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2014 DIGILAW 624 (HP)

Swaran Singh v. State of Himachal Pradesh

2014-05-22

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, J. (Oral). Petitioner is an accused in FIR No.65 of 2014, registered under Sections 376, 506 of the Indian Penal Code, in Police Station, Gagret, District Una. He apprehends his arrest in connection with the case so registered against him. 2. The status report placed on record by learned Additional Advocate General and record produced by the Investigating Officer reveal that the case against the accused-petitioner has been registered at the instance of the prosecutrix (name withheld), with the allegations that her husband is engaged in the business of timber in Gagret area and her son is also assisting him in the said business. The accused, who happens to be the Deputy Ranger in the Forest Department, allegedly started coming to their house sometime four years ago and under threat of implicating her husband and son in some case, developed physical relations with her. She objected to it on various occasions, but of no avail as he was putting her under constant threat and fear, continued exploiting her sexually. Now, the accused-petitioner started torturing her otherwise also as he allegedly opened fire at her son and on his instance police has even registered a criminal case also against her son. It is on the complaint with such allegations the complainant filed in the Court of learned Additional Chief Judicial Magistrate, Amb, District Una, the case came to be registered against the accused-petitioner. 3. It is seen from the record that on the report lodged by the accused-petitioner with the allegations that being a public servant when he was on duty on 31.8.2013, the son of the complainant tried to overrun him by a vehicle and thereby not only endangered his life but also prevented him from discharging his duties in the capacity of such public servant, a case under Sections 53, 336 of the Indian Penal Code has been registered vide FIR No.123 of 2013 in Police Station, Gagret against her son. It is after registration of this case, the prosecutrix firstly made a complaint against the accused-petitioner to his Department. She made a complaint to Deputy Commissioner, Una also. In these complaints, she levelled allegations qua demand of illegal gratification/bribe etc. against the accused-petitioner and also highlighted various acts of misconduct attributed to him. In these complaints, she, however, has not levelled any allegations of her sexual harassment against him. She made a complaint to Deputy Commissioner, Una also. In these complaints, she levelled allegations qua demand of illegal gratification/bribe etc. against the accused-petitioner and also highlighted various acts of misconduct attributed to him. In these complaints, she, however, has not levelled any allegations of her sexual harassment against him. The allegations in the complaints so made to the Forest Department and Deputy Commissioner, Una, were gone into by Divisional Forest Officer, Una and as per his report, the allegations were not found correct. 4. The prosecutrix for the first time levelled the allegations of her physical harassment by the accused-petitioner in a complaint made to Women Cell in January, 2014. However, when the Women Cell called upon her to assist the Cell in getting the inquiry conducted into the allegations in that complaint, she seems to have refused to do so on the pretext that she is mentally disturbed, hence the proceedings in the said complaint, instead of making statement as required, sought to be kept pending. However, on the report of S.H.O., Police Station, Gagret, the Superintendent of Police, Una has ordered to file the complaint. It is thereafter an application under Section 156(3) of the Code of Criminal Procedure came to be filed by her in the Court of learned Additional Chief Judicial Magistrate, Amb, District Una and on the basis of the order passed in the application, this case has been registered against the accused-petitioner. 5. The investigation in the case is in progress. There is no complaint that the accused-petitioner was not available for the purpose of interrogation as and when called upon to do so. He being resident of District Kangra and working as Deputy Ranger in the Department of Forest, can reasonably be believed to have roots in the society. Therefore, there is no possibility of his jumping over the bail or fleeing away from justice. 6. Without lamenting much on the merits of the case, careful scrutiny of the record clearly demonstrates that the prosecutrix remained silent over the matter for a long period of four years and levelled the allegations of her sexual harassment somewhere in the year 2010 by the accused-petitioner, for the first time in the complaint she made to Women Cell of Una Police in the month of January, 2014. She even failed to associate with the inquiry initiated by Women Cell of the police in the complaint she made against the accused-petitioner. On the other hand, she started making the complaints against the accused-petitioner after registration of the case against her son at his instance on 31.8.2013. 