Jodh Singh vs State Of H.P
2021 Latest Caselaw 934 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 102 of 2021 Reserved on: Jan 21, 2021.

.

Date of Decision: February 4, 2021.

    Jodh Singh                                                  ...Petitioner.

                                     Versus





    State of H.P.                                                  ...Respondent.

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





    Whether approved for reporting?1 NO

    For the petitioner:     rMr. Anil Kumar, 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
        19/2020   12.2.2020       Hatli, District Mandi 376(2), 363, IPC and S.6,




                                                        POCSO Act and S.3(2)V,(va),
                                                        3(1)(w)(i), SC&ST Act





    Anoop Chitkara, Judge.

A boy aged 23 years, who is in prison for the last one year, for asking a

girl of his village aged 15 years belonging to Scheduled Caste to come out of her

house during the night and accompany him in his car, where he established coitus

with her twice, 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

.

Sessions Judge.

3. In Para 3 of the bail application, the petitioner declares having no criminal

history. The status report also does not mention any criminal past of the accused.

4. Briefly, the allegations against the petitioner are that on 12.2.2020, the mother

of the victim informed Police Station Hatli about allurement of her daughter by one

Jodh Singh. Based on these allegations, the Police registered the FIR mentioned

above.

5. The mother told the police that on 11.2.2020 at 11.00 p.m, her daughter ran

away with a boy of Rewalsar. She further told that the boy is a driver and gave his

mobile number and also that of the victim. She told that the victim is aged 15 years

and is a student of class +1. When they made a phone call on this number, it was

picked up by a friend, who said that the victim is with the boy. He assured them that

the girl would reach home and when she did not return, they came to Police Station,

which led to the registration of the FIR mentioned above.

6. On 13.2.2020 the police recovered the victim and got her medically examined.

After the report of the doctor, Sections 376(2), IPC and Section 6 of POCSO Act

were inserted in the FIR. The police also took into possession the clothes worn by

the victim. After that on 14.2.2020, the police arrested the accused. Thereafter, the

police recorded the statement of the victim under Section 164, Cr.PC and sent the

swabs obtained by the doctor from her privates as well as clothes and genetic

material of the accused to the laboratory for testing. The police also obtained call

details of the phones of the victim and the accused, which revealed that they were

talking to each other. The victim belongs to Scheduled Caste, whereas the boy

belongs to Upper Caste. On coming to know about the victim belonging to

Scheduled Caste, offences under SC&ST Act were added in the FIR. The report of

.

the laboratory detected human semen in vaginal swabs, vaginal slides and lower

'Pujami' of the victim, The DNA profiling of the genetic material obtained from the

victim and the accused matched with each other. Based on the scientific evidence, the

State launched the prosecution. Investigation revealed that the accused established

coitus with the victim twice on the back seat of the car. The investigation revealed

that at 11.00 p.m. on 11.2.2020, the accused called the victim to the road, where he

was waiting for her in a Maruti 800 car and in his car, he took her to his home at

Rewalsar and from where he took her to Kalkhar to his friend Ishwar Dass and then

also took his friend Ishwar Dass and went towards Mata Murari Mandir. At about 2/3

a.m in the night, the car of the accused broke down. The accused and the victim slept

on the rear seat, whereas Ishwar Dass slept on the front seat. On the rear seat, the

accused twice established coitus with her. In the morning at 6.00 a.m, Ishwar Dass

returned to his home. At about 7.00 a.m. the accused dropped the victim from car

and left her in the forest. On 12.2.2020 the victim stayed in the house of one

Champa, a villager and on 13.2.2020 left the house of said Chamba and went towards

forest and called her brother-in-law (Jija) Keshav Ram. After that, during search in

the forest, the police recovered her.

7. Ld. Counsel for the petitioner contends that incarceration before the proof of

guilt would cause grave injustice to the petitioner and family.

8. 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.

9. 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:

10. The accused is aged 23 years, whereas the victim is aged 15 years. The call

details obtained by the investigator points out that they were in frequent contact with

each other. The number of calls would also point out that they were friends. When

the accused called the victim at night, then she left her home with him knowing that

it was night time and she would be leaving her home and when her family mambers

would not find her at home in the night, then it would put them under huge trauma.

Despite that, she voluntarily left her home and travelled with the boy. It points out

that they might be in romantic love and in continuation of such love, they explored

each other's body and established coitus.

11. 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 being co-villagers and friends.

Given the fact that in Code of Civil Procedure, 1860, the age of consent was 16

years, which, vide 13th 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 and her act of voluntarily accompanying the accused coupled

with the fact that the accused is a first time offender and is in jail for around one

year, further incarceration of accused is not justified.

12. 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.

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

case for release on bail.

14.

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.

15. 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.

16. 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

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.

.

17. 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 Mandi 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.

18. 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,

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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.

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. 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.

20. 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.

21. 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

delete any condition.

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

the investigating agency from further investigation per law.

23. 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.

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

accused shall also reciprocate through desirable behavior.

25. 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

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

26. 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.

    Feb 4, 2021 (mamta)
                          r               to                              (Anoop Chitkara)
                                                                            Vacation Judge.