Om Pardeep vs State Of Himachal Pradesh
2021 Latest Caselaw 3148 HP

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         IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                       Cr.MP(M) No.1330 of 2021
                                       Date of Decision: July 16, 2021




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    Om Pardeep                                                             ...Petitioner.

                                       Versus
    State of Himachal Pradesh                                                  ...Respondent.





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





    Whether approved for reporting?1NO

    For the petitioner:          Mr. Naresh Kaul, Advocate.
    For the respondent:          Mr. Nand Lal Thakur, Additional Advocate General,
                                 Mr. Ram Lal Thakur, Assistant Advocate General and
                           r     Mr. Rajat Chauhan, Law Officer, for the State.

        FIR No.      Dated           Police Station                             Sections
        73 of 2021   13.6.2021       Damtal,   Tehsil     Indora,   District    376 and 506 of the IPC


                                     Kangra, H.P.                               and 3(2) (VA) of the
                                                                                SC&ST Act.

    Anoop Chitkara, Judge (oral)

A BSF soldier, who is apprehending arrest for establishing sexual relations with a girl aged 26 years, under the false promise of marrying her, has come up

before this Court under Section 439 of the Code of Criminal Procedure, 1973, seeking permission to surrender before this Court, and simultaneously seeking

release on ad-interim bail.

2. Earlier, the petitioner had filed the following bail petition before this Court:

(a) Cr.MP(M) No.1281 of 2021, which was dismissed as withdrawn, on 9.7.2021.

3. The bail petition is silent about criminal history, however, Mr. Naresh Kaul, 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,

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

or when on conviction, the sentence imposed was more than three years. The status report also does not mention any criminal past of the accused.

4. Briefly, the allegations against the petitioner are that on 13.6.2021, the victim

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aged 26 years informed the above mentioned Police Station about the sexual

exploitation. She stated that she has studied up to Plus Two. A boy named Om Pradeep Prajapati, the petitioner herein was visiting house of his relatives in the year, 2019. At that time, the victim was pursing her Nursing Course. During his visits, he

started talking to the victim and he also took her phone number. Whenever she would meet her on the road, he kept on proposing her for wedding. However, the victim told him that she would not like to marry him at that point in time. But, he

told her that he works in BSF and would make her life full of comforts. Upon hearing this, the victim fell into the trap since he is in Government service. On 20.8.2019, the petitioner-accused called her and told that he has to return back and join his duties and offered her that they should go to travel and talk about their

marriage. After that, they went to Hotel Exotica Height and in the hotel he took a

room. In the room, he told her that since they are going to marry, as such, he asked her to establish sexual relations with him. Upon this, the victim stated that they should not indulge into sexual relations before marriage. However, he removed his

trouser and established coitus with her despite her saying no to that. After that, he dropped her to her home. After two days, he again contacted her and told that they should do some shopping and took her to the same hotel and on that day also despite

her denial he established sexual relations with her. Thereafter, he kept on assuring

her till February, 2020 that he will marry her but after that he switched off his mobile phone. Given this, the victim felt that she has been duped by the accused-petitioner. Subsequently, she informed the Police and the FIR mentioned above was registered

against the present petitioner.

5. During investigation, the victim got recorded her statement under Section 161 Cr.PC. in which she stated that the family members of the accused stated that since she belongs to lower caste, as such, he would not marry her and in case she complaints then he would kill her. Based on these allegations, the police added the provisions of Atrocities Act in the said FIR.

6. The contents of FIR/status report reveal that the petitioner stands arraigned as an accused for the commission of non-bailable offences.

7. In Ami Chand v. State of H.P., CrMPM 1116 of 2020, Para 65, this Court held that in the absence of any riders or restrictions under S. 439 CrPC, any person accused of a non-bailable offence, under any penal law, including the violations

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under the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989,

can apply under section 439 CrPC, offering to surrender and simultaneously seeking interim bail. On receipt of such application, the Court is to satisfy that the applicant stands arraigned as an accused in a FIR disclosing non-bailable offences. If all these

parameters are complete, then the Courts are under an obligation to accept surrender. Since custody is a sine qua non for considering a bail application, the Court is under an obligation to consider the prayer for interim bail after this deemed custody. All

such pleas fall under the scope of S. 439 CrPC itself, and there is no need to invoke S. 482 CrPC. After that, granting or refusing interim bail is a Judicial function.

8. The accused/petitioner is present in the Court and had offered to surrender, which request is accepted, and the accused is in deemed custody of this Court.

9. 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.

REASONING:

10. At the time of incident, the victim was aged 26 years. When for the first time, she fell into his trap then despite that on the second time again she volunteered to go with him to the hotel. Furthermore, there is no allegation that accused used force

upon her.

11. Without commenting on the case's merits and the circumstances peculiar to this case, the petitioner makes a case for bail.

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

his furnishing a personal bond of Rs. Ten thousand (INR 10,000/-), to the satisfaction of the Registrar (Judicial)/ Additional Registrar (Judicial), or any such officer as may be authorised in this behalf by any of the Registrars of this Court. Given the conduct of the petitioner to offer surrender before this Court, shows that such an accused did not try to abscond, hence there is no need for surety bonds.

13. 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 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

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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.

b) 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.

c) 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.

d) 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.

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e) 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.

14. Given the gravity of accusations and the heinous nature of the offence, the petitioner shall surrender all weapons, firearms, ammunition, if any, along with

the arms license to the concerned authority within 30 days from today and inform the Investigator about the compliance. However, subject to the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back in case of acquittal in this case.

15. The petitioner need not remain present in this Court during the petition's

pendency unless directed by this Court to do so.

16. 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.

17. 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, it shall always be permissible to the respondent to apply for

cancellation of this bail. It shall further be open for any investigating agency to bring it to the notice of the Court seized of the subsequent application that the accused was earlier cautioned not to indulge in criminal activities. 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.

18. 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.

19. 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.

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

the investigating agency from further investigation per law.

21. 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 complainant

and the victim, at the earliest, and not later than two days. In case the victim notices stalking or any violation of this order, she may either inform the SHO of the concerned Police Station or the Trial Court or even to this Court.

22. 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.

23. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.

24. In the facts and circumstances peculiar to this case, the petition is allowed in

the terms mentioned above.

25. 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 along with case status

from the official web page of this Court and attest it to be a true copy. In case the Investigators want to verify the authenticity, they can also verify its authenticity and may download and use the downloaded copy.

Copy Dasti.

Anoop Chitkara, Judge.

July 16, 2021 (ks).