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Himachal Pradesh High Court · body

2020 DIGILAW 145 (HP)

Manoj Kumar v. State Of H. P.

2020-01-31

JYOTSNA REWAL DUA

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JUDGMENT Jyotsna Rewal Dua, Vacation J. (Oral). - The petitioner has preferred the instant petition under Section 438 Cr.P.C. for grant of anticipatory bail in FIR No.1 of 2020, dated 08.01.2020, under Section 376 of Indian Penal Code , registered at Women Police Station, Una, District Una (H.P.). 2. The interim protection was granted to the petitioner on 10.01.2020 subject to the terms and conditions stipulated therein. 3. The police has filed the status report today, which is taken on record. I have heard learned counsel for the parties and gone through the status report as well as relevant police record for the purpose of adjudication of present petition. 4. The gist of the prosecution case is that:- a complaint was preferred on 08.01.2020 by the prosecutrix to the effect that:- the prosecutrix knew the bail petitioner for the past about 10 years, who is running a Medicines Shop at Santoshgarh; the prosecutrix is married and has three children; her husband had left her; she and the bail petitioner became friendly, they had love affair and also developed physical relations; according to the prosecutrix, she had consented to have physical relations with the bail petitioner on account of promise of marriage extended by him to her; she also alleges that the bail petitioner forced the prosecutrix to have physical relations with him under threat of uploading her some videos; further complaint of the prosecutrix is that she was given some tablet by the bail petitioner on 31.12.2019. On the basis of these allegations, the FIR in question was registered against the bail petitioner at the behest of prosecutrix and accordingly the investigation was carried out by the police in the matter. 5. On the basis of these allegations, the FIR in question was registered against the bail petitioner at the behest of prosecutrix and accordingly the investigation was carried out by the police in the matter. 5. During investigation, it came out that:- prosecutrix was married, had three children and has not been divorced by her husband; the physical relations developed between the bail petitioner and the prosecutrix with their consent and they had such relations for the past about 6-7 years; it has further come in the investigation that the bail petitioner was unmarried and wanted to marry someone else; previously also on 25.10.2017, the prosecutrix though had also registered FIR No.332/2017 against the bail petitioner under Section 354 and 34 of the Indian Penal Code , however, as per record produced by the police, she herself withdrew this case on 11.09.2018; further, on 05.12.2019, the prosecutrix entered the house of the bail petitioner, entered into scuffle with him, quarreled with him and insisted on marring the bail petitioner and to remain with him at his home. The Video/C.D. of incident occurred on 05.12.2019, produced by the bail petitioner, was taken into custody by the police. Further, it has come in the status report that the prosecutrix had herself taken some tablet from her cloth on 31.12.2019, regarding which incident, FIR No.444 of 2019 has been lodged against her under Sections 451, 506 & 427 of the Indian Penal Code at Police Station Sadar, Una, District Una (H.P.). at the behest of the bail petitioner. As per status report, pursuant to the interim order dated 10.01.2020, the bail petitioner has joined the investigation and is cooperating with the Investigation Agency. 6. Therefore, in my considered view, at this stage, no fruitful purpose will be served by sending the bail petitioner to judicial custody. 7. It is apt to refer to guidelines for grant/refusal of anticipatory bail, reiterated by Five Judges Constitution Bench of the Honble Apex Court, recently in Special Leave Petition (Criminal) No.7281-7282 of 2017, titled Sushila Aggarwal and others versus State (NCT of Delhi) & Another, decided on 29.01.2020, whereby the Apex Court, while overruling Siddharam Satlingappa Mhetre v. State of Maharashtra and Others (2011) 1 SCC 694 , to the extent that it holds that no restrictive conditions can be imposed at all while granting antiipatory bail, has observed as follows:- '(3).Nothing in Section 438 Cr. PC, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. While considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts would be justified - and ought to impose conditions spelt out in Section 437 (3), Cr. PC [by virtue of Section 438 (2)]. The need to impose other restrictive conditions, would have to be judged on a case by case basis, and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed. (4) Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion; equally whether and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court.' Honble Apex Court in (2019) 9 SCC 24 , titled as P. Chidambaram versus Directorate of Enforcement , while dealing with the powers of the Court to grant anticipatory bail under Section 438 Cr.P.C., held as under:- 69. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy. 72. We are conscious of the fact that the legislative intent behind the introduction of Section 438 Cr.P.C. is to safeguard the individuals personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights - safeguarding the personal liberty of an individual and the societal interest. It cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant under Article 21 of the Constitution of India. 74. Ordinarily, arrest is a part of the process of the investigation intended to secure several purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. Pre-arrest bail is to strike a balance between the individuals right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In State Rep. Grant of anticipatory bail may hamper the investigation. Pre-arrest bail is to strike a balance between the individuals right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In State Rep. By The CBI v. Anil Sharma (1997) 7 SCC 187 , the Supreme Court held as under:- '6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation- oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.' 75. Observing that the arrest is a part of the investigation intended to secure several purposes, in Adri Dharan Das v. State of W.B. (2005) 4 SCC 303 , it was held as under:- '19. Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance, to maintain law and order in the locality. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance, to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well defined and the jurisdictional scope of interference by the court in the process of investigation is limited. The court ordinarily will not interfere with the investigation of a crime or with the arrest of the accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code.' 76. In Siddharam Satlingappa Mhetre v. State of Maharashtra and Others (2011) 1 SCC 694 , the Supreme Court laid down the factors and parameters to be considered while dealing with anticipatory bail. It was held that the nature and the gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made and that the court must evaluate the available material against the accused very carefully. It was also held that the court should also consider whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. 77. After referring to Siddharam Satlingappa Mhetre and other judgments and observing that anticipatory bail can be granted only in exceptional circumstances, in Jai Prakash Singh v. State of Bihar and another (2012) 4 SCC 379 , the Supreme Court held as under:- '19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu v. P.T. Manokaran (2007) 4 SCC 434 , State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain (2008) 1 SCC 213 and Union of India v. Padam Narain Aggarwal (2008) 13 SCC 305 .)' 8. Considering the totality of the facts and circumstances of the case, which has come on record during the investigation and taking into account the fact that the bail petitioner is permanent resident of Village Ajnoli, Post Office Kotla Kalan, District Una (H.P.), it is apparent that the present is a case where the interim protection granted on 10.01.2020 to the petitioner deserves to be confirmed. Ordered accordingly. The bail is confirmed subject to the following conditions:- i). The bail petitioner shall appear and join the investigation as and when directed to do so by the Investigating Officer; ii). The bail petitioner shall not contact the complainant and witnesses, to threaten or browbeat them or to use any pressure tactics in any manner whatsoever; iii). The bail petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer or tamper with the evidence; iv). In case of launching of prosecution, The bail petitioner shall regularly attend the trial on each and every date of hearing and if prevented by any reason to do so, shall seek exemption from personal appearance by filing appropriate application; iv). The bail petitioner shall not leave India without prior permission of the Court; and v). The bail petitioner shall not tamper with prosecution evidence nor hamper investigation of the case, in any manner, whatsoever. 9. It is clarified that the observations made above are only for the purpose of adjudication of the present bail petition and learned Trial Court shall not be influenced by any of these observations while deciding the case on merits. It shall be open for the prosecution to move for cancellation of the bail in case the petitioner abuses the liberty granted and breaches any of the conditions of bail. The petition stands disposed of in the above terms. It shall be open for the prosecution to move for cancellation of the bail in case the petitioner abuses the liberty granted and breaches any of the conditions of bail. The petition stands disposed of in the above terms. Copy 'Dasti'.