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2025 DIGILAW 1069 (HP)

Saood v. State of Himachal Pradesh

2025-05-20

VIRENDER SINGH

body2025
JUDGMENT : Virender Singh, J. 1. Applicant Saood, apprehending his arrest, in case FIR No.20 of 2025, dated 29.03.2025, registered, under Sections 64(1), 69, 140(3), 238, 127(2), 127(4), 351(2), 3(5) of the Bharatiya Nyaya Sanhita, 2023 (hereinafter referred to as ‘the BNS’), has filed the present application, under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’), with a prayer to direct the Police/Investigating Officer of Police Station Nerwa, District Shimla, H.P., to release him on bail, in the event of his arrest. 2. According to the applicant, the alleged levelled against him are false and frivolous and motivated with an ulterior motive to harass and humiliate him. 3. As per the applicant, he and the prosecutrix had been in consensual live-in relationship for considerable time. The said relationship was on mutual consent, love and affection. In this regard, the applicant has relied upon the agreement, which allegedly had taken place between him and the prosecutrix. 4. Asserting the fact that the applicant and prosecutrix were in live-in relationship, as such, are well known to their family members, friends and neighbours. 5. All these facts have been pleaded to demonstrate that the allegations with regard to the commission of offence punishable under Sections 64, 137(2) and 127(2) of the BNS are baseless. 6. The applicant has given certain undertakings, for which, he is ready to abide by, in case, any direction is issued, under Section 482 of the BNSS. 7. On the basis of the above facts, a prayer has been made to allow the application. 8. When put to notice, the police has filed the status report, disclosing therein, that 29.03.2025, the prosecutrix, appeared before the police and moved a complaint, mentioning therein, that she had performed Nikah with Safroo, son of Alisher, about 12 years ago. 8.1. Out of the said wedlock, they have been blessed with one son, who is aged about 10 years. After their marriage, her husband allegedly started quarreling with her and used to beat her. He has also failed to give maintenance. 8.2. 8.1. Out of the said wedlock, they have been blessed with one son, who is aged about 10 years. After their marriage, her husband allegedly started quarreling with her and used to beat her. He has also failed to give maintenance. 8.2. In the year 2024, the prosecutrix received a telephonic call on her mobile number 85447-68240 from mobile number 96137-88000, and the caller disclosed that he is Saood (applicant) and when the prosecutrix inquired the reasons for calling her, then applicant allegedly told her that he knew her, upon which, the prosecutrix requested him not to call in future. Thereafter, number of times, he made calls and they started talking to each other. 8.3. On 30.10.2024, the prosecutrix was allegedly thrown out from her matrimonial home and on 31.10.2024, she had gone to Nerwa market, where, her sister Hasina met her. In the meanwhile, she received a call of Saood (applicant), who made efforts to talk to her, however, the prosecutrix refused to talk to him. 8.4. Thereafter, when, the prosecutrix was proceeding towards her parental house, along with her sister, near ITI, applicant met her and made her to sit in the car, upon which, the prosecutrix requested her sister to go back, as, she is going to her parental house. In the car, another person was also there, who had disclosed his name as Mujaffer. 8.5. According to the prosecutrix, applicant, instead of taking her to Dwara, threatened her that in case, she will raise any noise, he will throw her out of the car, upon which, the prosecutrix got frightened and remained silent. Thereafter, he took her forcibly to his home at Faizpur and pursuaded her that he will marry her, after getting her divorced from Safroo. Saood (applicant) confined her in the room. 8.6. During night time, applicant Saood forcibly tried to ravish her, upon which, the prosecutrix told him to first perform Nikah with her, but, no heed was paid by the applicant and she was raped. Thereafter, applicant threatened her that he will finish her family, in case, she would disclose this fact to anyone. 8.7. Thereafter, the applicant repeatedly raped her for about 8 months. During that period, she remained in his house. She was not permitted to talk with anyone as her mobile phone was kept by Saood (applicant). Thereafter, applicant threatened her that he will finish her family, in case, she would disclose this fact to anyone. 8.7. Thereafter, the applicant repeatedly raped her for about 8 months. During that period, she remained in his house. She was not permitted to talk with anyone as her mobile phone was kept by Saood (applicant). Thereafter, the prosecutrix had won the confidence of the applicant and on 1.3.2025, when Saood (applicant) was not present in his house and his parents were busy, then, she fled away from there and reached Dhaula Kuan, where her sister was married, to whom, she had disclosed the entire incident, who had further told this to her father. 8.8. Thereafter, her father came to Dhaula Kuan and took her to his house. Subsequently, applicant-Saood, allegedly refused to solemnize marriage with her. In addition to this, she has also disclosed that she had been kept confined in the house. 9. On the basis of the above facts, the police has registered the FIR and the criminal machinery swung into motion. 10. During investigation, on 29.03.2025, the prosecutrix was medico-legally examined and on 30.3.2025, the spot was visited, from where, the applicant forcibly made her to sit in the car and spot map was prepared. Spot was videographed. 11. Thereafter, statements of the witnesses were recorded, under Section 180 of the BNSS. On 1.4.2025, the prosecutrix was produced before the learned Judicial Magistrate First Class Chopal, where, her statement was recorded, under Section 183 BNSS. 12. On 3.4.2025, the prosecutrix identified the room in the house of applicant-Saood, where, she had allegedly been raped, from where, a bed sheet was also taken into possession. In the status report, which has been filed on 9.4.2025, it has been mentioned that the vehicle used in the alleged crime is yet to be recovered. 