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Chhattisgarh High Court · body

2015 DIGILAW 7 (CHH)

Shrinivas Rao Naidu v. State Of Chhattisgarh

2015-01-06

SANJAY K.AGRAWAL

body2015
ORDER Sanjay K. Agrawal, J. 1. The applicant has preferred this bail application under Section 438 of the Cr.P.C. apprehending his arrest in connection with Crime No. 289/2014, registered in Police Station Chakarbhata, District Bilaspur, Chhattisgarh, for commission of offence punishable under Section 354-A r/w Section 34 of the IPC. 2. The case of the prosecution, in brief, is that the present applicant alongwith co-accused Arunendra Kumar Sharma outraged the modesty of the complainant and sexually harassed her, and thereby committed the aforesaid offence. 3. Shri Awadh Tripathi, learned counsel appearing for the applicant would submit that present applicant has not committed any offence and he has falsely been implicated in the case as the place of incident is said to be the office of Additional Registrar (Judicial) which, usually on the working day is very much crowded by presence of lawyers and their clerks and as such the prosecution story appears to be improbable and fabricated. He would further submit that complainant is said to be sexually harassed by the applicant from the month of September, 2013, to 12.09.2014 including on 02.08.2014 by physically touching her body, but the First Information Report has been lodged only on 26.09.2014 after unexplained and inordinate delay which creates grave doubt on truthfulness of prosecution version. Shri Tripathi would further submit that even after 02.08.2014, the complainant continuously and regularly worked in the office and did not make any complaint to any of the higher authorities which goes to show that applicant has falsely been implicated in the case, and also submit that he is holding the responsible post of Section Officer and the case of prosecution is not supported by any medical evidence and if he is granted anticipatory bail, he is not likely to flee from justice, and he has no criminal antecedents and therefore, he is entitled for anticipatory bail. 4. Per contra, Shri Lav Sharma, learned counsel appearing for the State would submit that sufficient incriminating evidence is available on record to hold that applicant has sexually harassed the complainant and outraged her modesty and as such, the applicant is not entitled to be released on anticipatory bail. 5. 4. Per contra, Shri Lav Sharma, learned counsel appearing for the State would submit that sufficient incriminating evidence is available on record to hold that applicant has sexually harassed the complainant and outraged her modesty and as such, the applicant is not entitled to be released on anticipatory bail. 5. Shri Anand Verma, learned counsel appearing for the objector would submit that the applicant, by taking advantage of his position, sexually harassed the complainant continuously and on 02.08.2014 not only pressed the complainant's entire body, but also outraged her modesty, pursuant to which, written complaint has been made to the higher authorities vide Ex. C/1 and complaint was also made to the Police Station Chakarbhata vide Ex. C/2 on 26.09.2014 and family members of applicant have also forced the complainant to compromise the matter due to which written complaint is also submitted on 04.10.2014 to the Police Station Nawagarh, District Bemetara and in view of statement of complainant under Section 164 of Cr.P.C., the applicant is not entitled to be released on anticipatory bail. 6. I have heard learned counsel appearing for the parties and considered their rival submissions and have also perused the case diary with utmost circumspection. 7. After hearing the learned counsel for the parties and after perusal of the case diary, the following facts would emerge: "(i) That, the applicant allegedly outraged the modesty/sexually harassed the complainant since September, 2013 to 12.09.2014 including that on 02.08.2014. (ii) That, the complainant lodged the written report to the Station House Officer only on 26.09.2014. (iii) That, the complainant made report to the higher authorities against the applicant and co-accused only on 26.09.2014. (iv) That, no medical evidence is available on the record." 8. Section 438 of the Code of Criminal Procedure provides for grant of bail to the person apprehending arrest. 9. Their Lordships of Supreme Court in Case of Gurbaksh Singh Sibba & others Vs. State of Punjab 1980 AIR 1632, laid down the principles for invoking Section 438 of Cr.P.C. and held as under:- "31. In regard to anticipatory bail if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. In regard to anticipatory bail if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made." 10. Further, the Supreme Court in case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others (2011)1 SCC 694 , has held as under:- "112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail : (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of, the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail." 113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record. 114. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualise all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the Judge concerned, after consideration of the entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the Judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the Court of Session or the High Court is always available." 11. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the Court of Session or the High Court is always available." 11. Undisputedly, the First Information Report in criminal cases is vital and valuable piece of evidence though may not be substantive piece of evidence. In a decision reported in Jai Prakash Singh Vs. State of Bihar (2012)4 SCC 379 , their Lordships of Supreme Court, highlighting the object of lodging First Information Report, have held as under:- "12. The FIR in a criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of the eye-witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it loses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question. (Vide Thulia Kali v. State of Tamil Nadu, AIR 1973 SC 501 ; State of Punjab v. Surja Ram, AIR 1995 SC 2413 ; Girish Yadav v. State of M.P., (1996) 8 SCC 186 ; and Takdir Samsuddin Sheikh v. State of Gujarat & Anr:, AIR 2012 SC 37 )." 12. The Supreme Court in a decision rendered in Vidyadharan Vs. State of Kerala (2004)1 SCC 215 , has held that, charge under Section 354 IPC is one which is very easy to make and is very difficult to rebut. 13. The Supreme Court in a decision rendered in Vidyadharan Vs. State of Kerala (2004)1 SCC 215 , has held that, charge under Section 354 IPC is one which is very easy to make and is very difficult to rebut. 13. Taking into consideration that offence in question is alleged to have been committed by the applicant since September, 2013, to 12.09.2014 including that on 02.08.2014 but, first information report came to be lodged by the complainant only on 26.09.2014 to the Police Station Chakarbhata and further taking note of the fact that during the aforesaid period (September, 2013, to 12.09.2014) the complainant continuously and regularly worked in the said office without making any complaint to any of the higher authorities and further taking note of the fact that place of incident is crowded area in working days and further taking into consideration absence of medical evidence to support the case of prosecution of sexual harassment and outraging the modesty of the complainant and taking judicial notice of the fact that the law reports are replete with the decisions where charges under Section354 IPC have been found to be advanced falsely and furthermore nothing has been brought on record to show that if anticipatory bail is granted to the applicant, taking advantage of the order of anticipatory bail, he will flee from justice, or applicant is habitual offender, however suitable conditions can be imposed to safeguard the interest of prosecution. Thus, considering the facts and circumstance of the case and also considering the nature and gravity of accusation and following the principles of law laid down by the Constitution Bench in Garbaksh Singh 1980 AIR 1632 (Supra) & Siddharam Satlingappa Mhetre (2011)1 SCC 694 (Supra), this court is of the considered opinion that it is a fit case for grant of anticipatory bail to the applicant. Accordingly, the application is allowed. It is directed that in the event of arrest, the applicant shall be released on bail on furnishing a bond in the sum of Rs. 50,000/- with one surety for the like sum to the satisfaction of the officer arresting him and he shall abide by all the following terms and conditions : "• That, the accused/applicant shall make himself available for interrogation before the concerned Investigating Officer as and when required and he shall co-operate with the investigating officer till completion of the investigation. 50,000/- with one surety for the like sum to the satisfaction of the officer arresting him and he shall abide by all the following terms and conditions : "• That, the accused/applicant shall make himself available for interrogation before the concerned Investigating Officer as and when required and he shall co-operate with the investigating officer till completion of the investigation. • That, the accused/applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to any police officer; • That, the accused/applicant shall not act, in any manner, which will be prejudicial to fair and expeditious trial." 14. It is clarified that observation made herein shall not be taken into consideration in other stage of criminal case, as it is only for the purpose of consideration of application for anticipatory bail and criminal case will be decided on its own merits without being influenced by any of the observations made hereinabove. 15. Certified copy, as per rules. Application Allowed.