Date Of Decision: February 4 vs State Of Himachal Pradesh
2021 Latest Caselaw 905 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.112 of 2021 Reserved on: January 22, 2021.

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Date of Decision: February 4, 2021.

    Banti Sharma                                                   ...Petitioner.





                                    Versus

    State of Himachal Pradesh                                    ...Respondent.

    Coram:





    The Hon'ble Mr. Justice Anoop Chitkara, Judge.

    Whether approved for reporting?1 NO

    For the petitioner:    Mr. Manoj Pathak, Advocate.

For the respondent: M/s. Narender Guleria and Vikas Rathour, Addl. Advocate Generals with M/s. Bhupinder Thakur, Gaurav Sharma and Ms. Divya Sood, Deputy Advocate Generals.

                           THROUGH VIDEO CONFERENCE




    FIR No. Dated                 Police Station          Sections
    67    of 6.10.2020            Chopal,        District 452, 376 IPC & Section 4 of
    2020                          Shimla, H.P.            POCSO Act.





    Anoop Chitkara, Judge.

A boy aged 21 years, who is in prison for the last more than three

months, for committing rape upon a minor child of 16 years, has come up before this

Court seeking regular bail.

2. The contents of the petition reveal that the petitioner straightaway filed the bail

petition before High Court, which is permissible given the decision of a three Judges

Bench of HP High Court, in Mohan Lal v Prem Chand, AIR 1980 HP 36, (Para 9 &

Whether reporters of Local Papers may be allowed to see the judgment?

15), wherein the Full bench holds that a person can directly apply for an anticipatory

bail or regular bail to the High Court without first invoking the jurisdiction of the

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Sessions Judge. Earlier also, he had filed bail petition before this Court, which was

registered as Cr.MP(M) No.2202 of 2020, however, the same was withdrawn by

learned counsel, on 22.12.2020.

3. The bail petition is silent about criminal history, however, Mr. Manoj Pathak, learned Counsel for the bail petitioner states on instructions that the petitioner has no criminal past relating to the offences prescribing sentence of seven years and more,

or when on conviction, the sentence imposed was more than three years.

4. Briefly, the allegations against the petitioner are that on 6.10.2020, the Police

received a phone call from village Dakara in Chopal District that somebody had

entered their house and that they had detained him. On this, the Police reached on

the spot. The Police recorded the statement of complainant under Section 154 Cr.PC.

She told the Police that her niece who is an orphan, was staying with them for last

two months. At 8:30 p.m., all the family members had gone to sleep after cutting

grass for the entire day, which is a very tiring job. She alongwith her husband and a

child used to sleep in one room and the victim used to sleep in a separate room. At

about 11:00 p.m., when she woke up to urinate, then she noticed one boy coming out

of the room of her niece. She caught that boy from his jacket and in the meanwhile,

her husband also came there and he nabbed him. On asking, the said boy named

himself as Banti. Then, they went to the room of their niece, who was crying. She

told that the boy after entering her room, gagged her mouth and then despite her

resistance, committed rape upon her. The age of the victim is 16 years. Based on

these allegations, the Police registered the FIR mentioned above.

5. Thereafter, the Police got recorded the statement of the victim under Section

164 Cr.PC and collected her Date of Birth Certificate, according to which, she was

born on 31.10.2005. Thus, her age on the day of incident, was 15 years and 11

months. The Police arrested the accused and investigation is going on.

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6. Learned counsel for the petitioner contends that incarceration before the proof

of guilt would cause grave injustice to the petitioner and family.

7. While opposing the bail, the alternative contention on behalf of the State is that

if this Court is inclined to grant bail, such a bond must be subject to very stringent

conditions.

8. The possibility of the accused influencing the investigation, tampering with

evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken

care of by imposing elaborative and stringent conditions. In Sushila Aggarwal,

(2020) 5 SCC 1, Para 92, the Constitutional Bench held that unusually, subject to the

evidence produced, the Courts can impose restrictive conditions.

