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2024 DIGILAW 254 (HP)

Jaswinder Singh v. State of Himachal Pradesh

2024-04-10

RANJAN SHARMA

body2024
JUDGMENT : Ranjan Sharma, J. Bail Petitioner, namely Jaswinder Singh, has come up before this Court seeking pre-arrest bail, under Section 438 of the Code of Criminal Procedure [hereinafter referred to as ‘Cr.P.C.’] originating from FIR No.47, dated 23.12.2023, under Sections 354, 354-A, 504 & 506 of the Indian Penal Code [hereinafter referred to as ‘IPC’] registered at Women Police Station Una, District Una [H.P.] FACTUAL MATRIX 2. The case set up by Mr. Hemant Kumar Thakur, learned counsel for the petitioner, is that the complainant [X] had asked for financial assistance which was extended by the bail petitioner as per details in Para-3 of Annexure P-1. Since the amounts so given to the complainant [X] were not repaid, therefore, the bail petitioner got issued a legal notice on 01.09.2023 [Annexure P-1] but in vain. The bail petitioner is stated to have filed a suit for recovery of Rs.1,26,500/- [Annexure P-2] with Civil Judge (Senior Division), Una, which is pending as on day. The bail petitioner is stated to have made a request to the Senior Superintendent of Police, Rup Nagar, on 27/28.10.2023 [Annexure P-3], requesting the concerned Police Authorities to take action against the complainant [X]. Since no action was taken, the bail petitioner was constrained to approach the High Court of Punjab and Haryana in CRM-M-56752-2023 (O&M) and the same was decided on 09.11.2023 [Annexure P-5], whereby, the Court concerned directed the Superintendent of Police, Rup Nagar, to decide the representation in accordance with law. It is further averred that on 25.12.2023, the bail petitioner made a request to the Superintendent of Police, Una, not to take action on any complaint submitted by the complainant against the bail petitioner, as the same is an outcome of the revenge and ulterior motives, just to escape the repayment of financial assistance so availed by the complainant. 3. The bail petitioner is stated to have filed a bail application No.27 of 2024 before the learned Additional Sessions Judge-II, Una, and the same was dismissed on 23.01.2024 [Annexure P-8] for want of presence, of the accused, at the time of hearing of the bail application. 4. In the background of the facts, referred to above, the learned counsel for the bail petitioner submits that the petitioner has been falsely implicated at the behest of fictitious and wrong allegations levelled by the complainant [X] against him. 4. In the background of the facts, referred to above, the learned counsel for the bail petitioner submits that the petitioner has been falsely implicated at the behest of fictitious and wrong allegations levelled by the complainant [X] against him. It is further stated in the application that the present FIR is a result of revenge at the behest of the complainant, who still has not repaid the financial assistance availed by her. The bail petitioner has given an undertaking that the bail petitioner shall join investigation and shall not leave the jurisdiction of this Court and shall not tamper with the evidence and cause any threat to the witnesses in any manner. After the registration of FIR, the bail petitioner, namely [Jaswinder Singh], moved an application for anticipatory bail under Section 438 Cr.P.C. before the Learned Additional Sessions Judge-II, Una, District Una [H.P.] in bail application No.27/2024 but the same was dismissed by the Learned Trial Court on account of non-appearance of the petitioner-accused [Jaswinder Singh] before the said Court. In this background, this is how the bail petitioner has approached this Court, for anticipatory bail. In the instant proceedings, the matter was listed before this Court on 14.02.2024 when this Court issued notice and directed the State Authorities to file the reply/status report. However, in the interim, in view of the averments made in the bail application before this Court, the interim bail was granted in favour of the present petitioner. The matter was then, listed on 05.03.2024 when status report was filed. The matter was then listed on 19.03.2024 when, the fresh status report dated 18.03.2024 was again filed before this Court [Taken on Record]. The status report dated 05.03.20245 and the status report dated 18.03.2024 are pari materia in nature based on same/similar averments. A perusal of the status report reveals that the entire case set up by the prosecution is that though the bail petitioner [Jaswinder Singh] and the complainant [X] are related to each other but it was alleged by the complainant that on 16.08.2023 she had gone along with the bail petitioner to the Courts at