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Himachal Pradesh High Court · body

2020 DIGILAW 308 (HP)

Jatinder Kumar v. State of Himachal Pradesh

2020-06-03

ANOOP CHITKARA

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JUDGMENT : Anoop Chitkara, Judge COURT PROCEEDINGS CONVENED THROUGH VIDEO CONFERENCE The petitioner who is under incarceration for last more than eight months for having been arrested for committing coitus with his unmarried distant sister-in-law, who being a minor, aged 15 years 10 months and 9 days, making the sexual intercourse a statutory rape, has come up before this Court, seeking regular bail. 2. The petitioner did not file any power of attorney. To contain the spread of Novel Corona Virus, the Epidemiologists have advised to maintain social distancing in the entire world. Consequently, to avoid unnecessary congregation, this Court exempts the petitioner from filing the power of attorney. 3. While issuing notices to the State, the Court had requested Mr. Nand Lal Thakur, Additional Advocate General to procure status report either through WhatsApp/e-mail and forward the same to this Court on e-mail id highcourt-hp@nic.in and also send the scanned copy or PDF copy of the status report to the learned Counsel for the petitioner on his WhatsApp number. 4. Mr. Nand Lal Thakur, learned Additional Advocate General has filed the status report through e-mail, printout whereof has been placed on record. He further submits that he has sent a copy of the status report to learned counsel for the petitioner on his WhatsApp number. 5. I have read the status report (s) and heard counsel for the parties through video conferencing. EVIDENCE: 6. The gist of the First Information Report and the status report is that the petitioner was married to cousin sister of the victim and due to such relationship, he was quite close to her. In the beginning of the year 2019, the petitioner had gifted a mobile phone and asked her not to tell anything about this being gifted to her. The petitioner and the victim used to talk to each other on this mobile phone. On 15.6.2019, the petitioner called the victim and told her to come to near the School by stating that his wife wanted to meet her. On this, the victim went to that place, where she found the accused present in his Swift car. The victim asked her brother-in-law about her sister and on this the petitioner asked her to sit in the car. On this, the victim went to that place, where she found the accused present in his Swift car. The victim asked her brother-in-law about her sister and on this the petitioner asked her to sit in the car. The victim further alleges that she refused to sit in the car, on which, the accused forcibly made her sit in the car and took her towards Ropar from Bunga Sahib, and on reaching an isolated forest, he committed rape upon her. After this, the petitioner dropped her near her village and also carried the mobile phone with him. On reaching home, the victim revealed the incident to her mother and consequentially, FIR got registered against the petitioner. In statement under Section 164 CrPC, recorded on oath before the JMIC, the victim re-iterated her version recorded in the FIR. The police took her for medical examination, where doctor did not rule out sexual intercourse and obtained fluids from her vaginal swabs and sent them for testing for Forensic Science Laboratory, which gave a negative report about the presence of semen. PREVIOUS CRIMINAL HISTORY 7. As per the status report, there is no previous criminal history of the bail petitioner. SUBMISSIONS: 8. Mr. Rajesh Kumar Parmar, learned counsel for the bail petitioner submits that the allegations are false, which is proved by the scientific evidence, which did not detect any semen for her vaginal swabs. To the contrary, Mr. Nand Lal Thakur, Additional Advocate General, contended that the victim reiterated her allegations on oath in her statement under Section 164 CrPC, which is a sufficient prima facie evidence. 12 Whether reporters of Local Papers may be allowed to see the judgment? ANALYSIS AND REASONING: 9. Pre-trial incarceration needs justification depending upon the heinous nature of the offence, terms of the sentence prescribed in the Statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, and doing away with victim (s) and/or witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State. 10. Any detailed discussions about the evidence may prejudice the case of the prosecution or the accused. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State. 10. Any detailed discussions about the evidence may prejudice the case of the prosecution or the accused. Suffice it to say that keeping in view the nature of allegations and the victim traveling in the car to a distant place and alleged rape having been taken place in the car itself, coupled with the fact that in the Laboratory, the expert did not deduct any semen on the clothes as well as vaginal swab of the victim and further coupled with the fact that perusal of the physical examination of the victim in clinic, the Doctor having noticed old healed tears, further incarceration may not be justified subject to imposition of stringent conditions. 