REASONING:

9. The complainant came to know about the presence of the accused in the room

of her niece, not because of the cries of the victim, but per chance. She woke up to

urinate and then she noticed the boy coming out of the room of her niece. It means

that had she not woken up, she would not have seen the boy coming out. After that

when she entered the room, the victim started crying. Given the accused entering her

room, she would have atleast drawn the attention of her Mama & Mami by rasing

hue and cry. Although, the victim could not have consented being under 18 years of

age, but her conduct in not initiatlly drawing the attention of her Mama & Mami, and

the fact that a young girl would always keep her room bolted from inside and that

there is no allegation that he entered the room forcibly and in case the petitoner used

the force to break the door, then commotion would have been there to let her Mama

& Mami wake up, at least makes out a case for bail in favour of the petitioner. The

conduct of the victim in not raising hue and cry and absence of plausible

exaplaination for her letting the petitoner enter the room, would entitle the petitoner

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to enlarge him on bail.

10. Given the age of the victim being under 18 years, she could not have consented

and nor the accused had any right to accept her consent. On the face of it, the

accused might be aware that she is under 18 years. Given the fact that in Code of

Criminal Procedure, 1860, the age of consent was 16 years, which, vide 13 th

amendment, was increased to 18 years. It is a legislative business and this Court is

not commenting upon it. However, keeping in view the conduct of the victim in not

raising hue and cry, coupled with the fact that the accused is a first time offender and

is in jail for more than three months, further incarceration of accused is not justified.

11. An analysis of entire evidence does not justify further incarceration of the

accused, nor is going to achieve any significant purpose. Without commenting on the

merits of the case, the stage of the investigation and the period of incarceration

already undergone would make out a case for bail.

12. In the facts and circumstances peculiar to this case, the petitioner makes out a

case for release on bail.

13. Given the above reasoning, the Court is granting bail to the petitioner, subject

to strict terms and conditions, which shall be over and above and irrespective of the

contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.

14. In Manish Lal Shrivastava v State of Himachal Pradesh, CrMPM No. 1734

of 2020, after analysing judicial precedents, this Court observed that any Court

granting bail with sureties should give a choice to the accused to either furnish surety

bonds or give a fixed deposit, with a further option to switch over to another.

15. The petitioner shall be released on bail in the FIR mentioned above, subject to

his furnishing a personal bond of Rs. Twenty-five thousand (INR 25,000/-), and shall

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furnish two sureties of a similar amount, to the satisfaction of the Judicial Magistrate

having the jurisdiction over the Police Station conducting the investigation, and in

case of non-availability, any Ilaqa Magistrate. Before accepting the sureties, the

concerned Magistrate must satisfy that in case the accused fails to appear in Court,

then such sureties are capable to produce the accused before the Court, keeping in

mind the Jurisprudence behind the sureties, which is to secure the presence of the

accused.

16. In the alternative, the petitioner may furnish aforesaid personal bond and

fixed deposit(s) for Rs. Twenty-five thousand only (INR 25,000/-), made in favour of

"Chief Judicial Magistrate, District Shimla, H.P.,"

a) Such Fixed deposits may be made from any of the banks where the stake of the State is more than 50%, or any of the stable private banks, e.g., Bank of America, Chase, HSBC, City Bank, HDFC Bank, ICICI Bank, Kotak Mahindra Bank, etc., with the clause of automatic renewal of principal, and liberty of the

interest reverting to the linked account.

b) Such a fixed deposit need not necessarily be made from the account of

the petitioner and need not be a single fixed deposit.

c) If such a fixed deposit is made in physical form, i.e., on paper, then the original receipt shall be handed over to the concerned Court.

d) If made online, then its printout, attested by any Advocate, and if

possible, countersigned by the accused, shall be filed, and the depositor shall get the online liquidation disabled.

e) The petitioner or his Advocate shall inform at the earliest to the concerned branch of the bank, that it has been tendered as surety. Such information be sent either by e-mail or by post/courier, about the fixed deposit, whether made on paper or in any other mode, along with its number as well as FIR number.

f) After that, the petitioner shall hand over such proof along with endorsement to the concerned Court.

g) It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. It shall also be open for the petitioner to apply for substitution of fixed deposit with surety bonds and vice-versa.

h) Subject to the proceedings under S. 446 CrPC, if any, the entire amount of fixed deposit along with interest credited, if any, shall be endorsed/returned

to the depositor(s). Such Court shall have a lien over the deposits up to the expiry of the period mentioned under S. 437-A CrPC, 1973, or until discharged by substitution as the case may be.

