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2025 DIGILAW 497 (HP)

S v. State of Himachal Pradesh

2025-03-25

RAKESH KAINTHLA

body2025
JUDGMENT : (Rakesh Kainthla, J.) The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested vide F.I.R. No. 57 of 2024, dated 07.10.2024, for the commission of offences punishable under Sections 49 and 64 of Bhartiya Nyaya Sanhita (in short ‘BNS’) registered with Police Station Khudiyan, District Kangra, H.P. The police have filed the charge sheet before the Court on 20.02.2025 and the matter was listed on 15.03.2025 for office report. The petitioner has no concern with the commission of the crime. The petitioner is in custody for five months. No fruitful purpose would be served by detaining the petitioner in custody. 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 (name being withheld to protect her identity) is the wife of the petitioner. She had gone to the rented room of the petitioner in village Theel on 05.10.2024. Suresh Chand, a friend of her husband was also residing in the same room. The petitioner told the victim that Suresh ties the sacred thread. Suresh told the petitioner that the victim would have to remove her clothes. The petitioner asked the victim to remove her clothes. She refused but the petitioner forcibly removed her clothes. The petitioner had physical relations with the victim and thereafter he told his friend to maintain physical relations with the victim. She refused but Suresh raped her. She narrated the incident to her mother. She was taken to her matrimonial home. She narrated the incident to her sister-in-law, who accompanied her to the police station. The police registered the FIR and conducted the investigation. The statement of the victim was recorded before the learned Judicial Magistrate, First Class, Dehra. The recoveries were effected at the instance of the petitioner and Suresh Chand. As per the report of analysis, the DNA of Suresh Kumar matched the DNA found in the vaginal swab and the DNA of Suresh Chand was found on the salwar of the victim and the bed sheet. The challan was filed before the Court and the matter was listed on 15.03.2025 for the supply of supplementary challan. The petitioner has committed a heinous crime. He would intimidate the victim in case of his release on bail; hence, the status report. The challan was filed before the Court and the matter was listed on 15.03.2025 for the supply of supplementary challan. The petitioner has committed a heinous crime. He would intimidate the victim in case of his release on bail; hence, the status report. 3. I have heard Mr Rakesh Kumar Chaudhary and Mr Panku Chaudhary, learned counsel for the petitioner and Mr Ajit Sharma, learned Deputy Advocate General, for the respondent/State. 4. Mr. Rakesh Kumar Chaudhary, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. He is the husband of the victim and cannot be held liable for the commission of the rape. The affidavit has been sworn by the victim, which shows that the allegations made by her are false. Hence, he prayed that the present petition be allowed and the petitioner be released on bail. 5. Mr Ajit Sharma, learned Deputy Advocate General, for the respondent/State submitted that the petitioner had abetted the commission of the rape of the victim by Suresh Chand. The report of analysis shows that the DNA of the petitioner and Suresh Chand were found in the vaginal swab, salwar of the victim and bed sheet, which corroborates the version of the victim regarding rape. Therefore, he prayed that the present petition be dismissed. 6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. The parameters for granting bail were considered by the Hon’ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC 768 : 2024 SCC OnLine SC 974, wherein it was observed as under page 783: - “Relevant parameters for granting bail 26. While considering as to whether bail ought to be granted in a matter involving a serious criminal offence, the Court must consider relevant factors like the nature of the accusations made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the role attributed to the accused, the criminal antecedents of the accused, the probability of tampering of the witnesses and repeating the offence, if the accused are released on bail, the likelihood of the accused being unavailable in the event bail is granted, the possibility of obstructing the proceedings and evading the courts of justice and the overall desirability of releasing the accused on bail. [Refer: Chaman Lal v. State of U.P. [ Chaman Lal v. State of U.P ., ( 2004) 7 SCC 525: 2004 SCC (Cri) 1974]; Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 : 2004 SCC (Cri) 1977]; Masroor v. State of U.P. [Masroor v. State of U.P., (2009) 14 SCC 286 : (2010) 1 SCC (Cri) 1368]; Prasanta Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765]; Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527]; Anil Kumar Yadav v. State (NCT of Delhi)[Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129 : (2018) 3 SCC (Cri) 425]; Mahipal v. Rajesh Kumar [Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 : (2020) 1 SCC (Cri) 558] . 8. This position was reiterated in Ramratan v. State of M.P., 2024 SCC OnLine SC 3068, wherein it was observed as under: - “12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin Lokhandwalla v. State of Maharastra (2020) 10 SCC 77 observed that though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. The relevant observations are extracted herein below: “14. The language of Section 437(3) CrPC, which uses the expression “any condition … otherwise in the interest of justice” has been construed in several decisions of this Court. The relevant observations are extracted herein below: “14. The language of Section 437(3) CrPC, which uses the expression “any condition … otherwise in the interest of justice” has been construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail.” (Emphasis supplied) 13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570 this Court discussed the scope of the discretion of the Court to impose “any condition” on the grant of bail and observed in the following terms: — “15. The words “any condition” used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such extreme condition to be imposed.” (Emphasis supplied) 14. This Court, in Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779 , laid down the factors to be taken into consideration while deciding the bail application and observed: “ 4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial.” (Emphasis supplied) 9. This position was reiterated in Shabeen Ahmed versus State of U.P, 2025 SCC Online SC 479. 10. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 11. The victim has specifically stated in the FIR and the statement on oath that the petitioner had asked his friend to maintain a sexual relationship with her. This is duly corroborated by the report of analysis, wherein the DNA of the petitioner and Suresh Chand were found. Therefore, there is sufficient material on record to connect Suresh Chand with the commission of the rape. 12. The petitioner had asked Suresh Chand to maintain a sexual relationship with the victim. The victim refused and Suresh Chand raped her pursuant to the suggestion made by the petitioner. The petitioner had not stopped him when the victim protested; hence, prima facie, the petitioner is guilty of abetting the commission of rape by Suresh Chand. 13. The petitioner is involved in the commission of a heinous crime. He being the husband of the victim was bound to protect her. Instead of doing so, he encouraged his friend to rape her. Such an offence cannot be considered lightly. 13. The petitioner is involved in the commission of a heinous crime. He being the husband of the victim was bound to protect her. Instead of doing so, he encouraged his friend to rape her. Such an offence cannot be considered lightly. Keeping in view the nature of the offence, the petitioner cannot be released on bail. 14. It was submitted that the victim has sworn the affidavit in support of the bail petition, which shows that she has no grievance against the petitioner. This submission is not acceptable. The victim made a categoric statement that she was raped despite her protest. Only the affidavit is signed by the victim and the petition is not signed by her, therefore, not much can be made out of the fact that she has signed the affidavit. 15. The status report shows that the victim is residing in her matrimonial home, therefore, there is a reasonable possibility of the petitioner influencing her in case of his release on bail. The statement of the victim has not been recorded so far and releasing the petitioner on bail will be detrimental to the fair trial. 16. It was submitted that there is a delay in the progress of the trial and the petitioner is entitled to bail on this ground. This submission is not acceptable. The FIR was registered on 07.10.2024. The charge sheet has been filed and the matter is listed for supply of the supplementary challan documents on 15.03.2025. The petitioner has not filed the copies of the order sheets to show that the delay is attributable to the prosecution and not to him. In the absence of the order sheets, the petitioner cannot take advantage of any delay. 17. In view of the above, the petitioner cannot be released on bail at this stage. Consequently, the present petition fails and the same is dismissed. 18. The observations made hereinbefore shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.