Rupnagar [Punjab] to get the MACT claim compensation awarded in favour of her parents from the said Court. It was averred in the status report that on way back from Rup Nagar [Punjab] to Una on 16.08.2023 the bail petitioner was alleged to have taken the complainant [X] to a place near Nangal where the complainant alleges that the bail petitioner had resorted to unwarranted acts. The status report further points out that the statement of the complainant under Section 161 Cr.P.C. and the statement under Section 164 Cr.P.C. before the jurisdictional Magistrate were recorded. Most importantly, the status report further reveals that the entire allegations and counter-allegations originate from an inter se dispute bail petitioner [Jaswinder Singh] and the alleged victim [X] on account of some motor accident claim amount. The status report further reveals that as per the complainant, out of Rs.14,00,000/- [Rupees Fourteen Lakh], an amount of Rs.1,26,000/- [Rupees One Lakh Twenty Six Thousand] has been repaid by the bail petitioner and an amount of Rs.11,50,000/- [Rupees Eleven Lakh Fifty Thousand] is yet to be paid by the bail petitioner to the aforesaid complainant [X], as referred to above. It is further averred in the status report that as per the complaint, the bail petitioner was accompanied by another person but the bail petitioner has not disclosed the name of the said petitioner. In these circumstances, the status report was filed before this Court. 5. Heard Mr. Hemant Kumar Thakur, learned counsel for the petitioner and Learned State Counsel Mr. Tejasvi Sharma. 6. In these circumstances, the status report was filed before this Court. 5. Heard Mr. Hemant Kumar Thakur, learned counsel for the petitioner and Learned State Counsel Mr. Tejasvi Sharma. 6. Before proceeding with the discussion on the instant bail application, it is relevant to take note of the provisions of Section 438 of Cr.P.C. and Sections 354, 354-A, 504 and 506 of IPC, which read as under:- “Section 438 Cr.P.C.: Direction for grant of bail to person apprehending arrest: (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter-alia, the following factors, namely— (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he 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; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail; Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this Sub-Section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application. (1A) Where the Court grants an interim order under Sub-Section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court. (1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. (2) When the High Court or the Court of Session makes a direction under subsection (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including— (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person 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 from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under Sub-Section (3) of section 437, as if the bail were granted under that section. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-Section (1). (4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code.” “Section 354 Indian Penal Code: Assault or criminal force to woman with intent to outrage her modesty.— Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, 1 [shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine].” “Section 354-A Indian Penal Code: Sexual harassment and punishment for sexual harassment.— (1) A man committing any of the following acts— (i) physical contact and advances involving unwelcome and explicit sexual overtures; or (ii) a demand or request for sexual favours; or (iii) a demand or request for sexual favours; or (iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment. (2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both. (2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both. (3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.” “Section 504 Indian Penal Code: Intentional insult with intent to provoke breach of the peace.— Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” “ Section 506 Indian Penal Code: Punishment for criminal intimidation.— Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.— and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1 [imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.” 