him to the facts read with the facts and circumstances of the case prima facie disclosing the commission of the offences by him, grant of anticipatory bail to him will mean denial of an opportunity to the investigating agency to interrogate him, as he himself has failed to co-operate in and report for interrogation, thereby stalling the entire process of investigation. The cases cited to support the contention raised for A-l are thus of no help to him. 18. Insofar as A-2 is concerned, from the police report as also from the material so far collected by the investigating agency, it is shown that the M and R were removed to Shimla in the car owned and also driven by him at the relevant time. There is no material, at this stage, to show that he had, in any manner, facilitated the arrival of the girls at the place from where they boarded the car. There is no material, at this stage, to show that he had, in any manner, facilitated the arrival of the girls at the place from where they boarded the car. On the way throughout or at the residence of A-l, he is not alleged to have given any assurance whatsoever to M and R. He is not shown to be directly involved in attempting to fabricate evidence. The imputation against him is that he attempted to commit rape with R in which he did not succeed. On medical examination, R has been found virgo intacta and having not indulged in sex. Therefore, the roles attributed to each of the accused are not at par and A-2 is yet to be interrogated by the police to disclose his version about the allegations against him. Therefore, in his case, I am of the view that, at this stage, he should be directed to join investigation and the decision on his application for grant of anticipatory bail should be deferred till receipt of the report regarding further progress in the investigation about the part played by him in the commission of the alleged offences. 19. In view of the above discussion and conclusions, Cr.M.P. (M) No. 767 of 2003 filed by A-l merits dismissal and is accordingly dismissed. Final orders on Cr.M.P. (M) 787 of 2003 is deferred and A-2 is directed to join investigation by reporting at police station, Rajgarh, on 10.7.2003 at 2 p.m. and to continue to associate himself with the investigation of the case as and when so required by the investigating officer. Further report about the progress in the investigation qua the case against A-2 to be submitted by the police on 15.7.2003. In the meanwhile, if he is arrested by the investigating agency, he will be released on his furnishing a personal bond in the sum of Rs. 20,000 with one surety in the like amount to the satisfaction of the investigating officer or the officer incharge of the concerned police station. The ad interim bail, however, is subject to the conditions that A-2 will regularly and punctually, as may be required by the investigating officer, report for investigation and the liberty, hereby granted to him, shall not be misused for tampering with the prosecution evidence or stalling the investigation in any manner. Copy dasti.