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2021 DIGILAW 342 (HP)

Ved Prakash v. State Of H. P.

2021-06-15

ANOOP CHITKARA

body2021
JUDGMENT Anoop Chitkara, J. - Ved Prakash, an unmarried boy, aged 24 years, incarcerating along with his two friends w.e.f. 11th May 2021, upon their arrest on the allegations that he, with their help, kidnapped and carried the victim aged 24 years, to his home, where during the night he raped her, have come up before this Court seeking regular bail because Ved Prakash were classmates; she had visited his home on her own accord because she was upset with her engagement with another person, and being upset with her visit, her family members influenced her to lodge a false complaint to break their relationship. 2. Earlier, the petitioners had filed the following bail petitions: (a) Bail Application No. 63 of 2021, titled as Ved Prakash Vs. State of HP, Bail application No. 64 of 2021, titled as Pawan Kumar alias Raju Vs. State of HP and bail application No. 65 of 2021, titled as Duresh Kumar Vs. State of HP were filed before the Court of learned Sessions Judge, Mandi and the same stood dismissed on 27.5.2021. 3. In the bail applications, the petitioners declare having no criminal history. The status report also does not mention any criminal past of the accused. 4. Briefly, the allegations against the petitioners are that on 9.5.2021 the victim along with her fiancee visited the Police Station, Janjehali and informed that on 9.5.2021 she had gone to do the work of labour. In the evening at 5:00 pm when she was returning to home then accused Ved Prakash met her and proposed her to marry with him. On this she replied that she was already engaged and as such could not marry with him. On this accused Ved Prakash along with two more persons forcibly carried her to the main road and put her in the jeep and brought her to the home of Ved Prakash. After taking dinner, accused Ved Prakash committed wrong act with her. On the next morning her parents reached there and bring her back to their home. Based on these allegations, the Police registered the FIR mentioned above. 5. Ld. Counsel for the petitioners referred to Para 6 & 7 of CrMPM 991 of 2021 Ved Prakash Vs. State of HP and contended that incarceration before the proof of guilt would cause grave injustice to the petitioners and family. 6. Based on these allegations, the Police registered the FIR mentioned above. 5. Ld. Counsel for the petitioners referred to Para 6 & 7 of CrMPM 991 of 2021 Ved Prakash Vs. State of HP and contended that incarceration before the proof of guilt would cause grave injustice to the petitioners and family. 6. While opposing the bail, the alternative contention on behalf of the State is that if this Court is inclined to grant bail, such a bond must be subject to very stringent conditions. 7. The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative and stringent conditions. In Sushila Aggarwal, (2020) 5 SCC 1 , Para 92, the Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions. REASONING: 8. The explicit stand of the accused Ved Prakash is that he and the victim were classmates and were in contact. The victim was unhappy with her engagement fixed by her family. On this, she, on her own, visited his home, for which she even walked for two kilometres. Ved Prakash lives in a joint family of fifteen members, but she did not complain to anyone. Given her age being twenty-four years, her conduct reflected her ability, her physical and mental capacity to understand and make her own decision. 9. Along with the status report, the Investigator also attached a copy of the victim's statement recorded under section 164 CrPC. The law is no more Res Integra that under Section 207 CrPC, the accused is entitled to the copy of the statement under section 164 CrPC only after the concerned Court takes cognizance of the offence. Still, there is no restriction or bar on an investigating agency to bring the statements recorded under Section 164 CrPC to the notice of the concerned Court by handing over its copies or placing them on record along with the status report; however, despite this, the accused cannot ask for it. In Miss "A" v. State of Uttar Pradesh, (Cr. A 659 of 2020, decided on Oct 8, 2020), a three-judge bench of Hon'ble Supreme Court holds, [15]. In Miss "A" v. State of Uttar Pradesh, (Cr. A 659 of 2020, decided on Oct 8, 2020), a three-judge bench of Hon'ble Supreme Court holds, [15]. ...It is only after taking of the cognizance and issuance of process that the accused is entitled, in terms of Sections 207 and 208 of the Code, to copies of the documents referred to in said provisions. The filing of the charge-sheet by itself, does not entitle an accused to copies of any of the relevant documents including statement under Section 164 of the Code, unless the stages indicated above are undertaken. [16]. Thus, merely because the charge-sheet was filed by the time the High Court had passed the order in the present matter, did not entitle Respondent No.2 to a copy of the statement under Section 164 of the Code. [17]. That apart, the reason that weighed with the High Court in placing reliance on the decision of the Division Bench of the High Court rendered in the year 2012 which was before the directions were passed by this Court in Shivanna [State of Karnataka by Nonavinakere Police v. Shivanna alias Tarkari Shivanna, (2014) 8 SCC 913 ] was completely incorrect. As logical extension of the directions passed by this Court, no person is entitled to a copy of statement recorded under Section 164 of the Code till the appropriate orders are passed by the court after the charge-sheet is filed. The right to receive a copy of such statement will arise only after cognizance is taken and at the stage contemplated by Sections 207 and 208 of the Code and not before. 