7. In the backdrop of the statutory provision referred to above, this Court will re-miss in case the mandate of the Hon’ble Supreme Court governing the principles recalling anticipatory bail or regular bail, as the case may be are not taken care of. 8. In the backdrop of the statutory provision referred to above, this Court will re-miss in case the mandate of the Hon’ble Supreme Court governing the principles recalling anticipatory bail or regular bail, as the case may be are not taken care of. 8. Notably, the claim of an accused for bail [be it anticipatory or regular] is to be examined/tested within the parameters prescribed of the Code of Criminal Procedure and also the broad parameters mandated by the Hon’ble Supreme Court regulating grant of bail in Gurbaksh Singh Sibbia versus State of Punjab (1980) 2 SCC 565 , Ram Govind Upadhyay versus Sudarshan Singh (2002) 3 SCC 598 ; Kalyan Chandra Sarkar versus Rajesh Ranjan, (2004) 7 SCC 528 ; Prasanta Kumar Sarkar versus Ashish Chatterjee, (2010) 14 SCC 496 ; reiterated in P. Chidambaram versus Directorate of Enforcement, (2019) 9 SCC 24 , mandating that the bail {anticipatory or regular} is to be granted where the case is frivolous or groundless and no prima facie or reasonable grounds exists which lead to believe or point out towards accusation ; and these parameters for regular bail have been reiterated in Sushila Aggarwal versus State-NCT Delhi, (2020) 5 SCC 01. 9(i). While dealing with the case for grant of regular bail, the three judges bench of Hon’ble Supreme Court, after reiterating the broad parameters, has held in Deepak Yadav versus State of Uttar Pradesh, (2022) 8 SCC 559 , in Para 25 that the nature of the crime has a huge relevancy, while considering claim for bail. 9(ii). In the case of Ansar Ahmad versus State of Uttar Pradesh, 2023 SCC Online SC 974, the Hon’ble Supreme Court had expanded the horizon of the broad parameters, which are to be primarily taken into account, for considering the claim for regular bail or anticipatory bail as under: 11. Mr. R. Basant, the learned Senior Counsel appearing for one of the private respondents that the Court while granting bail is not required to give detailed reasons touching the merits or de-merits of the prosecution case as any such observation made by the Court in a bail matter can unwittingly cause prejudice to the prosecution or the accused at a later stage. The settled proposition of law, in our considered opinion, is that the order granting bail should reflect the judicial application of mind taking into consideration the well - known parameters including: (i) The nature of the accusation weighing in the gravity and severity of the offence; (ii) The severity of punishment; (iii) The position or status of the accused, i.e. whether the accused can exercise influence on the victim and the witnesses or not; (iv) Likelihood of accused to approach or try to approach the victims/witnesses; (v) Likelihood of accused absconding from proceedings; (vi) Possibility of accused tampering with evidence; (vii) Obstructing or attempting to obstruct the due course of justice; (viii) Possibility of repetition of offence if left out on bail; (ix) The prima facie satisfaction of the court in support of the charge including frivolity of the charge; (x) The different and distinct facts of each case and nature of substantive and corroborative evidence. 12. We hasten to add that there can be several other relevant factors which, depending upon the peculiar facts and circumstances of a case, would be required to be kept in mind while granting or refusing bail to an accused. It may be difficult to illustrate all such circumstances, for there cannot be any straight jacket formula for exercising the discretionary jurisdiction vested in a Court under Sections 438 and 439 respectively of the CrPC, as the case may be. 9(iii). In CBI versus Santosh Karnani, (2023) 6 SCALE 250, the Hon’ble Supreme Court has reiterated the illustrative time tested broad parameters which are required to be taken into account while considering the prayer for bail ; which have recently been reiterated by the Hon’ble Supreme Court in the case of State of Haryana versus Dharamraj, 2023 SCC OnLine SC 1085. 10. In normal parlance, the principle of law is that bail is a rule and jail is an exception. However, this Court is conscious of the fact that the power under Section 438 is an extraordinary power and the same has to be exercised sparingly. 10. In normal parlance, the principle of law is that bail is a rule and jail is an exception. However, this Court is conscious of the fact that the power under Section 438 is an extraordinary power and the same has to be exercised sparingly. It is trite law that while considering the prayer for bail {pre-arrest bail or regular bail], the formation of prima facie opinion is to gathered as to whether reasonable grounds exist pointing towards accusation or whether the accusation is frivolous and groundless with the object of either injuring or humiliating or where a person has falsely been roped in the crime needs to be tested in the background of the self-imposed restrains or the broad parameters mandated by law, as referred to herein above. 