Pravesh Kumar vs And
2021 Latest Caselaw 4070 HP

       IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
                ON THE 24th DAY OF AUGUST, 2021




                                                      .
                            BEFORE





           HON'BLE MR. JUSTICE VIVEK SINGH THAKUR





     CRIMINAL MISC. PETITION (MAIN) Nos.754 and 755 of 2021


    Between:-
    1. CR.MP(M) NO. 754 OF 2021

      PRAVESH KUMAR,
      SON OF KUNDAN SINGH,

      RESIDENT OF VILL. KANDO,

      P.O. KANDO DUGANA,
     TEH. KAMROU, DISTT.SIRMAUR

     HIMACHAL PRADESH
                                                        ....PETITIONER
    (BY SH. TARA SINGH CHAUHAN, ADVOCATES)


    AND
     STATE OF HIMACHAL PRADESH




                                                      ...RESPONDENT
    (BY SHRI ANIL JASWAL, ADDITIONAL ADVOCATE GENERAL)





    2. CR.MP(M) NO. 755 OF 2021
       PARVINDER KUMAR
       SON OF KUNDAN SINGH,





       RESIDENT OF VILLAGE KANDO,
       P.O. KANDO DUGANA,
       TEH.KAMROU, DISTT.SIRMAUR
       HIMACHAL PRADESH
                                                        ...PETITIONER

    (BY SH.TARA SINGH CHAUAHAN, ADVOCATE)

    AND

     STATE OF HIMACHAL PRADESH                      ....RESPONDENT

    (BY SHRI ANIL JASWAL, ADDITIONAL ADVOCATE GENERAL)




                                     ::: Downloaded on - 31/01/2022 22:56:24 :::CIS
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        JUDGMENT RESERVED ON 18th AUGUST, 2021

        DATE OF DECISION:- 24th AUGUST, 2021.




                                                                      .

        Whether approved for reporting?

    This petition coming on for pronouncement of order this day, the Court passed the





    following:

                                      ORDER

Petitioners, who are twins, have approached this Court

under Section 438 of Code of Criminal Procedure (in short 'Cr.PC)

seeking bail in case FIR No. 42 of 2021, dated 20.04.2021, registered

under Section 376 read with Section 34 of Indian Penal Code (in

short 'IPC') in Police Station Puruwala, District Sirmaur, H.P.

2 Status report stands filed and record was also produced.

FIR in present case has been registered on the basis of complaint

submitted by prosecutrix on 20.4.2021 in Police Station Puruwala

stating therein that she had studied upto MA and was in job at

Paonta Sahib but was residing in Rajban because her family had

landed property there. According to complaint, she had met

petitioner Parvinder Kumar in 2015 at Kafota for the first time and

since then, she had been in talking terms, and Parvinder, disclosing

that he is in Army, had promised her to marry her and during this

period, whenever, he had come home on leave, he had been

violating her person forcibly and last violation by him was 1½ years

ago and thereafter he was on Army duty in Sudan wherefrom also,

he had been contacting her through Whatsapp call and chat.

According to complainant, Parvinder had disclosed her that they are

twins and both are in Army and both will marry with one girl, but, she

.

had refuted the said proposal but by taking advantage of such

custom, petitioner Parvesh Kumar, twin brother of Parvinder, had

also pressurized her to have telephonic talks with him and had also

forcibly violated her in forest of Tilorghat. Lastly it was stated in

complaint that since 2015 Parvinder Kumar had violated her 5/6

r to times after making false promise to marry and his brother Parvesh

had also violated her after extending threats to her.

On the basis of aforesaid complaint, FIR was registered.

Complainant was medically examined and her statement under

Section 164 Cr.P.C. was also recorded before learned Additional Chief

Judicial Magistrate, Paonta Sahib on 22.4.2021.

4 As per status report, petitioners had joined the

investigation after approaching the High Court by filing present

petitions. They were also subjected to medical examination. As per

status report, prosecutrix had produced her mobile phone used for

talks, Whatsapp chats and video chats with petitioners with screen

shots taken during those talks saved in mobile phone and also with

recording of talks of prosecutrix with petitioner Parvesh Kapoor on

15.01.2021. In the conversation recorded with Parvesh Kapoor,

recorded by victim, petitioner Parvesh Kapoor has admitted that his

brother Parvinder had violated prosecutrix for 5/6 times and he

(Parvesh Kumar) had violated her once.

5 As per status report, during interrogation, petitioner

Parvinder Kapoor had disclosed that he had affairs with prosecutrix

.

for 3-4 years, but, in February, 2015 he was deputed in Sudan and

there was break up in relations and for consoling the victim, he had

conversation with prosecutrix through Whatsapp and video chats,

but, he had refused the violation of person of prosecutrix. It is stated

in status report that both petitioners had been married on 19.4.2021

with two different girls by solemnizing the marriage firstly in temple

and thereafter in the Court at Paonta Sahib. It is stated in status

report that claim of victim is substantiated from recording of

conversation and that petitioners are influential persons and they

can threat or allure the prosecution witnesses and both are serving

in Indian Army and in case, they are enlarged on bail, then, they can

avoid joining the police investigation and interrogation as in Army

Protocol, to associate Army personnel for interrogation, a long

cumbersome process is required to be followed.

