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2025 DIGILAW 798 (HP)

Kamla Devi v. State of Himachal Pradesh

2025-04-24

RAKESH KAINTHLA

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JUDGMENT : Rakesh Kainthla, J. Since both these bail applications emanate from a common F.I.R.; hence, they are taken up together for disposal by way of a common judgment. 2. The petitioners have filed the present petitions seeking pre-arrest bail. It has been asserted that F.I.R. No. 14 of 2025, dated 21.03.2025, was registered at Police Station Shilai, District Simour, H.P. for the commission of offences punishable under Sections 64, 89, 238 of Bhartiya Nayaya Sanhita, 2023 (BNS). As per the prosecution, the victim and petitioner Ravinder Singh were in a relationship with each other. Talks of their marriage were going on between their families. The victim got pregnant, and she was permitted to reside with the petitioner, Ravinder Singh. One day, petitioner Kamla Devi mixed something in her food, and the victim aborted her fetus. The allegations in the F.I.R. are false. The petitioners are apprehensive about their arrest. They are law-abiding citizens. They would join the investigation as and when directed to do so. The petitioners would abide by all the terms and conditions which the Court may impose upon them. Hence, the present petitions. 3. The petitions are opposed by filing a status report asserting that the victim used to talk to petitioner, Ravinder Singh, for about two years before reporting the matter to the police. Petitioner Ravinder Singh promised to marry the victim. He celebrated his birthday on 07.01.2025 and visited the victim’s house. He told the victim that they were about to marry and had forced sexual relations with her. The victim conducted the pregnancy test, and the result was found to be positive. The victim told petitioner, Ravinder Singh, about this fact. The petitioner told her that he did not care, and the baby belonged to the victim. The victim narrated this incident to her mother, and her father called Ravinder Singh’s father. He (the victim’s father) threatened to report the matter to the police. An affidavit of marriage was executed by the petitioner, Ravinder Singh. She went to the house of petitioners. Her condition deteriorated on 16.03.2025, and she started bleeding. She narrated this fact to petitioner Kamla Devi, who told her to go inside the room. The victim aborted the foetus, and petitioner Kamla Devi carried the foetus with her. The police registered the F.I.R. and conducted the investigation. The police seized the material objects. Her condition deteriorated on 16.03.2025, and she started bleeding. She narrated this fact to petitioner Kamla Devi, who told her to go inside the room. The victim aborted the foetus, and petitioner Kamla Devi carried the foetus with her. The police registered the F.I.R. and conducted the investigation. The police seized the material objects. The victim was subjected to medical examination, and the Medical Officer reported that the victim had aborted two weeks before her examination. The petitioners are yet to be interrogated, and the product of conception is to be traced. Hence, the status report. 4. I have heard Mr. Tek Chand, learned counsel for the petitioner(s) in both the petitions and Mr. Jitender K. Sharma, learned Additional Advocate General for the respondents/State,in both the petitions. 5. Mr. Tek Chand, learned counsel for the petitioners, submitted that the petitioners are innocent and they were falsely implicated. The allegations in the F.I.R. do not constitute the commission of a cognizable offence. It is a case of a relationship turned sour. The F.I.R. shows that the victim was taken by the petitioners to their house, and there was no false promise. The petitioner would abide by all the terms and conditions which the Court may impose. Hence, it was prayed that the present petitions be allowed and the petitioners be released on bail. 6. Mr. Jitender K. Sharma, learned Additional Advocate General, submitted that petitioner -Ravinder Singh, had raped the victim, and the petitioner, Kamla Devi, had administered something to her due to which she aborted her fetus. The police are to interrogate the petitioners. Therefore, he prayed that the present petitions be dismissed. 7. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 8. It was laid down by the Hon’ble Supreme Court in P.Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24 : (2019) 3 SCC (Cri) 509: 2019 SCC OnLine SC 1143 that the power of pre-arrest bail is extraordinary and should be exercised sparingly. It was observed: “69. Ordinarily, arrest is a part of the procedure of the investigation to secure not only the presence of the accused but also 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. It was observed: “69. Ordinarily, arrest is a part of the procedure of the investigation to secure not only the presence of the accused but also 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 are considered to decide whether it is a fit case for the 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 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.” 