Karan Kumar vs State Of H.P
2021 Latest Caselaw 4003 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                 ON THE 19TH DAY OF AUGUST, 2021




                                                              .

                                 BEFORE

             HON'BLE MR. JUSTICE VIVEK SINGH THAKUR





          CRIMINAL MISC. PETITION (MAIN) NO.1363 OF 2021

    BETWEEN





    KARAN KUMAR
    S/O SHRI SURESH KUMAR,
    VILLAGE KARIAN,
    POST OFFICE BHADIAN-KOTHI,
    TEHSIL & DISTRICT CHAMBA,

    HIMACHAL PRADESH.                                    ...PETITIONER

    (BY SHRI ASHWANI KAUNDAL & SHRI RAHUL THAKUR,
    ADVOCATES)

    AND



    STATE OF H.P.                                     ...RESPONDENT

    (BY SHRI YUDHVIR SINGH, DEPUTY ADVOCATE GENERAL)




    Whether approved for reporting? Yes.





           This petition coming on for orders this day, the Court passed
    the following:





                             JUDGMENT

Petitioner has approached this Court, seeking

anticipatory bail, under Section 438 of the Code of Criminal

Procedure (for short 'Cr.PC'), in case FIR No.25 of 2021, dated

1.4.2021, registered under Sections 363, 376(2) of the Indian

Penal Code (for short 'IPC') and Section 6 of Prevention of

CRMPM No.1363/2021 ...2...

Children from Sexual Offences Act (for short 'POCSO Act') in

Police Station Gohar, District Mandi, Himachal Pradesh.

2. Status Report stands filed. Record alongwith Call

.

Detail Record (CDR) of petitioner was also produced, which was

perused on 27.7.2021. Learned Deputy Advocate General was

directed to retain photocopies of the relevant record, which

have been made available to the Court.

3. As per Status Report, father of victim had

approached Police Station Gohar, District Mandi, Himachal

Pradesh, submitting a complaint, stating therein that his

daughter (victim), a student of Shastri College Sundernagar (1st

year), had been at home for holidays in her college. On

31.3.2021, at about 11.30 a.m., she left the home, after taking

permission from him, to bring some personal articles, but she

did not come back. Search for her did not yield any result till

1.4.2021 nor any information could be received about her.

Date of Birth of victim was disclosed as 31.5.2003. Suspecting

that someone had kidnapped his daughter, prayer for action

was made.

4. On the basis of aforesaid complaint, FIR was

registered and on the basis CCTV Camera footage and CDR,

persons in touch with the victim were also interrogated. During

investigation, a post was received in the home of family of

victim from Hansi (Haryana) and police had also searched for

the victim at that place. Ultimately, after receiving a call from

CRMPM No.1363/2021 ...3...

victim made to her family members on 13.7.2021, on

14.7.2021, the victim was recovered from the house of co-

accused Sagar in Saharanpur and handed over to her mother.

.

5. As per Status Report, co-accused Sagar was

brought to Mandi on 15.7.2021 and on the basis of evidence

available against him, he was arrested on that day.

6. On 16.7.2021, statement of victim was recorded

before Judicial Magistrate 1st Class, Gohar, District Mandi,

Himachal Pradesh, under Section 164 Cr.PC, wherein the victim

had disclosed that since the year 2020, she had been talking

with one boy namely Karan (petitioner), belonging to Chamba

but serving at Solan, who had come in her contact through

FACEBOOK message sent by him. Though she had been

refusing to meet him, but Karan had forced her. Thereafter,

she had started meeting Karan Kumar occasionally. In January

2021, they had met at Sundernagar Bus Stand and thereafter

had gone to a hotel, where Karan had violated her person so

many times and had also photographed and videographed her

obscene and vulgar pictures/videos forcibly. He had also taken

password of her FACEBOOK account and had been threatening

all her friends to not to call her and had been black-mailing her

also by asking her not to talk with anybody, with threat

otherwise to viral her photos and videos. She had asked Karan

to marry her but Karan had replied that she was characterless

and, therefore, he could not marry her. At that time, she was

CRMPM No.1363/2021 ...4...

not knowing that Karan was already married. He was black-

mailing her continuously. On 29.3.2021, petitioner Karan was

mounting pressure on her to visit Solan to meet him, failing

.

