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2013 DIGILAW 389 (UTT)

Hari Gupta v. State of Uttarakhand

2013-06-26

ALOK SINGH

body2013
Judgment Alok Singh, J. Present petition is filed assailing the FIR dated 19.06.2013 registered as case crime no. 191 of 2013 under Section 376, 504, 506, 120-B IPC and under Section 3(xii) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, police station Kotwali Dehradun, District Dehradun. 2. As per the contents of the FIR, prosecutrix/respondent no. 3 belongs to Scheduled Tribe; Shobhit Gupta, son of petitioner no. 1, took the prosecutrix in the room, situated on the first floor of his shop about two months before the registration of the FIR and committed rape upon her; when the prosecutrix started weeping, she was assured by Shobhit that nothing to be worried about and he would marry with her, thereafter, on several occasions, Shobhit took the prosecutrix in his room and made sexual relations with her, on the pretext that he would marry with her; petitioners were having full knowledge about the commission of rape and physical relations being made by Shobhit with the prosecutrix; not only this, petitioner no. 1 (father of Shobhit) and petitioner no. 2 (elder uncle of Shobhit), instigated him to commit rape on her; on the date of registration of the FIR, Shobhit again pressurized the prosecutrix to have sexual intercourse with him whereupon prosecutrix told Shobhit that first of all, they should marry and then she would permit him to have sexual relation with her; on this, Shobhit told the prosecutrix that neither he nor anybody else would marry with her, since she was Scheduled Tribe; thereafter, prosecutrix went to the shop of father of Shobhit (petitioner no. 1) to complain, he also supported Shobhit and asked the prosecutrix to leave his shop immediately, meanwhile, petitioner no. 2 came and he also extended threats to her and told her that if she would not leave the shop, she would be killed. 3. The only allegation against the present petitioners is that both of them were having knowledge regarding sexual relations between Shobhit and prosecutrix and when prosecutrix made complaint to the petitioners, they threatened her to leave their shop, otherwise, she would be killed. The contents of the FIR that petitioners instigated Shobhit to have sexual intercourse with the prosecutrix, on the face of it, considering the Indian Society, seems to be totally concocted and incorrect. 4. The contents of the FIR that petitioners instigated Shobhit to have sexual intercourse with the prosecutrix, on the face of it, considering the Indian Society, seems to be totally concocted and incorrect. 4. Prima facie, involvement of petitioners in the present case, seems to be highly doubtful, however, considering the gravity of the offences, this is not a fit case where FIR should be quashed, at this stage. 5. Mr. Niranjan Bhatt, learned counsel for the petitioner, countered with the situation, submits that petitioners shall cooperate with the Investigating Officer and shall appear before the Chief Judicial Magistrate, Dehradun on or before 19.07.2013, however, they may not be sent to judicial custody simply because FIR is registered against them. With this submission, learned counsel for the petitioners seeks permission to withdraw this petition. 6. Hon’ble Apex Court in the case of Joginder Kumar Vs. State of U.P. reported in 1994 (4) SCC 260 has observed as under: “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 a routine manner on 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 person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter.” 7. Seven Judges Full Bench of Hon’ble Allahabad High Court in the case of Amravati Vs. State of U.P. reported in 2005 Cr.L.J. 755 has held as under: “32. In our country unfortunately whenever an FIR of a cognizable offence is lodged the police immediately goes to arrest the accused. Denying a person of his liberty is a serious matter.” 7. Seven Judges Full Bench of Hon’ble Allahabad High Court in the case of Amravati Vs. State of U.P. reported in 2005 Cr.L.J. 755 has held as under: “32. In our country unfortunately whenever an FIR of a cognizable offence is lodged the police immediately goes to arrest the accused. This practice in our opinion is illegal as it is against the decision of the Supreme Court in Joginder Kumar's case, and it is also in violation of Article 21 of the Constitution as well as Section 157(1), CrPC gives a police officer discretion to arrest or not, but this discretion cannot be exercised arbitrarily, and it must be exercised in accordance with the principles laid down in Joginder Kumar's case (supra). 33. It may be mentioned that the provision for anticipatory bail has been deleted by an amendment in U.P. It is well known that in U.P. criminal trials often take five years or sometimes even more to complete, and hence the question arises is that if an accused is found innocent after this long interval who will restore these five years or so of life to him if he is not granted bail? 34. It may be mentioned that a person's reputation and esteem in society is a valuable asset, just as in civil law it is an established principle that goodwill of a firm is an intangible asset. In practice, if a person applies for bail he has to surrender in Court, and normally the bail application is put up for hearing after a few days and in the meantime he has to go to jail. Even if he is subsequently granted bail or is acquitted, his reputation is irreparably tarnished in society. Often false and frivolous FIRs arc filed yet the innocent person has to go to jail, and this greatly damages his reputation in society. 35. We may now consider the provisions of Section 439, CrPC (as quoted above) which deal with the bail application before the High Court and Court of Sessions. 37. What is important to note is that the proviso to Section 439(1) does not prescribe the period of the notice and leaves it to the discretion of the Judge. 35. We may now consider the provisions of Section 439, CrPC (as quoted above) which deal with the bail application before the High Court and Court of Sessions. 37. What is important to note is that the proviso to Section 439(1) does not prescribe the period of the notice and leaves it to the discretion of the Judge. This may be contrasted to Section 407(5), CrPC which reads as follows : "Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least twenty four hours have elapsed between the giving of such notice and the hearing of the application." 