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2023 DIGILAW 508 (HP)

Hitesh Sharma v. State of Himachal Pradesh

2023-12-12

RAKESH KAINTHLA

body2023
JUDGMENT : Rakesh Kainthla, J. The petitioner has filed the present petition for seeking pre-arrest bail. It has been asserted that FIR No. 211/2023 dated 03.10.2023 was registered against the petitioner at Police Station, Boileauganj, Shimla for the commission of offences punishable under Sections 376, 377, 354(A) & 506 of IPC. The petitioner is innocent and he was falsely implicated. The allegations levelled against the petitioner are totally vague. The informant is threatening the petitioner to file a false complaint against him, in case, he failed to pay Rs.10,00,000/- to her. The informant is the business partner of Mr. Anuj Singh. The petitioner had entered into an agreement with the wife of Mr. Anuj Singh. She issued a cheque to the petitioner but it was dishonoured. The petitioner filed a complaint against her. The informant filed a false case against the petitioner in connivance with Anuj Singh. The petitioner will join the investigation. He will abide by all the terms and conditions, which may be imposed by this Court. Hence, the petition. 2. The petitioner is opposed by filing a status report asserting that the informant made a complaint to the police against the petitioner stating that she had issued an advertisement regarding the lease of a hotel and restaurant in old Manali. Anuj contacted her and told her that he knew the present petitioner, who was running a hotel in Shimla. She contacted the petitioner, who called her to his hotel. She went to the petitioner’s hotel on 22.04.2023, where she was allotted Room No.102. The petitioner came to her room and offered food and soft drinks. The informant paid Rs.50,000/- on 22.04.2023 and Rs.1,50,000/- on 23.04.2023 to the petitioner towards the hotel lease deed. The petitioner raped the informant in her room. He apologized for his behaviour in the morning. He again sexually assaulted the informant on 30.04.2023 at 10:00 am. He threatened her and told her that he would not enter into any agreement with her in case of disclosure of the incident to any person. The police registered the FIR and conducted the investigation. The statement of the informant was also recorded before the Court. As per the investigation, the location of the informant and the petitioner was found to be in Shimla on the dates of the incidents. The police also found that the informant had transferred Rs.8,50,000/- to the petitioner. The police registered the FIR and conducted the investigation. The statement of the informant was also recorded before the Court. As per the investigation, the location of the informant and the petitioner was found to be in Shimla on the dates of the incidents. The police also found that the informant had transferred Rs.8,50,000/- to the petitioner. The statement of the informant regarding the payment of the room rent and meal expenses was also corroborated. The petitioner produced the record regarding the license of the hotel but he could not produce any record of the lease. The petitioner can intimidate the witnesses, in case, he is released on bail. Hence, it was prayed that the present petition be dismissed. 3. I have heard Mr. Sanjeev Bhushan, learned Senior Counsel assisted by Mr. Rakesh Chauhan, learned counsel for the petitioner, Mr. Jitender Sharma, learned Additional Advocate General for the respondent/State and Mr. Mohinder Pal, learned counsel for the informant/victim. 4. Mr. Sanjeev Bhushan, learned Senior Counsel for the petitioner submitted that there is a delay in reporting the matter to the police. The informant was in contact with the petitioner even after the incident, which falsifies her version regarding the rape. Petitioner would abide by all the terms and conditions, which may be imposed by this Court. Hence, he prayed that the present petition be allowed and the petitioner be released on bail. 5. Mr. Jitender Sharma, learned Additional Advocate General for the respondent/State submitted that the petitioner was involved in the commission of a heinous crime. The custodial interrogation of the petitioner is required; therefore, he prayed that the present petition be dismissed. 6. Mr. Mohinder Pal, learned counsel for the informant/victim adopted the submissions made by the learned Additional Advocate General. 7. I have given considerable thought to the rival submissions at the bar and have gone through the record carefully. 8. It was laid down by the Hon’ble Supreme Court in P. Chidambaram vs. Directorate of Enforcement 2019 (9) SCC 24 that the power of pre-arrest is extraordinary and should be exercised sparingly. It was observed : “67. Ordinarily, arrest is a part of the 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. It was observed : “67. Ordinarily, arrest is a part of the 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 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; the possibility of the 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 the 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.” 9. The version of the informant regarding her presence in the hotel of the petitioner on the date of the incident is duly corroborated by the transfer made from her account towards the room rent and meal charges. Mere delay in reporting the matter to the police cannot lead to an inference that no incident had taken place. As per the informant, she had already transferred the amount of Rs.50,000/- and 1,50,000/- to the petitioner and the petitioner threatened not to return the amount to her. The version of the informant regarding the transfer of the amount is duly corroborated by the entries in her bank account. The police did not find any evidence of the transaction between the petitioner and Anuj Sharma, which falsifies the version of the petitioner that he had entered into an agreement with Anuj Sharma. 10. A heavy reliance was placed upon the WhatsApp conversation between the petitioner, the victim and Anuj Sharma. However, the authenticity of these conversations is yet to be determined and it is difficult to say anything about them at this stage. 11. The informant had specifically stated that the petitioner raped her and thereafter, he sexually assaulted her. A statement under Section 164 of Cr.P.C. has also been recorded. However, the authenticity of these conversations is yet to be determined and it is difficult to say anything about them at this stage. 11. The informant had specifically stated that the petitioner raped her and thereafter, he sexually assaulted her. A statement under Section 164 of Cr.P.C. has also been recorded. It was laid down by Hon’ble Supreme Court in Ms X vs. State of Maharashtra and another, 2023 STPL 3386 SC, [2023(2) Crimes 66 (SC)] that pre-arrest bail cannot be granted in an offence punishable under Section 376 of IPC. It was observed : “22. Surprisingly, none of the aforesaid aspects have been touched upon in both the impugned orders. The nature and gravity of the alleged offence has been disregarded. So has the financial stature, position and standing of the accused vis-a-vis the appellant/prosecutrix been ignored. The High Court has granted anticipatory bail in favour of the respondent No. 2/accused in a brief order of three paragraphs, having been swayed by the 'star variations in the narration of the prosecutrix' implying thereby that what was originally recorded in the FIR, did not make out an offence of rape, as defined in Section 375 IPC, which is an erroneous assumption. Even if the first Supplementary statement of the appellant/prosecutrix recorded in the evening hours of 6th August 2022, the date on which the FIR had been registered against the respondent No.2/accused in the first half of the same day, her second Supplementary statement recorded on 6th September 2022 and the Medico-Legal Report of the doctor who had examined the appellant/prosecutrix on 8th August 2022, are kept aside for a moment, we find that there was still sufficient material in the FIR that would prima facie attract the provision of Section 376, IPC. In our opinion, these factors ought to have dissuaded the High Court from exercising its discretion in favour of respondent No.2/accused for granting him anticipatory bail. Final Order: 12. Consequently, the petitioner is not entitled to bail. Hence, the present petition fails and the same is dismissed. 13. The observation made herein before shall remain confined to the disposal of the application and will have no bearing, whatsoever, on the merits of the case.