13. After perusing the said status report, interim protection was given to the applicant, vide order dated 09.04.2025 and the case was ordered to be taken up on 30.4.2025. On 30.4.2025, police filed the supplementary status report, disclosing therein, that the applicant was associated in the investigation and on 11.4.2025, vehicle allegedly used in the crime was taken into possession, registration number of which is HR11E 8550. Accused Mujaffar was also associated in the investigation and finding the involvement of Mujaffar, case, under Section 140(3), 127(2), 3(5) of the BNS, was registered against him. 14. Accused Mujaffar was also associated in the investigation and finding the involvement of Mujaffar, case, under Section 140(3), 127(2), 3(5) of the BNS, was registered against him. 14. On 16.4.2025, medico-legal examination of the applicant was got conducted and the physical evidence, including the blood samples, were taken into possession and were sent to SFSL, Junga. On 17.4.2025, the vehicle, which was taken into possession, was got identified from the prosecutrix. 15. It is the further case of the police that on the statement of prosecutrix, it was found that the prosecutrix belongs to Scheduled Tribe category, as such, Sections 3(1)w(i), 3(2)(v) of SC&ST Act was added. Thereafter, further investigation was entrusted to SDPO Chopal and the requisite correspondence was made to the concerned revenue officer to provide caste certificate of the complainant and applicant. 16. In the status report filed on 30.4.2025, it has been apprehended that in case the interim order is made absolute, the applicant may coerce the witnesses and may not be available for trial, as he is resident of the adjoining State. 17. Thereafter, the matter was adjourned to 8.5.2025. On that date, the I.O. sought time to file supplementary status report and the matter was adjourned for 15.5.2025. 18. On 15.5.2025, supplementary status report was filed, disclosing therein that the Tehsildar Nerwa has submitted the letter, disclosing therein, that as per the revenue record, the name of the father of the prosecutrix is Sadiq, son of Nathiya and marriage of prosecutrix was solemnized with Safroo. 19. As per the report of the Tehsil Welfare Officer Chopal, the family of the prosecutrix does not fall in the definition of Scheduled Tribe, as such, the provisions of Sections 3(1)w(i) and 3(2)(v) of SC&ST Act, were deleted.However, considering the fact that the applicant raped her for 3-4 months and thereafter refused to solemnize marriage with her, as such, Section 69 of the BNS was added. 20. On the basis of the apprehensions, which have been mentioned in the status report filed on 30.4.2025, a prayer has been made to dismiss the application. 21. In this case, the accused allegedly had relied upon the agreement of live-in relationship, allegedly executed between him and the prosecutrix. Interestingly, there is no averment with regard to the said document in the status report filed by the police, in this case. 22. 21. In this case, the accused allegedly had relied upon the agreement of live-in relationship, allegedly executed between him and the prosecutrix. Interestingly, there is no averment with regard to the said document in the status report filed by the police, in this case. 22. Considering the fact that the police is not able to make out a case for custodial interrogation, in this case, the bail cannot be rejected only as a matter of punishment, as punishment can only be inflicted after the trial. 23. As per the case set up by the prosecutrix, when Saood, took her to his native place, and when tried to have physical relations with her, then, the prosecutrix objected to, on the ground, that firstly solemnize Nikah with her and then proceed further. This fact itself probabilized the stand of the applicant with regard to their alleged consensual relationship, otherwise, no married lady would think to perform Nikah, without obtaining the divorce from her husband. 24. Even otherwise, the prosecutrix had allegedly been taken away by the applicant to his native place on 31.10.2024 and thereafter, the FIR, in question, was registered on 29.3.2025, almost after five months from the alleged abduction/confining her allegedly in the house of the applicant. 25. Although, the said fact would be explained by the prosecution during the trial, but, at the time of deciding the question involved in the present case, the said fact cannot be ignored in this case, as nothing is on record to show that any efforts were made by the family members, or, even by her husband, to trace her out for such a long time. 26. Moreover, at the time of deciding the bail application, detailed discussions about the case of the prosecution is not justifiable, as, the same would cause prejudice to the case of the prosecution, as well as, that of the accused. 27. Even otherwise, the allegations, which have been levelled against the applicant, in the complaint, will be proved, during the trial. 28. Considering the totality of circumstances, this Court is of the view that the interim protection, granted to the applicant, is required to be made absolute, as, no useful purpose would be served by dismissing the present application, which would result into the judicial custody of the applicant. 29. Considering all these facts, the interim order dated 11.03.2025, passed by this Court, is hereby made absolute. 29. Considering all these facts, the interim order dated 11.03.2025, passed by this Court, is hereby made absolute. Therefore, it is ordered that the applicant be released on bail, in the event of his arrest, in Case FIR No.20 of 2025, dated 29.03.2025, registered with Police Station Nerwa, District Shimla, H.P., under Sections 64(1), 69, 140(3), 238, 127(2), 127(4), 351(2), 3(5) of the BNS, on his furnishing personal bond, in the sum of Rs. 50,000/- with one surety of the like amount, to the satisfaction of the Investigating Officer. This order, however, shall be subject to the following conditions : a) That the applicant will join the investigation of the case, as and when, called for, by the Investigating Officer, in accordance with law; b) That the applicant will not leave India, without prior permission of the Court; c) That the applicant will 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/her from disclosing such facts to the Investigating Officer or the Court; d) That the applicant shall regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so seek exemption from appearance by filing appropriate application. 30. Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present application. 31. The applicant is directed to move regular bail application, when charge sheet will be filed in the Competent Court of Law. 32. It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found violated by the applicant.