which he was threatening to send the photographs and videos

to her family members. She was frightened too much and,

therefore, on 31.3.2021, she had left home by telling her

father that she was going to Chail-chowk. By the time she

reached Mandi, Karan had communicated her that he would not

like to meet her and asked her to go back. It caused mental

tension to her and she boarded a Bus for Haridwar. She was

not having enough money. When she reached Chandigarh, she

was weeping bitterly. By taking advantage of her state of

mind, co-accused Sagar approached her in the Bus and asked

what had happened, but despite inquiry by Sagar repeatedly

she had stated that nothing had happened. She was short of

money and out of anger she had also broken the SIM of her

mobile and Sagar was asking her to accompany him. In such a

situation, she, under fear, was not able to take decision and,

thus, she accompanied Sagar, who had taken her to his home

at Saharanpur and locked her. In the house, mother and

brother of Sagar were there. Sagar had taken her phone and

violated her forcibly. Once she had tried to run away,

whereupon Sagar had beaten her and performed marriage with

her forcibly. After marriage, one day on 13.7.2021, when there

was no one at home, she had contacted her mother through

CRMPM No.1363/2021 ...5...

mobile phone of Sagar and had disclosed about her

whereabouts. Thereafter, police had reached there on

14.7.2021 and she was brought back. Lastly, she has stated

.

that Karan had been black-mailing her and extending threats to

her family members continuously and Sagar has also done

wrong to her.

7. On 15.7.2021, victim was sent for medical

examination to the hospital, but she had refused to undergo

medical check-up and had given in writing to that effect on the

Medico-Legal Certificate (MLC) in the presence of Medical

Officer. However, on 16.7.2021, victim had extended her

consent for her medical check-up and, accordingly, she was

medically examined in Civil Hospital Gohar.

8. During investigation, police has also taken in

possession extract of register from River View Guest House,

Sundernagar, which indicates that on 9.2.2021, petitioner

Karan had stayed in that hotel from 9.2.2021 (2.30 p.m.) to

10.2.2021 (10.30 a.m.) with occupancy of two persons.

9. CDR of petitioner has also been produced on

record, which indicates that during the period of 1.3.2021 to

31.3.2021, the petitioner had contacted the victim as many as

221 times through phone calls and messages. The timing of

calls/messages is ranging from 1.26 am (midnight) to 11.47

(midnight).

CRMPM No.1363/2021 ...6...

10. Learned counsel for the petitioner has submitted

that the victim and her mother have sworn-in affidavits before

Magistrate 1st Class, stating therein that mental state of the

.

victim was not in order since last one year and during this

period she used to talk with people on social media and

frequency of her talks with Karan was slightly more than others

which caused some attraction between them, and on 9.2.2021

when Karan Kumar had stayed in a hotel at Sunderngar, she

had gone there to meet him at about 2/3 O'clock and had

returned at about 4 O'clock, and during this period no physical

relation had developed. It has further been stated in the

affidavits that after some time mental state of the victim

deteriorated, due to which she left the home and during this, in

the bus, she met with a person, who took her to Saharanpur,

and when her mental state became somewhat normal she

called her mother from the mobile phone of that boy and the

police brought her from there and produced her in the Court.

In the affidavits, it is further stated that victim was upset too

much, due to which she had made a statement against Karan in

the Court that he had violated her person, but nothing had

happened between them, only friendship talks were there and

thereafter they neither met nor any talks had taken place.

11. It is further submitted by the learned counsel for

the petitioner that the victim and her mother have themselves

CRMPM No.1363/2021 ...7...

stated in the affidavits that the petitioner had done nothing

with the victim and the victim had made the statement

because of her ill mental state. He has further submitted that

.

since the 25 years old petitioner, serving the Police

Department, is a married person having children, and resident

of State of Himachal Pradesh, is not likely to flee away from

justice, and that in case he is ordered to be released on bail he

is ready to abide by any condition, which may be imposed upon

him.

