Ashwani Kumar vs State Of H.P
2021 Latest Caselaw 2864 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.920 of 2021 Reserved on: May 25, 2021

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Date of Decision: May 31, 2021.

Ashwani Kumar ...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 : Mr. Vijender Katoch, Advocate.

For the respondent: Mr. Nand Lal Thakur, Addl. Advocate General and Mr. Ram Lal Thakur, Assistant Advocate General for the State.

                             THROUGH VIDEO CONFERENCE




        FIR No.    Dated         Police Station                      Sections





        18     of 3.2.2021       Damtal, District Kangra, H.P.       376, 147, 149, 323,
        2021                                                         504, 506 IPC.





    Anoop Chitkara, Judge

The petitioner, who is incarcerating since 1.3.2021 for allegedly commission of offence of rape of his married neighbor at various instances, has come up before this Court seeking regular bail.

2. Earlier, the petitioner had filed Bail Application No.124-D/XXII/2021 before learned Additional Sessions Judge-1, District Kangra at Dharamshala, which was

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

rejected vide order dated 4.5.2021 on the grounds that the bail petitioner has approximately 10 cases registered against him, including conviction in one of the cases and, therefore, was of criminal nature and could threaten the prosecution

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witnesses and that the statement of the accused is to be recorded before the Court.

3. In para 17 of the bail petition, the petitioners claims that he has a blemished criminal record and there have been numerous cases registered against him in the past also including conviction in one case.

4. Briefly, the allegations against the petitioner are that on 3.2.2021, the prosecutrix came to the Police Station and moved a written application stating therein that she was living happily in her matrimonial house, however, her husband

namely Naresh Kumar used to beat her every night. She remained very disturbed and quite unhappy. In the meantime, her neighbor Ashwani Kumar came and told her that in spite of living with Naresh Kumar with beating and torturing, she should live with him and that he will keep her happy. The prosecutrix fell for the words of

the accused and started living with him. She further states that the accused

continuously sexually assaulted her by taking her to hotels everyday. Thereafter, the accused took her to live with his mother and she started living there happily. One day, suddenly one Manga (brother of Dara) and his two daughters namely, Kajal and

Paddu, and Lakha and Tittu, came to their house and started beating her. They kicked her out of her house and took Dara with them. It is further stated that the prosecutrix then reached Pathankot where a Police Official helped her and made her

stay in a hut near the truck union and she started living there. She stated that the

aforesaid persons kept sending messages to her that if she took any action against them then they will kill her. She requested the police to take appropriate action against the accused persons. Based on these allegations, the Police registered the

FIR mentioned above.

5. Ld. Counsel for the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

6. 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.

7. In Sunny Kapoor v State of HP, CrMPM 2168 of 2020, (Para 9), this Court after considering the relevant judicial precedents observed that the pre-trial

incarceration needs justification depending upon the offense's heinous nature, terms of the sentence prescribed in the statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, criminal history of the accused,

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and doing away with the victim(s) and witnesses. While considering bail, the Court

has to maintain a balance between all stakeholders and safeguard the interests of the victim, the accused, society, and the State. The primary purpose of bail is to secure the presence of the accused to attend the trial.

8. Reasons for superseding criminal history are that the criminal history pertains to the offenses under the NDPS Act and theft etc. In contrast, the present allegations are more like sex exploitation under false promises. The accused was her neighbor,

and the victim would be aware of his criminal antecedents. Despite that, she agreed to stay with him. Thus, criminal history will not be an obstacle in granting bail.

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. A perusal of the allegations made in the complaint reveals that the petitioner, being the victim's neighbor, was aware of her plight in her matrimonial house. He offered her safe refuge and happy life, to which the victim agreed. She was a married

lady and must be aware of the petitioner's intentions by offering her shelter. The

criminal history of the petitioner points out his involvement in drugs. Given this, he would take the victim to various hotels where they indulged in coitus. There is no allegation that the accused forced himself upon her, although she did allege that after

some sexual acts, he recorded the same and blackmailed her into continuing having sex. However, all this would depend upon her expressions in those recordings, which trial Court would be better positioned to do. At present, this Court is concerned only with denial or grant of bail. An analysis of the entire evidence does not justify further incarceration of the accused, nor will it achieve any significant purpose. Without commenting on the case's merits, in the given facts, allegations, and the circumstances peculiar to this case, the petitioner, makes a case for release on bail.

11. 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.

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

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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.

13. 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/-), and shall furnish two sureties of Rs. Twenty-five thousand (INR 25,000/-) each, 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.

14. In the alternative, the petitioner may furnish aforesaid personal bond and fixed deposit(s) for Rs. Ten thousand only (INR 10,000/-), made in favour of "Chief Judicial Magistrate, District Kangra, 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., 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.

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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.

15. 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.

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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.

16. The petitioner shall surrender all firearms, ammunition, if any, along with the arms license to the concerned authority within 30 days from today. However, subject to the provisions of the Indian Arms Act, 1959, the petitioner shall be entitled

to renew and take it back in case of acquittal in this case.

17. 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.

18. The petitioner must stay far away from the place of occurrence while on bail. Thus, the petitioner shall not enter within a radius of one kilometer from her house. This Court is imposing this condition to rule out any discomfort to the victim. Reference be made to Vikram Singh v Central Bureau of

Investigation, 2018 All SCR (Crl.) 458); and Aparna Bhat v. State of Madhya Pradesh, 2021 SCC Online SC 230.

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

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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.

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, and not later than two days. 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.

26. There would be no need for a certified copy of this order for furnishing bonds. Any Advocate for the petitioner can download this order along with the case status

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

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bonds.

The petition stands allowed in the terms mentioned above. Copy Dasti.

Anoop Chitkara, Judge.

May 31, 2021 (ks).

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