6 Script of conversation recorded by victim, reduced into

writing, and screen shots of conversation between victim and

petitioners and screenshots of video chatting/calls have also been

made part of record.

7 It is submitted on behalf of petitioners that prosecutrix

being well educated grownup girl, who had been in job in Paonta

Sahib and residing independently in Rajban, was competent enough

to know and understand consequences of her deeds and petitioners

had never agreed or consented or promised to marry her, but,

petitioner Parvinder Kapoor and prosecutrix were in relationship, but

.

the said relationship had ended in February, 2015 and thereafter,

prosecutrix had tried to develop relations with Parvesh Kumar and

she had been pressurizing him to marry her for which petitioners had

never promised and when marriage of petitioners was solemnized on

19th April, 2021, prosecutrix had lodged FIR on 20th April, 2021

r to purporting that petitioners had been violating her person after giving

false promise of marriage, which is not true.

Learned Additional Advocate General has referred the

conversation, chatting and screen shots to substantiate the plea of

prosecutrix, whereas, learned counsel for petitioners has referred the

same conversation and chatting to point out that at no point of time

either Parvinder or Parvesh had agreed to marry the prosecutrix and

in the entire conversation, prosecutrix was pressing petitioners to

promise to marry, but, in entire conversation, petitioner Parvesh had

been suggesting to have more intimacy before deciding to marry. He

has submitted that though in conversation, Parvesh Kumar has been

alleged to have been admitted that he had violated prosecutrix once

and his brother had violated her 5/6 times, but, in this conversation

also, he has not admitted that said physical relations were

develpped for promise to marry. It is submitted by learned counsel

for petitioners that from conversation it appears that earlier, she was

asking Parvinder to marry her, but, in conversation, she had been

asking Parvesh to promise to marry her. Lastly, it is submitted by

learned counsel for petitioners that in any case, impact of

.

conversation and chats on merits and de-merits of case is to be

assessed by trial Court as in these conversations and at this stage,

there is no material on record to conclude either way that as to

whether allegations of prosecutrix are true or not and therefore, in

the light of evidence available on record, there may only be

suspicion and for suspicion only, petitioners, who are serving in Army

and law abiding citizens and ready to furnish bail bonds, should not

be sent behind the bars particularly when they have joined the

investigation and investigation is complete and challan has been

presented in Court. Petitioners have also appeared before Court on

21st August, 2021, the date fixed for their presence after

presentation of challan before the Magistrate. According to him, after

presentation of challan possibility of tampering with evidence also

does not survive.

9 Without commenting upon the rival contentions of

parties and applying principles, factors and parameters as

propounded by the Supreme Court and this Court, required to be

considered at the time of adjudication of bail application, I am of the

considered view that in the facts and circumstances, detailed supra,

petitioners are entitled to be enlarged on bail. Accordingly,

petitioners are ordered to be released on bail subject to

theirfurnishing personal bonds each in the sum of Rs.50,000/- with

one surety each in the like amount to the satisfaction of concerned

trial Court within two weeks from today and subject to further

.

conditions which may be imposed for ensuring their presence during

trial and also subject to the following conditions:-

(i) That the petitioners shall make themselves available during the investigation as well as trial on each and every date as and

when required;

(ii) That the petitioners shall not directly or indirectly make any inducement, threat or

promise to any person acquainted with the

facts of the case so as to dissuade her from disclosing such facts to Court or to any police officer or tamper with the evidence.

They shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iii) That the petitioners shall not obstruct the

smooth progress of the investigation as well as trial;

(iv) That the petitioners shall not jump over the

bail and shall inform, in writing, regarding change of address, land line number and/or mobile number, if any, in advance, to concerned Police Station;

(v) That the petitioners shall not commit the offence similar to the offence to which they are accused or suspected or the commission of which they are suspected;

(vi) In the event of repetition of commission of offence, bail granted in present case shall

.

be liable to be cancelled on taking

appropriate steps by prosecution/police;

(vii) That the petitioners shall not leave India

without prior permission of Court;

(viii) That petitioners shall not misuse their liberty in any manner.

10. It will be open to the prosecution to apply for imposing

any such other or further condition on the petitioner as deemed

necessary in the facts and circumstances of the case and in the

interest of justice. It will also be open to the trial Court/Magistrate to

impose any other or further condition on the petitioner as it may

deem necessary in the interest of justice.

11. In case the petitioner violates any condition imposed

upon them, their bail shall be liable to be cancelled. In such

eventuality, prosecution may approach the competent Court of law

for cancellation of bail in accordance with law.

12. Learned trial Court is directed to comply with the

directions issued by the High Court, vide communication No.

HHC/VIG/Misc.Instructions/93-IV.7139 dated 18.3.2013.

13 Any observation made in this order shall not affect the

merits of case in any manner and will strictly confine for the

disposal of this bail application filed under Section 439 of Code of

Criminal Procedure 1973.

14. The petitioners arepermitted to produce copy of order

downloaded from the High Court website and the trial Court shall

.

not insist for certified copy of the order, however, they may verify

the order from the High Court website or otherwise.

Petitions stand disposed of.

Dasti copy on usual terms.

    August 24,2021
    (ms)              r          to      (Vivek Singh Thakur)
                                                Judge