10. Initially, on 9th May 2021, the victim informed the Police about her being kidnapped and taken to the house of the accused, where Ved Prakash committed coitus with her, against her will and consent. However, on 12th May 2021, when the Judicial Magistrate Thunag, District Mandi, HP, recorded the victim's statement under section 164 CrPC, she stated that she was related to Ved Prakash and had gone to his house as a guest, about which her family members were unaware. She explicitly stated that she did not want to lodge any complaint against them and had nothing else to say. She explicitly stated that she did not want to lodge any complaint against them and had nothing else to say. The stand of the accused Ved Prakash that he and the victim were classmates and quite close, and being unsatisfied with her engagement, she had visited Ved Prakash's home on her own accord. Needless to say that the statement recorded under section 164 CrPC stands on a much superior pedestal in comparison to the information which formed the basis for 154 CrPC. In the light of the victim's statement under section 164 CrPC, wherein she corroborated the stand of the accused, there is absolutely no justification to deny bail. 11. The role of other co-accused Pawan Kumar @ Raju and Duresh Kumar are that they had helped the victim in brining her in their vehicle to the home of main accused Ved Prakash. Since this Court is granting bail to the main accused Ved Prakash for the reasons mentioned herein above, as such there is no justification to deny the bail of other co-accused. 12. An analysis of entire evidence does not justify further incarceration of the accused, nor is going to achieve any significant purpose. Without commenting on the case's merits, given the investigation stage, and the circumstances peculiar to this case, the petitioners make a case for release on bail. 13. In view of the above reasoning, the Court is granting bail to the petitioners, subject to strict terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973. 14. In Manish Lal Shrivastava v State of Himachal Pradesh, CrMPM No. 1734 of 2020, after analysing judicial precedents, this Court observed that any Court granting bail with sureties should give a choice to the accused to either furnish surety bonds or give a fixed deposit, with a further option to switch over to another. 15. The petitioners shall be released on bail in the FIR mentioned above, subject to their furnishing personal bonds of Rs. Ten thousand (INR 10,000/-), and shall furnish two sureties of Rs. Twenty-five thousand (INR 25,000/-) each, to the satisfaction of the Judicial Magistrate having the jurisdiction over the Police Station conducting the investigation, and in case of non-availability, any Ilaqa Magistrate. Ten thousand (INR 10,000/-), and shall furnish two sureties of Rs. Twenty-five thousand (INR 25,000/-) each, to the satisfaction of the Judicial Magistrate having the jurisdiction over the Police Station conducting the investigation, and in case of non-availability, any Ilaqa Magistrate. Before accepting the sureties, the concerned Magistrate must satisfy that in case the accused fails to appear in Court, then such sureties are capable to produce the accused before the Court, keeping in mind the Jurisprudence behind the sureties, which is to secure the presence of the accused. 16. In the alternative, the petitioners may furnish personal bonds of Rs. Ten thousand (INR 10,000/-), and fixed deposit(s) for Rs. Ten thousand only (INR 10,000/-), made in favour of Chief Judicial Magistrate of the concerned district. a) Such Fixed deposits may be made from any of the banks where the stake of the State is more than 50%, or any of the stable private banks, e.g., HDFC Bank, ICICI Bank, Kotak Mahindra Bank, etc., with the clause of automatic renewal of principal, and liberty of the interest reverting to the linked account. b) Such a fixed deposit need not necessarily be made from the account of the petitioner and need not be a single fixed deposit. c) If such a fixed deposit is made in physical form, i.e., on paper, then the original receipt shall be handed over to the concerned Court. d) If made online, then its printout, attested by any Advocate, and if possible, countersigned by the accused, shall be filed, and the depositor shall get the online liquidation disabled. e) The petitioners or their Advocate shall inform at the earliest to the concerned branch of the bank, that it has been tendered as surety. Such information be sent either by e-mail or by post/courier, about the fixed deposit, whether made on paper or in any other mode, along with its number as well as FIR number. f) After that, the petitioners shall hand over such proof along with endorsement to the concerned Court. g) It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. It