Vikram Singh vs State Of Himachal Pradesh
2023 Latest Caselaw 16020 HP

 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                       Cr.M.P. (M) No. 1371 of 2023

                                                        Date of decision: 11.10.2023

Vikram Singh.                                                                       ...Petitioner.
                                              Versus
State of Himachal Pradesh.                                                          ...Respondent.

Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.

Whether approved for reporting?1

For the Petitioner.                      Mr.N.S. Chandel, Senior Advocate, alongwith
                                         Mr.Rajesh Kumar, Mr.Kshitij Thakur and
                                         Mr.Vishal Verma, Advocates.

For the Respondent:                      Mr.Manoj Chauhan, Additional Advocate
                                         General for respondent No. 1-State.

                                         Mr.Shrawan     Dogra,   Senior  Advocate,
                                         alongwith    Mr.Yudhvir   Singh   Thakur,
                                         Mr.Rakesh Sharma and Mr.Manik Sethi,
                                         Advocates,    for   respondent   No.   2-
                                         complainant.



                    Vivek Singh Thakur, Judge (Oral)

Petitioner has approached this Court, invoking provisions of

Section 439 Code of Criminal Procedure (in short 'Cr.P.C.'), seeking bail in

case FIR No.143 of 2019, dated 12.9.2019, registered in Police Station

Manali, District Kullu, H.P. under Sections 376, 506 of the Indian Penal

Code (hereinafter referred to as the "IPC") and Section 3(1) of the Schedule

Caste & Schedule Tribe (Prevention of Atrocities Act), 1989 (hereinafter

referred to as 'SC&ST Act).

2. Status report stands filed. Record was also made available.

Records of Cr.MMO No. 442 of 2022, titled Vikram Singh Vs. State of H.P. &

others, filed on behalf of petitioner under Section 482 Cr.P.C. for quashing

Whether the reporters of the local papers may be allowed to see the Judgment? Yes

FIR as well as proclamation order dated 28.8.2020, pending adjudication in

this High Court and CWP No. 3987 of 2019, titled as Nirmala Devi Vs. State

of H.P. & others, decided on 22.5.2023, were also requisitioned and

perused. Learned counsel for the complainant has also placed on record

daily order sheets of CWP No. 3987 of 2019 and other documents with

regard to termination of marriage of victim with Gagandeep Joshi.

3. Facts emerging from the material available are that the

petitioner was residing in Australia for his studies, on study VISA, and being

member of a farmer's family, was also running a Taxi as part time job to

raise money in order to live in Australia. Lastly, petitioner was residing at

64, Angelwing Street, The Ponds NSW 2769 Sydney, Australia. Prior to

2019, he was residing at 28, Woolgunyah Parkway Flinders, NSW, Sydney.

Complainant met petitioner in a club in January, 2018 and thereafter they

developed intimacy and complainant started living in relationship with

petitioner in Parkway Flinders and they lived as such till June, 2019.

4. In July, 2019 a complaint dated 9.7.2019 received from

complainant through post in Police Station Sadar, Shimla on 15.7.2019 was

made basis for registration of FIR No. 151 of 2019 in Police Station, Sadar,

Shimla, wherein it was alleged that petitioner had committed an offence

under Section 376 and 506 of IPC by violating the person of complainant by

misrepresentation, extending false promise and assurances to marry her

and he had also uttered words attracting the provisions of SC&ST Act, as

complainant was belonging to a Scheduled Caste.

5. After carrying out investigation at Shimla, it was concluded by

the Police that no offence was committed by the petitioner at Shimla, but

there was material to investigate matter for commission of offence at Manali

and thereafter, the case was transferred by the District Magistrate, Shimla to

District Magistrate, Kullu, whereupon FIR No. 143 of 2019 was registered in

Police Station Manali on 12.9.2019. At that time, petitioner as well as

complainant were in Australia.

6. Later on complainant joined investigation and her statement,

including statement under Section 164 Cr.P.C., was recorded by the Police

and evidence for corroborating her allegation was collected and notices

were issued to the petitioner. As petitioner was not coming to India and thus

not available for joining further investigation in November, 2019, a petition

CWP No. 3987 of 2019 invoking provision of Article 226 of the Constitution

of India was filed by mother of complainant seeking direction to the

respondents-State to constitute a Special Investigation Team to investigate

the case FIR No. 151 of 2019, dated 20.7.2019, registered in Police Station,

Sadar, Shimla, alleging that Shimla Police had arrived at a wrong conclusion

that no offence was committed at Shimla and further that the complainant,

out of relations with petitioner, was in advanced stage of pregnancy,

whereas petitioner was denying his paternity and was not coming to India,

rather proclaiming that he would not come to India for want of extradition

treaty with Australia and would flee to some other country.

7. In CWP No. 3987 of 2019, petitioner was not arrayed as party.

After knowing about filing of Writ Petition, petitioner filed an application

through his father, by executing attorney in his favour to become party-

respondent in the Writ Petition.