11. This Court is also conscious of the fact that as per the mandate of law, in Criminal Appeal No 3840 of 2023, titled as Saumya Churasia versus Directorate of Enforcement, decided on 14.12.2023, while considering the prayer for bail, though a Court is not required to weigh the evidence collected by the Investigating Agency meticulously, nonetheless, the Court should keep in mind the nature of accusation, the nature of evidence collected in support thereof, the severity of punishment prescribed for alleged offences, the character of the accused, the circumstances which are peculiar to the accused, the reasonable possibility of securing the presence of the accused during trial, reasonable apprehension of the witnesses being tampered with, the large interests of the public/state. In this background, while testing the claim for bail, the Court is required to form a prima-facie opinion in the context of the broad-parameters referred to above, without delving into the evidence on merits, as it may tend to prejudice the rights of the accused as well as the prosecution. ANALYSIS OF CLAIM OF INSTANT CASE: 12. After taking into account the entirety of the facts and circumstances of the instant case, the statutory provisions of the mandate of the Hon’ble Supreme Court, as referred to above, this Court is of the considered view that the bail petitioner, namely Jaswinder Singh, is entitled to be enlarged on bail by making the earlier orders dated 14.02.2024 as absolute for the following reasons: 12(i). A perusal of the FIR and the status report reveal that neither any prima facie case nor any reasonable grounds exist to believe the prima facie case against the bail petitioner [Jaswinder Singh], referred to above. 12(ii). The FIR, the status report and the material on record i.e. the statements made by the complainant [X] under Section 161 of Cr.P.C. and even before the Learned Jurisdictional Court under Section 164 of Cr.P.C. do not point out towards the prima facie accusation or reasonable grounds pointing out towards accusation against the bail petitioner. Even the status report and the prosecution story, admits in clear terms that the entire allegations against the bail petitioner is a off shoot of the monetary claims inter se, the bail petitioner and the complainant [X], which is clear from the fact, that the bail petitioner had issued a legal notice against the complainant [X] on 01.09.2023, asking the complainant to repay the amounts which have been remitted to her, on her request on repayment basis from July, 2023 onwards. The case records as before this Court further reveal that the bail petitioner has even filed a suit for recovery [Civil Suit] Registration No.231 of 2023, on 16.10.2023 [Annexure P-2] whereby the bail petitioner had filed a suit for recovery of Rs.1,26,500/- [Rupees One Lakh Twenty Six Thousand Five Hundred] before the Learned Senior Civil Judge, Una, District Una, against the complainant [X], as referred to above. Even, the status report reveals that the bail petitioner [Jaswinder Singh] had filed a complaint before the Senior Superintendent of Police [Rupar] on 27.10.2023 [Annexure P-3] whereby the bail petitioner [Jaswinder Singh] at the instance of the aforesaid complainant [X] was called by the ASI Balram of Police Station Nangal Dam, asking the bail petitioner to confess before the police that he has received the amount of MACT claim of Rs.14,00,000/- [Rupees Fourteen Lakh] and that he would repay the same to the complainant [X] shortly. Since, nothing was done on the complaint of the bail petitioner, therefore, the bail petitioner approached the Punjab & Haryana High Court vide CRM-M-5672-2023 (O&M), which was decided on 09.11.2023 [Annexure P-5], whereby the Senior Superintendent of Police, District Rupnagar [Punjab], was directed to decide the representation, in accordance with law, in an expeditious manner. The things did not stop here. The things did not stop here. The bail petitioner was constrained to make a representation on 25.12.2023, before the Superintendent of Police, Una [H.P.] [Annexure P-6] stating therein that the complainant [X] is bent upon to harass and victimize the petitioner, for the reason, that the aforesaid complainant [X] was in relationship with a boy named [B] with whom, the complainant had indulging in unwarranted acts/relationship. In this background, the bail petitioner stated that the entire implication as contained in the FIR is just to implicate him falsely for the reason that the bail petitioner had objected to the relations of the complainant with the aforesaid boy, as referred to above. Further, so far as the monetary claims are