12. Learned Deputy Advocate General has submitted

that petitioner Karan had first allured the minor victim,

developed intimate relations and then compelled her to leave

her home and, thereafter, refused to meet her, leaving no

option to her, except to board a Bus for Haridwar, whereafter

she became prey of co-accused Sagar and landed at

Saharanpur and suffered at the hands of Sagar and episode

suffered by victim is the result of omission and commission of

the petitioner. He further submits that the prosecution has not

been able to obtain the FACEBOOK account and contents

thereof, for non-cooperation of the petitioner by not disclosing

the same to the Investigating Officer. He has also submitted

that the petitioner and, therefore, does not deserve any

leniency or benefit of provisions of Section 438 Cr.PC, as it is

not a case where ex-facie no case is made out against the

petitioner or the material placed on record indicates that the

CRMPM No.1363/2021 ...8...

petitioner has been falsely implicated in the case and further

that the affidavits obtained from the victim and her mother,

during investigation and during the period when petitioner is on

.

interim bail, are not relevant at this stage as investigation is

going on and it indicates that the petitioner is able to mount

pressure on the victim and her family to tamper with the

evidence.

13. Undoubtedly, as pleaded by learned counsel for the

petitioner, bail is rule and jail is exception. But, at the same

time, this rule does not mean that in every case bail is to be

granted in all eventualities. The Supreme Court, in its various

pronouncements, as also referred by this Court in State of

Sandeep v. State of Himachal Pradesh, reported in 2019(1)

Shim.LC 263, has culled out various factors and parameters to

be taken into consideration at the time of deciding the bail

applications, which also include denial of bail based on those

factors and principles. The general rule 'bail but not jail' cannot

be used as a weapon to render the provisions, empowering the

Court to reject the bail, redundant, and/or as a guiding factor to

enlarge an accused on bail, in every case.

14. The Supreme Court has considered the right to pre-

arrest bail, provided under Section 438 Cr.PC, and factors and

parameters to be taken into consideration by the Courts, while

accepting or rejecting a bail petition under Section 438 Cr.PC,

in numerous cases, including Gurbaksh Singh Sibbia & others v.

CRMPM No.1363/2021 ...9...

State of Punjab, (1980) 2 SCC 565; Savitri Agarwal and others v.

State of Maharashtra and another, (2009) 8 SCC 325; Siddharam

Satlingappa Mhetre v. State of Maharashtra and others, (2011) 1

.

SCC 694; Bhadresh Bipinbhai Sheth v. State of Gujarat and

another, (2016) 1 SCC 152; Special Leave Petition (Criminal)

Nos.7281 of 2017 and 7282 of 2017, decided on 19.1.2020,

titled as Sushila Aggarwal & Others v. State (NCT of Delhi) &

another, (2020) 5 SCC 1 ; Fekan Yadav v. Satendr Yadav alias

Boss Yadav alias Satendra Kumar and others, (2017) 16 SCC

775; Prem Giri v. State of Rajasthan, (2018) 6 SCC 571; and

Prem Giri v. State of Rajasthan, (2018) 12 SCC 20}, which have

been referred in Freed and other connected matters v. State,

reported in 2020(4) Shim. LC 1614.

15. This Court in Freed's case supra has observed as

under:

"18. While considering a bail application, it would be

necessary on the part of the Court to see culpability of the accused and his involvement in the commission of organized crime, either directly or indirectly, and

also to consider the question from the angle as to whether applicant was possessed of the requisite mens rea. Interim bail, pending investigation, can be granted, keeping in view the facts and circumstances

of the case.

...........

21. Dealing with the provisions of Section 438 Cr.PC, the Supreme Court in P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24, has observed as under:

"Grant of Anticipatory bail in exceptional cases

CRMPM No.1363/2021 ...10...

69. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 CrPC is an extraordinary power and the same has to be exercised sparingly. The privilege of the 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; possibility

of 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 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.

70. On behalf of the appellant, much arguments were advanced contending that anticipatory bail is a facet of Article 21 of the Constitution of India. It was contended that unless custodial interrogation is warranted, in

the facts and circumstances of the case, denial of anticipatory bail would amount to denial of the right conferred upon the appellant under Article 21 of the Constitution of India.

71. Article 21 of the Constitution of India states that no person shall be deprived of his

life or personal liberty except according to procedure prescribed by law. However, the power conferred by Article 21 of the Constitution of India is not unfettered and is

qualified by the later part of the Article i.e. "....except according to a procedure prescribed by law." In State of M.P. and another v. Ram Kishna Balothia, (1995) 3 SCC 221, the Supreme Court held that the right of anticipatory bail is not a part of Article 21 of the Constitution of India and held as under: (SCC p.226, para 7)

"7. ........We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part

CRMPM No.1363/2021 ...11...

of Article 21. In the first place, there was no provision similar to Section 438 in the old Criminal Procedure Code. The Law Commission in its 41st Report recommended introduction of a provision for grant of anticipatory bail. It observed:

.