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17. The furnishing of the personal bonds shall be deemed acceptance of the

following and all other stipulations, terms, and conditions of this bail order:

a) The petitioner to execute a bond for attendance to the concerned Court(s). Once the trial begins, the petitioner shall not, in any manner, try to delay the proceedings, and undertakes to appear before the concerned Court and to attend the trial on each date, unless exempted. In case of an appeal, on

this very bond, the petitioner also promises to appear before the higher Court in terms of Section 437-A CrPC.

b) The attesting officer shall, on the reverse page of personal bonds, mention the permanent address of the petitioner along with the phone

number(s), WhatsApp number (if any), e-mail (if any), and details of personal

bank account(s) (if available), and in case of any change, the petitioner shall immediately and not later than 30 days from such modification, intimate about the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, to the Police Station of this FIR to the concerned Court.

c) The petitioner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police officials, or any other person acquainted with the facts of the case, to

dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.

d) The petitioner shall join the investigation as and when called by the Investigating Officer or any Superior Officer; and shall cooperate with the investigation at all further stages as may be required. In the event of failure to

do so, it will be open for the prosecution to seek cancellation of the bail. Whenever the investigation occurs within the police premises, the petitioner shall not be called before 8 AM and shall be let off before 5 PM, and shall not be subjected to third-degree, indecent language, inhuman treatment, etc.

e) In addition to standard modes of processing service of summons, the concerned Court may serve or inform the accused about the issuance of summons, bailable and non-bailable warrants the accused through E-Mail (if any), and any instant messaging service such as WhatsApp, etc. (if any). [Hon'ble Supreme Court of India in Re Cognizance for Extension of Limitation, Suo Moto Writ Petition (C) No. 3/2020, I.A. No. 48461/2020- July 10, 2020]:

i. At the first instance, the Court shall issue the summons.

ii. In case the petitioner fails to appear before the Court on the specified date, in that eventuality, the concerned Court may issue bailable warrants.

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iii. Finally, if the petitioner still fails to put in an appearance, in that eventuality, the concerned Court may issue Non-Bailable Warrants to procure the petitioner's presence and may send the petitioner to the Judicial custody for a period for which the concerned Court may deem

fit and proper to achieve the purpose.

18. The petitioner shall neither stare, stalk, make any gestures, remarks, call,

contact, message the victim, either physically, or through phone call or any

other social media, nor roam around the victim's home.

19. Given the victim's apprehension, the petitioner should stay far away from the

place of occurrence while on bail. - (Vikram Singh v Central Bureau of

Investigation, 2018 All SCR (Crl.) 458). Thus, petitioner shall stay at a distance

of five kilometers away from her residence till the conclusion of trial.

20. During the trial's pendency, if the petitioner repeats or commits any offence

where the sentence prescribed is more than seven years or violates any condition as

stipulated in this order, the State may move an appropriate application before this

Court, seeking cancellation of this bail. Otherwise, the bail bonds shall continue to

remain in force throughout the trial and after that in terms of Section 437-A of the

CrPC.

21. Any Advocate for the petitioner and the Officer in whose presence the

petitioner puts signatures on personal bonds shall explain all conditions of this bail

order, in vernacular and if not feasible, in Hindi.

22. In case the petitioner finds the bail condition(s) as violating fundamental,

human, or other rights, or causing difficulty due to any situation, then for

modification of such term(s), the petitioner may file a reasoned application before

this Court, and after taking cognizance, even to the Court taking cognizance or the

trial Court, as the case may be, and such Court shall also be competent to modify or

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delete any condition.

23. This order does not, in any manner, limit or restrict the rights of the Police or

the investigating agency from further investigation per law.

24. Any observation made hereinabove is neither an expression of opinion on the

merits of the case, nor shall the trial Court advert to these comments.

25. In return for the protection from incarceration, the Court believes that the

accused shall also reciprocate through desirable behavior.

26. The SHO of the concerned Police Station or the Investigating Officer shall

arrange to send a copy of this order, preferably a soft copy, to the victim, at the

earliest. In case the victim notices any objectionable behavior or violation of any

terms or conditions of this order, the victim may inform the SHO of the concerned

Police Station or the Trial Court or even to this Court.

27. There would be no need for a certified copy of this order for furnishing bonds,

and any Advocate for the Petitioner can download this order from the official web page of this Court and attest it to be a true copy. In case the attesting officer or the

Court wants to verify the authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.

The petition stands allowed in the terms mentioned above.

(Anoop Chitkara) Vacation Judge.

February 4, 2021 (KS)