Research › Search › Judgment

Himachal Pradesh High Court · body

2025 DIGILAW 492 (HP)

Vijay Kumar v. State of Himachal Pradesh

2025-03-25

RAKESH KAINTHLA

body2025
JUDGMENT : ( Rakesh Kainthla, J.) The petitioner has filed the present petition for seeking pre-arrest bail. It has been asserted that FIR No. 7/2025 dated 01.02.2025 was registered against the petitioner for the commission of offences punishable under Sections 64, 324(4), 351(2) of Bhartiya Nyaya Sanhita (BNS) registered at Police Station Panchrukhi, District Kangra, H.P. As per the prosecution, the accused had entered into sexual relationship with the victim with a false promise to marry her. The victim had earlier made a complaint against the petitioner. FIR No.67 of 2021, dated 30.01.2021, was registered in Police Station Bharwana, Tehsil Palampur, District Kangra, for the commission of offences punishable under Sections 452, 354A and 323 of the Indian Penal Code, which was withdrawn by the victim. The FIR was quashed vide order dated 17.11.2021 passed in Cr.MP(M) No. 560 of 2021. The victim swore an affidavit asserting that she was residing in a live-in relationship with the petitioner. The petitioner and the victim have a son aged 3 years out of this relationship. The victim was aware of the marital status of the petitioner. The petitioner is innocent, and he has not committed any offence. The petitioner would abide by all the terms and conditions, which the Court may impose; hence, the petition. 2. The petition is opposed by filing a status report asserting that the victim made a complaint to the police asserting that she met the accused in the year 2018. The petitioner/accused told her that he was a bachelor and promised to marry her. He entered into a physical relationship with the victim. The victim became pregnant in the year 2022. The accused assured the victim that he would marry her soon. The victim gave birth to a child in the year 2022. She asked the accused to honour his promise and solemnise the marriage with her. The accused failed to honour his promise. The victim found in the year 2025 that the accused was already married, and he had made a false representation to the victim that he was a bachelor. The accused entered the room of the victim on 19.1.2025 at about 10:00 pm and broke the articles lying inside it. The police registered the FIR and conducted the investigation. The statement of the victim was also recorded by the learned Judicial Magistrate, First Class, Palampur. The accused entered the room of the victim on 19.1.2025 at about 10:00 pm and broke the articles lying inside it. The police registered the FIR and conducted the investigation. The statement of the victim was also recorded by the learned Judicial Magistrate, First Class, Palampur. The accused/petitioner maintained a physical relationship with the victim on a false promise to marry, hence, the status report. 3. I have heard Mr. Narender K. Guleria, learned counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General, for the respondent/State. 4. Mr. Narender K. Guleria, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. The victim was aware of the marital status of the petitioner. She had executed an affidavit during the previous proceedings that she was residing with the petitioner in a live-in relationship with her consent. There is no question of any rape; hence, he prayed that the present petition be allowed and the petitioner be released on pre-arrest bail. 5. Mr. Prashant Sen, learned Deputy Advocate General, for the respondent/State submitted that the petitioner is involved in the commission of a heinous offence. He represented to the victim that he was a bachelor whereas he is married. The petitioner had deceived the victim in this manner; therefore, he prayed that the present be dismissed. 6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. 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. 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. 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.” 8. This position was reiterated in Srikant Upadhyay v. State of Bihar, 2024 SCC OnLine SC 282, wherein it was held: “25. We have already held that the power to grant anticipatory bail is extraordinary. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of the imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion of the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to a miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases.” 9. It was held in Pratibha Manchanda v. State of Haryana, (2023) 8 SCC 181 : 2023 SCC OnLine SC 785 that the Courts should balance individual rights, public interest and fair investigation while considering an application for pre-arrest bail. It was observed: “21. The relief of anticipatory bail is aimed at safeguarding individual rights. It was held in Pratibha Manchanda v. State of Haryana, (2023) 8 SCC 181 : 2023 SCC OnLine SC 785 that the Courts should balance individual rights, public interest and fair investigation while considering an application for pre-arrest bail. It was observed: “21. The relief of anticipatory bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tightrope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each case becomes crucial to ensure a just outcome.” 10. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 11. The status report shows that the petitioner represented to the victim that he was a bachelor, whereas he was married on the date of the representation. This prima facie shows that the petitioner had made a false representation to the victim. He had promised to marry her when he knew that he could not have married her during the subsistence of the marriage. It is undisputed, even in the petition, that a child was born to the parties. Therefore, prima facie, it is established that the petitioner had obtained the victim’s consent by making a false representation, and the ingredients of the commission of the rape are prima facie made out in the present case , [ Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608 : 2019 SCC OnLine SC 1073 ]. 12. A heavy reliance was placed upon the affidavit executed by the victim in which she had stated that she and the petitioner were residing in a live-in relationship with their mutual consent. This does not show that the petitioner had not made a representation that he was unmarried. The victim never stated that she was not residing with the petitioner. A heavy reliance was placed upon the affidavit executed by the victim in which she had stated that she and the petitioner were residing in a live-in relationship with their mutual consent. This does not show that the petitioner had not made a representation that he was unmarried. The victim never stated that she was not residing with the petitioner. Her case is that her consent regarding the relationship was based upon a misrepresentation that the petitioner was unmarried and he would marry her. Therefore, this affidavit does not assist the petitioner in any manner whatsoever. 13. The petitioner had entered into a relationship with the victim by concealing his marriage and by making a false promise to marry her. There is a force in the submission of Mr. Prashant Sen, learned Deputy Advocate General, that the offence is heinous and the nature of the offence does not entitle the petitioner to the concession of pre-arrest bail. It was laid down by Hon’ble Supreme Court in X v. State of Maharashtra, 2023 SCC OnLine SC 279, that pre-arrest bail should not be granted to a person involved in the commission of a rape. It was observed: “33. 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-à-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 6 th 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 6 th September 2022 and the Medico- Legal Report of the doctor who had examined the appellant/prosecutrix on 8 th 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. 14. Therefore, the petitioner is not entitled to the concession of pre-arrest bail. 15. Consequently, the present petition fails and the same is dismissed. 16. The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the case's merits.