'We agree that this would be a useful advantage. Though we must add that it is in very exceptional cases that such power should be exercised.'

In the light of this recommendation, Section 438 was incorporated, for the first time, in the Criminal Procedure Code of 1973. Looking to the cautious recommendation of the Law

Commission, the power to grant anticipatory bail is conferred only on a Court of Session or the High Court. Also, anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be

considered as an essential ingredient of Article

21 of the Constitution. And its non-application to a certain special category of offences cannot be considered as violative of Article 21." (emphasis supplied)

72. We are conscious of the fact that the legislative intent behind the introduction of Section 438 Cr.P.C. is to safeguard the individual's personal liberty and to protect him from the possibility of being humiliated and

from being subjected to unnecessary police custody. However, the court must also keep in

view that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established

between the two rights - safeguarding the personal liberty of an individual and the societal interest. It cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant under Article 21 of the Constitution of India.

73. The learned Solicitor General has submitted that depending upon the facts of each case, it is for the investigating agency to confront the accused with the material, only when the accused is in custody. It was

CRMPM No.1363/2021 ...12...

submitted that the statutory right under Section 19 of PMLA has an in-built safeguard against arbitrary exercise of power of arrest by the investigating officer. Submitting that custodial interrogation is a recognised mode of interrogation which is not only permissible but

.

has been held to be more effective, the learned

Solicitor General placed reliance upon State v. Anil Sharma, (1997) 7 SCC 187; Sudhir v. State of Maharashtra, (2016) 1 SCC 146; and Directorate of Enforcement v. Hassan Ali Khan,

(2011) 12 SCC 684.

74. Ordinarily, arrest is a part of the process of the investigation intended to secure several purposes. There may be circumstances in which

the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. Pre-arrest bail is to strike a balance between the individual's right to personal freedom and the right of the

investigating agency to interrogate the accused

as to the material so far collected and to collect more information which may lead to recovery of relevant information. In State v. Anil Sharma, (1997) 7 SCC 187, the Supreme Court held as under: (SCC p.189, para 6)

"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 disinterring many useful informations 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 reduce 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

CRMPM No.1363/2021 ...13...

accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves

.

as offenders."

75. Observing that the arrest is a part of the investigation intended to secure several purposes, in Adri Dharan Das v. State of W.B.,

(2005) 4 SCC 303, it was held as under: (SCC p.313, para 19)

"19. Ordinarily, arrest is a part of the process of investigation intended to

secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may r be circumstances in which the accused

may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect

witnesses and persons connected with the victim of the crime, to prevent his disappearance, to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of

the process of investigation. The legality of the proposed arrest cannot be gone

into in an application under Section 438 of the Code. The role of the investigator is well defined and the jurisdictional scope of interference by the court in the

process of investigation is limited. The court ordinarily will not interfere with the investigation of a crime or with the arrest of the accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code."

CRMPM No.1363/2021 ...14...

76. In Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, the Supreme Court laid down the factors and parameters to be considered while dealing with anticipatory bail. It was held that the nature and the gravity of the accusation and the exact role of the

.

accused must be properly comprehended

before arrest is made and that the court must evaluate the available material against the accused very carefully. It was also held that the court should also consider whether the

accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

77. After referring to Siddharam Satlingappa

Mhetre and other judgments and observing that anticipatory bail can be granted only in exceptional circumstances, in Jai Prakash Singh v. State of Bihar, (2012) 4 SCC 379, the Supreme Court held as under: (SCC p.386, para

19)

"19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional

circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu v. P.T. Manokaran, (2007) 4 SCC 434, State of

Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain, (2008) 1 SCC 213 and Union of India v.

Padam Narain Aggarwal, (2008) 13 SCC 305.)""

16. In Mangal Singh Negi v. Central Bureau of

Investigation, reported in 2021(2) Shim. LC 860, this Court

observed as under:

"22. Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Arrest of an offender during investigation, as discussed supra, is duly prescribed in Cr.P.C.