10. 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.” 10. 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.” 11. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 12. Perusal of the status report shows that the petitioner, Ravinder Singh, was in touch with the victim for two years. He visited the victim’s house and raped her on 07.01.2025. The victim became pregnant, and when her father threatened to lodge the F.I.R.,she was taken by the petitioners to their home, where something was administered to her, and she aborted the fetus. These allegations, prima facie, show the commission of rape and causing miscarriage of the pregnant woman. The victim was only 19 years old. The petitioner-Ravinder Singh, raped her, and when the victim’s father threatened to lodge a police report, he took her to his home where her foetus was got aborted. This shows that the fetus was aborted after due deliberations. Keeping in view the age of the victim, the offence is grave. 13. It was submitted that the allegations in the F.I.R are false and highly improbable because the victim could not have been raped in her home. This shows that the fetus was aborted after due deliberations. Keeping in view the age of the victim, the offence is grave. 13. It was submitted that the allegations in the F.I.R are false and highly improbable because the victim could not have been raped in her home. The investigation is continuing, and it is premature to say anything about the same. There is nothing on record to show that the victim had any family members in her home on 07.01.2025. Hence, the plea that the incident is improbable cannot be accepted at this stage. 14. 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 either of the impugned orders. The nature and gravity of the alleged offence have 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 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 the respondent No. 2/accused for granting him anticipatory bail. 15. Learned Additional Advocate General submitted that custodial interrogation of the petitioners is required, and the fetus is to be recovered to match the DNA with the petitioner Ravinder Singh. In our opinion, these factors ought to have dissuaded the High Court from exercising its discretion in favour of the respondent No. 2/accused for granting him anticipatory bail. 15. Learned Additional Advocate General submitted that custodial interrogation of the petitioners is required, and the fetus is to be recovered to match the DNA with the petitioner Ravinder Singh. It was laid down by the Hon’ble Supreme Court in State Versus Anil Sharma (1997) 7 SCC 187 that where custodial interrogation is required, pre-arrest bail should not be granted. It was observed:- “6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation- oriented than questioning a suspect who is well- ensconced with a favourable order under Section 438 of the Code. In a case like this, effective interrogation of a suspected person is of tremendous advantage in disintering much useful information and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often, interrogation in such a condition would be reduced to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible Police Officers would responsibly conduct themselves and that those entrusted with the task of disinterring offences would not conduct themselves as offender” 16. A similar view was taken by the Delhi High Court in Mukesh Khurana v. State (NCT of Delhi), 2022 SCC OnLine Del 1032, wherein it was observed: - “13. One of the significant factors in determining this question would be the need for custodial interrogation. Without a doubt, custodial interrogation is more effective to question a suspect. The cocoon of protection afforded by a bail order insulates the suspect, and he could thwart interrogation, reducing it to futile rituals. But it must be also kept in mind that while interrogation of a suspect is one of the basic and effective methods of crime solving, the liberty of an individual also needs to be balanced out.” 17. It was held in P Chidambaram (supra) that the grant of pre-arrest bail may hamper the investigation. But it must be also kept in mind that while interrogation of a suspect is one of the basic and effective methods of crime solving, the liberty of an individual also needs to be balanced out.” 17. It was held in P Chidambaram (supra) that the grant of pre-arrest bail may hamper the investigation. It was observed: “83. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting useful information, and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences, would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail.” 18. In view of the above, the present petitions fail and the same are dismissed. 19. The observation made hereinabove shall remain confined to the disposal of the petitions and will have no bearing whatsoever on the merits of the case.