11. Thus, keeping in view the fact that the DNA report did not find presence of any semen on the swabs obtained from the victim and looking into her over all conduct, this Court is of the opinion that further incarceration of the accused during the period of trial is not warranted, especially keeping if view the fact that he is in jail for more than one year and nine months, and also for the following reasons: (a) The material aspect of the investigation is complete. (b) The petitioner is in judicial custody since 18.9.2019. (c) The petitioner is a permanent resident of Village Kadayan, P.O. Bhurain, Police Station & Tehsil Bagana, District Una, H.P., therefore, his presence can always be secured. (d) Before releasing the petitioner from custody, his AADHAR and other proofs of identity to secure presence during trial, be procured. 12. Given the above reasoning, in my considered opinion, the judicial custody of the petitioner is not going to achieve any significant purpose. Thus, the Court is granting bail, subject to the following conditions, irrespective of the contents of the bonds, and the furnishing of bail bonds shall be deemed acceptance of all stipulations, terms and conditions of this bail order: (a) The petitioner shall furnish personal bond in the sum of Rs. 10,000/- (rupees ten thousand only) with one surety in the like amount, to the satisfaction of the Sessions Court/Special Court/ Chief Judicial Magistrate/Ilaqua Magistrate/Duty Magistrate/the Court exercising jurisdiction over the concerned Police Station where FIR is registered. 10,000/- (rupees ten thousand only) with one surety in the like amount, to the satisfaction of the Sessions Court/Special Court/ Chief Judicial Magistrate/Ilaqua Magistrate/Duty Magistrate/the Court exercising jurisdiction over the concerned Police Station where FIR is registered. (b) The bail bonds shall continue to remain in force throughout the trial and even after that in terms of Section 437-A of the CrPC. (c) The petitioner shall join investigation as and when called by the Investigating officer or any superior officer. Whenever the investigation takes place within the boundaries of the Police Station or the Police Post, then the petitioner shall not be called before 8 AM and shall be let off before 5 PM. The petitioner shall not be subjected to third-degree treatment, indecent language etc. (d) The petitioner shall not influence, threaten, browbeat or pressurize the complainant, witnesses, and the Police official (s). (e) The petitioner shall not make any inducement, threat, or promise, directly or indirectly, to the Investigating officer, or any other person acquainted with the facts of the case, to dissuade her from disclosing such facts to the Police, or the Court, or tamper with the evidence. (f) The petitioner shall appear before the trial Court, on issuance of summons/warrants by such Court. (g) There shall be a presumption of proper service to the petitioner about the date of hearing in the trial Court, even if such service takes place through phone/mobile/SMS/WhatsApp/E-Mail/ or any other similar medium, by the trial Court, or by the Prosecution. In case the petitioner does not appear before the trial Court on such date of hearing, then the trial Court may issue bailable warrants, and if the petitioner still fails to put in appearance, then the trial Court may issue Non-Bailable warrants to procure the presence of the petitioner, and send the petitioner to the Judicial custody for the period for which the trial Court may deem fit and proper, without being unduly harsh towards him. (h) The petitioner shall attend the trial on each date, unless exempted. (h) The petitioner shall attend the trial on each date, unless exempted. (i) In case of Non-appearance on the intimated date, then irrespective of the contents of the bail bonds, the petitioner undertakes to pay all the expenditure (only the principal amount without interest), that the State might incur to produce him before such Court, provided such amount exceeds the amount recoverable after forfeiture of the bail bonds, subject to the provisions of Sections 446 & 446-A of CrPC. The failure of the petitioner to reimburse the State shall entitle the trial Court to order transfer of money from the bank account (s) of the petitioner. However, this recovery is subject to the condition that the expenditure incurred must be only to trace the petitioner and relates to the exercise undertaken solely to nab the petitioner in that FIR, and during that voyage, the Police had not gone for any other purpose/function what so ever. (j) The petitioner shall abstain from all criminal activities, if he does so, then in the fresh FIR, the Court shall take into account that even earlier the Court had cautioned the accused not to repeat the offence. (k) The petitioner shall surrender all firearms