38. The fact that in the same statute in one provision the period of the notice has been prescribed, while in another provision it has not indicates that Parliament in its wisdom has left it to the discretion of the Court where such period has not been prescribed to regulate its proceedings and determine in its own discretion what reasonable period should there be between giving of the notice and hearing of the bail application under Section 439. 39. In Ramesh Chandra Kapil v. High Court of Judicature at Allahabad 1984 UPCR 159, the Court referred to the Latin Maxim 'CURSUS CURLAF LEX CURAE' which means "every Court is the guardian of its own records and of its practice". 40. There may be cases, for instance, where a totally false and frivolous FIR has been filed against a judicial or administrative officer or a reputed citizen merely because of enmity or to damage his reputation or to black-mail him. If the hearing of the bail application is adjourned even for a few days he will have to remain in jail and his reputation may be irreparably tarnished, even if subsequently he is granted bail. In our opinion the learned Judge hearing the bail application, in his discretion, may in such a case give a very short time for the hearing after notice is given to the Public Prosecutor, and he may, in his discretion hear the bail application under Section 439 on the same day when it is filed. In our opinion the learned Judge hearing the bail application, in his discretion, may in such a case give a very short time for the hearing after notice is given to the Public Prosecutor, and he may, in his discretion hear the bail application under Section 439 on the same day when it is filed. After all, giving notice merely means giving copy of the bail application to the Public Prosecutor so that he may have an opportunity to be heard in reply and place the material facts before the Court. There may be cases where the learned Judge hearing the bail application under Section 439 may, if he chooses, give a very short time to the Public Prosecutor after the bail application is filed and notice is given, and do the hearing the same day only after a short time of giving of the notice. The learned Judge can always get the record from the Court of the learned Magistrate where the entire papers are already available. Also, sometimes it may not be practicable to give notice at all and for this purpose the hearing can be done after recording reasons for waiving the notice, as mentioned in the proviso of Section 439(1). On the other hand, there may be cases where the learned Judge may feel that in view of the seriousness of the offence or other facts a longer time should be given to the Public Prosecutor before hearing the bail application. In all such cases in our opinion the matter should be left to the discretion of the learned Judge hearing the bail application and a direction for deciding the bail on the same day should not ordinarily be given by this Court as that would be interfering in his discretion.” 8. Hon’ble Apex Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. reported in 2009 (4) SCC 437 was pleased to approve the judgment of Full Bench of Seven Judges of Allahabad High Court in the case of Amravati (supra). 9. Hon’ble Apex Court in the case of Mukesh Kishanpuria Vs. State of West Bengal reported in 2010 (15) SCC 154 in paragraph 3 has held as under: “However, the petitioner may apply for regular bail before the Court concerned and along with the said application, he may file an application for interim bail pending disposal of the regular bail application. Hon’ble Apex Court in the case of Mukesh Kishanpuria Vs. State of West Bengal reported in 2010 (15) SCC 154 in paragraph 3 has held as under: “However, the petitioner may apply for regular bail before the Court concerned and along with the said application, he may file an application for interim bail pending disposal of the regular bail application. We have made it clear on a number of occasions that the power to grant regular bail includes the power to grant interim bail pending final disposal of the regular bail application. This power is inherent in the power to grant bail, particularly in view of Article 21 of the Constitution of India. We are of the opinion that in view of Article 21 of the Constitution, a person should not be compelled to go to jail if he can establish prima facie that in the facts of the case he is innocent.” 10. Hon’ble Apex Court in the case of State of Kerala Vs. Raneef reported in 2011 (1) SCC 784 has held as under: “15. In deciding bail applications an important factor which should certainly be taken into consideration by the Court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail.” 11. Having perused the dictums of Hon’ble Apex Court as well as Full Bench of Allahabad High Court, it can safely be held that arrest of the person, named in the FIR, should not be automatic and arrest should only be effected, if custodial interrogation is required or there is apprehension that accused may abscond or may temper with the evidence or offences are so grave and amount to crime against society. In appropriate cases accused can be enlarged on interim bail till the decision is taken on the regular bail and while deciding the question of bail, court must keep in mind that if bail is declined and ultimately, accused is acquitted, then time spent by the accused cannot be restored to him. 12. Coming to the facts of the present case, as observed hereinbefore, allegation against both the petitioners, on the face of it, seems to be highly improbable and cannot be accepted as gospel truth. 13. Petition is dismissed as withdrawn, as prayed by Mr. Niranjan Bhatt, Advocate. 14. However, petitioners shall appear/surrender before the Chief Judicial Magistrate, Dehradun on or before 19.07.2013, as stated by learned counsel for the petitioners. Petitioners may move appropriate bail application before the Sessions Judge, Dehradun seeking regular bail within three days after their surrender before the Chief Judicial Magistrate, Dehradun. Learned Chief Judicial Magistrate shall enlarge the petitioners on interim bail on furnishing their respective personal bonds to the satisfaction of Chief Judicial Magistrate, Dehradun for the period till final decision is taken by learned Sessions Judge, Dehradun on their bail application. Learned Sessions Judge shall decide the bail application sympathetically. 15. CLMA No. 6327 of 2013 stands disposed of. 16. Let a copy of this order be forwarded to the Chief Judicial Magistrate, Dehradun as well as to all the Judicial Officers of the State immediately.