7. The present, therefore, is not a case where the accused-petitioner, at this stage, should be confined to custody, when his custodial interrogation in the case is not required. Other aspect is that the liberty of a citizen has to be got balanced with the interest of the society at large. The Apex Court in Rajoo and others v. State of M.P., 2009 AIR (SC) 858, has held that the allegations of rape cannot be universally and mechanically applied to the facts of every case of sexual assault, which comes before the Court and while emphasizing that rape causes the greatest distress and humiliation to the victim, at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. As has further been held in this judgment, the accused must also be protected against the possibility of false implication. It is in this backdrop, learned Counsel seeks liberal view of the matter so that the personal liberty of the accused-petitioner is not curtailed. 8. It has been argued on behalf of the respondent-State that the anticipatory bail to the accused-petitioner be granted for a limited duration only leaving it open to the trial Court to deal with the matter on an appreciation of evidence placed before it after investigation is complete or charge-sheet is submitted. Reliance in this behalf has been placed on the judgment of the Apex Court in Salauddin Abdulsamad Shaikh v. State of Maharashtra, AIR 1996 SC 1042 . With due respect to the law laid down in the judgment supra, this Court is of the considered view that it is not in line with the decision rendered by the Apex Court in Siddharam Satingappa Mhetre v. State of Maharashtra and others, (2011) 1 SCC 694 , wherein the Salauddin Abdulsamad Shaikh’s case has been held to be a decision rendered in per incuriam, on account of having escaped the notice of the judgment of Constitution Bench of the Apex Court in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 . It has further been held that the issue in Salauddin Abdulsamad Shaikh’s case is contrary to the legislative intent and the very spirit of provision of anticipatory bail itself and has resulted in an artificial and unreasonable restriction on the scope of enactment contrary to the legislative intention. Also that as per this judgment, the accused is required first to surrender before the trial Court and only thereafter he can make a prayer for grant of bail by the trial Court. The trial Court would release the accused only after he has surrendered. 9. In Siddharam Satingappa Mhetre’s case supra after taking note of the factors and parameters laid down regarding the ambit, scope and object of the concept of the anticipatory bail enumerated under Section 438 of the Code of Criminal Procedure in Gurbaksh Singh Sibbia’s case supra, has held as follows: “122. In our considered view, the Constitution Bench in Sibbia’s case (supra) has comprehensively dealt with almost all aspects of the concept of anticipatory bail under section 438 Cr.P.C. A number of judgments have been referred to by the learned counsel for the parties consisting of Benches of smaller strength where the courts have observed that the anticipatory bail should be of limited duration only and ordinarily on expiry of that duration or standard duration, the court granting the anticipatory bail should leave it to the regular court to deal with the matter. This view is clearly contrary to the view taken by the Constitution Bench in Sibbia’s case (supra). In the preceding paragraphs, it is clearly spelt out that no limitation has been envisaged by the Legislature under section 438 Cr.P.C. The Constitution Bench has aptly observed that “we see no valid reason for rewriting section 438 with a view, not to expanding the scope and ambit of the discretion conferred on the High Court or the Court of Session but, for the purpose of limiting it. 123. In view of the clear declaration of law laid down by the Constitution Bench in Sibbia’s case (supra), it would not be proper to limit the life of anticipatory bail. When the court observed that the anticipatory bail is for limited duration and thereafter the accused should apply to the regular court for bail, that means the life of section 438 Cr.P.C. would come to an end after that limited duration. When the court observed that the anticipatory bail is for limited duration and thereafter the accused should apply to the regular court for bail, that means the life of section 438 Cr.P.C. would come to an end after that limited duration. This limitation has not been envisaged by the legislature. The Constitution Bench in Sibbia’s case (supra) clearly observed that it is not necessary to re-write section 438 Cr.P.C. Therefore, in view of the clear declaration of the law by the Constitution Bench, the life of the order under section 438 Cr.P.C. granting bail cannot be curtailed. 