23. At the same time, Cr.P.C. also contains Chapter XXXIII, providing provision as to bail and bonds, which

CRMPM No.1363/2021 ...15...

empowers the Magistrate, Sessions Court and High Court to grant bail to a person arrested by the Police/Investigating Officer in accordance with provisions contained in this Chapter. This Chapter also contains Section 438 empowering the Court to issue directions for grant of bail to a person

.

apprehending his arrest. Normally, such bail is called

as "Anticipatory Bail". Scope and ambit of law on Anticipatory Bail has been elucidated by the Courts time and again.

24. Initially, provision for granting Anticipatory Bail by the court was not in the Cr.P.C., but on the recommendation of the Law commission of India in its 41st Report, the Commission had pointed out necessity for introducing a set provision in the Cr.P.C.

enabling the High Court and Court of Session to grant Anticipatory Bail, mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. It was also observed by the Commission that

with the accentuation of political rivalry, this

tendency was showing signs and steady increase and further that where there are reasonable grounds for holding that the person accused of an offence is not likely to abscond or otherwise misuse his liberty, while on bail, there seems no justification to require

him to submit to custody, remain in prison for some days and then apply for bail. On the basis of these recommendations, provision of Section 438 Cr.P.C. was included in Cr.P.C. as an antidote for preventing arrest and detention in false case. Therefore,

interpretation of Section 438 Cr.P.C., in larger public interest, has been done by the Courts by reading it

with Article 21 of the Constitution of India to keep arbitrary and unreasonable limitations on personal liberty at bay. The essence of mandate of Article 21 of the Constitution of India is the basic concept of

Section 438 Cr.P.C.

25. Section 438 Cr.P.C. empowers the Court either to reject the application forthwith or issue an interim order for grant of Anticipatory Bail, at the first instance, after taking into consideration, inter alia, the factors stated in sub-section (1) of Section 438 Cr.P.C. and in case of issuance of an interim order for grant of Anticipatory Bail the application shall be finally heard by the Court after giving reasonable opportunity of being heard to the Police/ Prosecution. Section 438 Cr.P.C. prescribes certain factors which

CRMPM No.1363/2021 ...16...

are to be considered at the time of passing interim order for grant of Anticipatory Bail amongst others, but no such factors have been prescribed for taking into consideration at the time of final hearing of the case. Undoubtedly, those factors which are necessary to be considered at the time of granting

.

interim bail are also relevant for considering the bail

application at final stage.

26. A balance has to be maintained between the right of personal liberty and the right of Investigating

Agency to investigate and to arrest an offender for the purpose of investigation, keeping view various parameters as elucidated by the court in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 and Sushila Aggarwal & others v. State (NCT of Delhi) &

another, (2020) 5 SCC 1 cases and also in other pronouncements referred by learned counsel for CBI."

17. Material, placed before me, is sufficient to infer that

accusation does not seem to have been made, in present case,

with object to injuring or humiliating the petitioner having him

arrested.

18. So far as affidavits sworn-in by the victim and her

mother are concerned, these are matter of consideration by

the Investigating Officer or the trial Court or at the time of

considering bail petition, if any, preferred by the petitioner,

but not at this stage when investigation is pending and the

present petition has been filed for anticipatory bail.

19. Investigation, in present case, is at initial stage.

Investigating Agency, for non-cooperation of petitioner, has not

been able to have access to the FACEBOOK account, which is

necessary for completion of investigation.

CRMPM No.1363/2021 ...17...

20. Considering the factors and parameters, necessary

to be considered for adjudication of anticipatory bail under

Section 438 Cr.PC, as propounded by the Supreme Court as

.

referred by this Court in Freed's case (supra) and various other

pronouncements of the Supreme Court, referred supra, but

without commenting on merits of evidence produced before

me, I find that it is not a fit case for continuation of bail under

Section 438 Cr.PC.

21. Needless to say that petitioner has a right to

approach the Court, under Section 439 Cr.PC, seeking regular

bail. In such eventuality, such application shall be considered

on the basis of its own merits, within parameters relevant for

adjudicating that.

22. Observations made in this petition hereinbefore,

shall not affect the merits of the case in any manner and are

strictly confined for the disposal of the bail application.

Petition is dismissed and disposed of.

                                             ( Vivek Singh Thakur )





    August 19, 2021(sd)                               Judge.