concerned, the prosecution story does not carry weight, at this stage, for the reason that the alleged claim amount was received by the complainant from the Court at Rupnagar [Punjab] as per the complaint on 16.08.2023. On a perusal of the legal notice dated 01.09.2023 [Annexure P-1] reveals that the complainant [X] on her asking was remitted some payments from July, 2023 onwards which were unpaid by the complainant [X] for which the Civil Suit for Recovery was also filed on 16.10.2023. In the background of above facts, this Court is of the view that, the prima facie accusation and reasonable grounds, do not point out towards accusation against the bail petitioner and therefore, the bail petitioner is entitled to be enlarged on bail by making the interim orders as absolute. 12(iii). So far as the accusation under Section 354 of IPC is concerned, it is nowhere the case of the complainant [X] that either any assault or criminal force was used against the complainant [X] to outrage her modesty. The status report does not reveal any such material pointing out the accusation against the bail petitioner. In absence of any such material in the status report, the accusation against the bail petition is without merit. 12(iv). So far as the accusation under Section 354-A of IPC is concerned, once there is nothing on record to show that the bail petitioner had led to any physical contact or had any demands towards sexual favours or was involved in pornography or had made coloured remarks against the complainant [X]. 12(iv). So far as the accusation under Section 354-A of IPC is concerned, once there is nothing on record to show that the bail petitioner had led to any physical contact or had any demands towards sexual favours or was involved in pornography or had made coloured remarks against the complainant [X]. But the bail petitioner has been falsely implicated, for the reason that the bail petitioner had objected to the unwarranted acts of the complainant with another boy as mentioned in the representation given by the bail petitioner to the Superintendent of Police, Una, as referred to above. In the above background, this Court is of the considered view, that no prima facie case or reasonable grounds exists, pointing out any involvement or accusation against the bail petitioner [Jaswinder Singh]. 12(v). The status report does not indicates that the grant of bail shall lead to the cause of justice being thwarted by the bail petitioner. 12(vi). The plea for enlargement on bail, carries weight, for the reason, that the nature of accusation does not point out towards the bail petitioner. Even, the position or status of the bail petitioner with the complainant [X] was such that both are relatives but, once the bail petitioner objected to the relations of the complainant [X] with another boy which did not suit her or due to which complainant [X] felt offended, therefore, the entire allegation in the FIR is an off shoot of enmity, between bail petitioner and the complainant. 12(vii). The plea for enlargement of bail in favour of the bail petitioner, namely [Jaswinder Singh] carries weight, for the reason, that there is no likelihood of the bail petitioner tampering with the evidence or the witnesses in any manner. The bail petitioner being a permanent resident of Village Lidkot, Post Office Chulhari, Tehsil Birhu Kalan, District Una, is not likely to abscond from the proceedings or the trial, if any. 12(viii). The enlargement of the bail petitioner on bail will not obstruct the course of justice in any manner. The status report does not point out any such obstruction of justice or possibility or repetition of the offence being committed by the bail petitioner. Even the status report does not point out any accusation based on the statements under Sections 161 & 154 of Cr.P.C. against the bail petitioner. 13. The status report does not point out any such obstruction of justice or possibility or repetition of the offence being committed by the bail petitioner. Even the status report does not point out any accusation based on the statements under Sections 161 & 154 of Cr.P.C. against the bail petitioner. 13. In view of the above discussion, and in the peculiar facts of the instant case, the prayer of the petitioner [Jaswinder Singh] for enlargement on bail, is accepted; and the order dated 14.02.2024, is made absolute. 14. The observations made in this judgment shall not be construed in any manner as an indictive of findings, for the purposes of investigation and the proceedings thereafter, including the trial, if any against either of the parties herein. In aforesaid terms, the instant petition and all the pending miscellaneous application(s), if any, shall also stand disposed of, accordingly.