124. The ratio of the judgment of the Constitution Bench in Sibbia’s case (supra) perhaps was not brought to the notice of their Lordships who had decided the cases of Salauddin Abdulsamad Shaikh v. State of Maharashtra, K. L. Verma v. State and Another, Adri Dharan Das v. State of West Bengal and Sunita Devi v. State of Bihar. 125 In Naresh Kumar Yadav v. Ravindra Kumar (2008) 1 SCC 632 , a two-Judge Bench of this Court observed: (SCC p.632d) “the power exercisable under section 438 Cr.P.C. is somewhat extraordinary in character and it [should be exercised] only in exceptional cases.” This approach is contrary to the legislative intention and the Constitution Bench’s decision in Sibbia’s case. 126. We deem it appropriate to reiterate and assert that discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under section 438 Cr.P.C. should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject to the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations. 127. The judgments and orders mentioned in paras 124 and 125 are clearly contrary to the law declared by the Constitution Bench of this Court in Sibbia’s case. These judgments and orders are also contrary to the legislative intention. The Court would not be justified in re-writing Section 438 Cr.P.C.” 10. Then the Apex Court has discussed the issue of per incuriam in the light of the precedents cited in later part of the judgment and after discussing the law laid down in these precedents has held as follows: “138. The Court would not be justified in re-writing Section 438 Cr.P.C.” 10. Then the Apex Court has discussed the issue of per incuriam in the light of the precedents cited in later part of the judgment and after discussing the law laid down in these precedents has held as follows: “138. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a coequal strength is also binding on a Bench of judges of co-equal strength. In the instant case, judgments mentioned in paragraphs 135 and 136 are by two or three judges of this court. These judgments have clearly ignored a Constitution Bench judgment of this court in Sibbia’s case (supra) which has comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 of Cr.P.C. Consequently, judgments mentioned in paragraphs 124 and 125 of this judgment are per incuriam. 139. In case there is no judgment of a Constitution Bench or larger Bench of binding nature and if the Court doubts the correctness of the judgments by two or three judges, then the proper course would be to request Hon’ble the Chief Justice to refer the matter to a larger Bench of appropriate strength. 140. In the instant case there is a direct judgment of the Constitution Bench of this court in Sibbia’s case (supra) dealing with exactly the same issue regarding ambit, scope and object of the concept of anticipatory bail enumerated under Section 438 Cr.P.C. The controversy is no longer res integra. We are clearly bound to follow the said judgment of the Constitution Bench. The judicial discipline obliges us to follow the said judgment in letter and spirit.” 11. Since the judgment of Constitution Bench in Sibbia’s case has not been brought to the notice of the Bench which has decided Salauddin Abdulsamad Shaikh’s case supra, it has been held that the judgment in that case is per incuriam, hence cannot be treated to be a binding precedent. Since the judgment of Constitution Bench in Sibbia’s case has not been brought to the notice of the Bench which has decided Salauddin Abdulsamad Shaikh’s case supra, it has been held that the judgment in that case is per incuriam, hence cannot be treated to be a binding precedent. The Bench which has decided Siddharam Satingappa Mhetre’s case supra, therefore, did not deem it necessary to refer the matter for being considered by a larger Bench while arriving at a conclusion that in view of judgment of Constitution Bench in Sibbia’s case dealing with the issue regarding ambit, scope and object of the concept of anticipatory bail under Section 438 of the Code of Criminal Procedure, the same being binding in nature, has to be followed in letter and spirit. 12. With the above observations, this application is allowed. It is ordered that in the event of arrest of the accused-petitioner in connection with the case registered against him vide FIR No.65 of 2014 in Police Station, Gagret, District Una, he shall be released on bail subject to his furnishing personal bond in the sum of Rs.50,000/- with one surety in the like amount to the satisfaction of the Investigating Officer/Arresting Police Officer and shall abide by further conditions that: He shall: (a) make himself available for the purpose of interrogation as and when required and shall cooperate with the Investigating Officer to conduct the investigation in a manner so as to take it to its logical end; (b) not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; (c) not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or Police Officer; and (d) not leave the territory of India without the prior permission of the Court. 13. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 14. The observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this petition alone. The petition stands accordingly disposed of.