along with ammunitions, if any, and the arms license to the concerned authority within 30 days from today. (l) The petitioner shall not enter within a radius of five kilometers, the distance being measured from the shortest route from the residence of the victim (s), until the recording of her statement (s). However, irrespective of these conditions, the petitioner is permitted to visit her/his workplace, chambers of her/his Lawyer (s), Courts, Hospitals and other places of essential services, if not available elsewhere. (m) In case, the petitioner needs to visit within the above mentioned 5 km area, then she/he shall take permission of the I.O. or any Police Officer superior to her, of the concerned Police Station; or Pradhan/Up-Pradhan/ Ward Member/ of the area, in whose jurisdiction the residence of the victim (s) falls, or of any MP, MLA, or any Gazetted Officer. Such permission shall be reasoned, and shall mention the period for its grant, and may be on a paper, voice recording, e-mail, or WhatsApp etc. The Court is putting this condition to ensure that the victim (s) suffer no trauma, at least till the time of recording of statement (s) in Court. Such permission shall be reasoned, and shall mention the period for its grant, and may be on a paper, voice recording, e-mail, or WhatsApp etc. The Court is putting this condition to ensure that the victim (s) suffer no trauma, at least till the time of recording of statement (s) in Court. In case the petitioner needs modification of this condition, then she/he may file a reasoned application before this Court, and after taking cognizance, before the Court taking cognizance or the trial Court, as the case may be. (Applicable only in the cases of sexual offences, assault or social unrest). (n) The petitioner shall intimate about the change of residential address, and change of phone numbers, within 30 days from such change, to the police station, and after filing of the Police report also to the trial Court. (o) In case of violation of any of the conditions as stipulated in this order, the State/Public Prosecutor may file an application for cancellation of bail of the petitioner, and even the trial Court shall be competent to cancel the bail. 13. In case the petitioner finds the bail condition (s) as violating fundamental or other rights, including any human rights, or faces any other difficulty due to any condition, then for modification of such term (s), the petitioner may file a reasoned application before this Court, and after taking cognizance, before the Court taking cognizance or the trial Court, as the case may be and the trial Court shall also be competent to modify or delete any condition. 14. The Counsel representing the accused and the Judicial officer accepting the bail bonds, shall explain all conditions of this bail order to the petitioner, in vernacular. 15. The petitioner undertakes to comply with all directions given in this order, and the furnishing of bail bonds by the petitioner is acceptance of all such conditions. 16. Consequently, the petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing bail bonds in the aforesaid terms. 17. The Court attesting the bail bonds shall ascertain the identity of the bail-petitioner, his family members, through AADHAR Card. The petitioner shall give details of AADHAR Card, phone number (s), WhatsApp number, e-mail, Facebook account, etc., Pan Card and Passport if available, on the reverse page of the bonds. 17. The Court attesting the bail bonds shall ascertain the identity of the bail-petitioner, his family members, through AADHAR Card. The petitioner shall give details of AADHAR Card, phone number (s), WhatsApp number, e-mail, Facebook account, etc., Pan Card and Passport if available, on the reverse page of the bonds. The petitioner shall also furnish details of personal bank account (s). 18. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency, from further investigation. 19. The present bail order is only for the FIR mentioned above. It shall not be a blanket order of bail in all other cases, if any, registered against the petitioner. 20. The SHO/Additional SHO of the concerned Police Station or the Investigating Officer shall send a copy of this order, preferably a soft copy, to the complainant. 21. Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments. 22. The Court Master shall handover this order to the concerned branch of the Registry of this Court, and the said official shall immediately send a copy of this order to the District and Sessions Judge, concerned, by e-mail. The Court attesting the bonds shall not insist upon the certified copy of this order, and shall download the same from the website of this Court, or accept a copy attested by an Advocate, which shall be sufficient for the purposes of the record. The Court Master shall handover an authenticated copy of this order to the Counsel for the Petitioner, and to the Learned Advocate General, if they ask for the same. 23. The petition stands allowed in the terms mentioned above.