shall also be open for the petitioner to apply for substitution of fixed deposit with surety bonds and vice-versa. f) After that, the petitioners shall hand over such proof along with endorsement to the concerned Court. g) It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. It shall also be open for the petitioner to apply for substitution of fixed deposit with surety bonds and vice-versa. h) Subject to the proceedings under S. 446 CrPC, if any, the entire amount of fixed deposit along with interest credited, if any, shall be endorsed/returned to the depositor(s). Such Court shall have a lien over the deposits up to the expiry of the period mentioned under S. 437-A CrPC, 1973, or until discharged by substitution as the case may be. 17. The furnishing of the personal bonds shall be deemed acceptance of the following and all other stipulations, terms, and conditions of this bail order: a) The petitioners to execute a bond for attendance to the concerned Court(s). Once the trial begins, the petitioners shall not, in any manner, try to delay the proceedings, and undertakes to appear before the concerned Court and to attend the trial on each date, unless exempted. In case of an appeal, on this very bond, the petitioner also promises to appear before the higher Court in terms of Section 437-A CrPC. b) The attesting officer shall, on the reverse page of personal bonds, mention the permanent address of the petitioner along with the phone number(s), WhatsApp number (if any), e-mail (if any), and details of personal bank account(s) (if available), and in case of any change, the petitioners shall immediately and not later than 30 days from such modification, intimate about the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, to the Police Station of this FIR to the concerned Court. c) The petitioners shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police officials, or any other person acquainted with the facts of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence. d) The petitioners shall join the investigation as and when called by the Investigating Officer or any Superior Officer; and shall cooperate with the investigation at all further stages as may be required. d) The petitioners shall join the investigation as and when called by the Investigating Officer or any Superior Officer; and shall cooperate with the investigation at all further stages as may be required. In the event of failure to do so, it will be open for the prosecution to seek cancellation of the bail. Whenever the investigation occurs within the police premises, the petitioner shall not be called before 8 AM and shall be let off before 5 PM, and shall not be subjected to third-degree, indecent language, inhuman treatment, etc. e) In addition to standard modes of processing service of summons, the concerned Court may serve or inform the accused about the issuance of summons, bailable and non-bailable warrants the accused through E-Mail (if any), and any instant messaging service such as WhatsApp, etc. (if any). [Hon'ble Supreme Court of India in Re Cognizance for Extension of Limitation, Suo Moto Writ Petition (C) No. 3/2020, I.A. No. 48461/2020- July 10, 2020]: i. At the first instance, the Court shall issue the summons. ii. In case the petitioner fails to appear before the Court on the specified date, in that eventuality, the concerned Court may issue bailable warrants. iii. Finally, if the petitioner still fails to put in an appearance, in that eventuality, the concerned Court may issue Non-Bailable Warrants to procure the petitioner's presence and may send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper to achieve the purpose. 18. The bail bonds shall continue to remain in force throughout the trial and after that in terms of Section 437-A of the CrPC. 19. Any Advocate for the petitioner and the Officer in whose presence the petitioners put signatures on personal bonds shall explain all conditions of this bail order, in vernacular and if not feasible, in Hindi. 20. In case the petitioner(s) finds the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioner(s) may file a reasoned application before this Court, and after taking cognizance, even to the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition. 21. 21. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation per law. 22. 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. 23. The SHO of the concerned Police Station or the Investigating Officer shall arrange to send a copy of this order, preferably a soft copy, to the victim, at the earliest, and not later than two days. In case the victim notices any objectionable behavior or violation of any terms or conditions of this order, the victim may inform the SHO of the concerned Police Station or the Trial Court or even to this Court. 24. There would be no need for a certified copy of this order for furnishing bonds. Any Advocate for the petitioner(s) can download this order along with the case status from the official web page of this Court and attest it to be a true copy. In case the attesting officer or the Court wants to verify the authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds. 25. In the facts and circumstances peculiar to these cases, the petitions are allowed in the terms mentioned above. Copy Dasti.