8. During pendency of Writ Petition, for want of physical

appearance of the petitioner, the Writ Court passed orders on various

counts which resulted into declaration of petitioner as proclaimed offender

vide order dated 28.8.2020 and cancellation of his study VISA, and

petitioner was also declared fugitive under the applicable law including

Indian Passport Act, 1987 and ultimately petitioner came to India after

obtaining Emergency Travel Document and was arrested on 9th March, 2023

on arrival in India. Since then petitioner is in judicial custody. On

completion of investigation challan/chargesheet was filed in the Court at

Kullu on 22.9.2020.

9. In May, 2022, petitioner, through his father, has also preferred

Cr.MMO No. 442 of 2022 for quashing of FIR and also for setting aside of

proclamation order dated 28.8.2020. The said petition is pending

adjudication in this High Court. According to petitioner, complainant had

informed him that she was in Australia since 2009 and was living in Australia

as a Green Card Holder with her Australian boyfriend. Later on, she came

to reside with the petitioner by saying that her relations with her boyfriend

were broken and, therefore, she was in need of shelter for few days till

search for her own accommodation and during this time, relations between

the petitioner and complainant developed.

10. In January, 2019, petitioner came to India for vacation. In

February, 2019 complainant also came to India and contacted petitioner for

informing that she was also in India and then both of them visited different

places in India and went back to Australia in March, 2019.

11. As per petitioner, after reaching Australia, complainant planned

a trip to Bali (Indonesia) and requested the petitioner to accompany her.

Petitioner expressed his inability to spend money on such trips, but

complainant assured that she would be bearing all expenses and as such

they went to Bali on 3.4.2019 and came back to Australia on 11.4.2019.

12. According to petitioner on 19.5.2019, a message was received

by him that complainant was pregnant, but she did not want to have a child,

whereupon petitioner responded that if she was not comfortable then she

could abort the child and complainant also contacted the doctor, but

according to doctor, abortion was not possible and, therefore, complainant

suggested the petitioner to visit another country, India or Bali, for abortion,

wherever it was possible. On refusal of the petitioner to co-operate her in

this regard, complainant became upset and started shouting upon the

petitioner and asked him to leave the house. Whereafter, petitioner left the

house and started living with his friend in Blacktown Australia. Thereafter,

complainant started harassing the petitioner by making telephone calls,

messages extending threats to the petitioner asking him to come back

otherwise she would make complaint to the Police. When petitioner did not

succumb to her pressure, complainant on 24.6.2019 filed a complaint under

Crimes (Domestic and Personal Violence) Act, 2007 for apprehended

domestic violence order, in Australia.

13. After receiving the complaint, inquiry was conducted by the

Australian Police with video recording of the investigation and ultimately on

28.8.2020, application for apprehended violence order was withdrawn and

dismissed. According to petitioner, due to pendency of aforesaid Criminal

Case in Australia, he could not leave Australia till dismissal of the case on

28.8.2020.

14. In complaint filed in India in July, 2019, complainant had alleged

commission of rape by the petitioner by making false promise of marriage

and commission of offence under SC&ST Act by criminally intimidating and

using defamatory and derogatory words about caste of the complainant and

extending threats to her. As per this complaint, both of them met in January,

2018 and with an ulterior motive, petitioner started meeting her frequently

and expressed his willingness to marry her for which complainant, initially

was not ready, but for expression of too much love towards her with

communication that petitioner could not live without complainant and

assurance to talk with family of the victim in this regard and also introducing

her with his family, complainant developed intimacy with petitioner. Further

that petitioner came to India in January, 2019 and she came to India in

February, 2019 and they stayed in hotel Shangrilas' at New Delhi for two

days and thereafter stayed at Shirdi in a hotel for one day, two days in

Aurangabad, and the petitioner tried to develop physical relations with

complainant, which was resisted by her by saying that as per tradition such

relations should be after marriage, but the petitioner told that he had been

considering her as his wife and advised her also to consider him as her

husband and promised that very soon their marriage shall be solemnized,

for which they had come to India and thus convinced the complainant to

develop physical relations under the belief that petitioner was her husband

and thereafter on many occasions and different places, petitioner violated

her. Petitioner also met brother and mother of complainant in India and both

of them i.e. petitioner and complainant went to Manali together alongwith

brother of complainant and his fiancée and stayed there for two days, i.e.

22.3.2019 and 23.3.2019, where also petitioner committed sexual

intercourse with her. They also stayed at Chandigarh for one day, where

petitioner met her mother and expressed his intention and willingness to

marry complainant with assurance that he was going to talk with his family

very soon. According to complaint, petitioner also stayed at parental house

of complainant at Shimla and during that stay also when her mother left the

house for job and brother of complainant was not available, petitioner

violated her person by making her to believe that he was her legal husband

and despite her resistance he did not stop violation of her person, at her

parental house of Shimla.

15. According to complaint, complainant returned to Sydney in

March, 2019 and thereafter it was petitioner who planned a trip to Bali

(Indonesia) and they went to Bali from 3.4.2019 to 11.4.2019 and entire

expenses were incurred by complainant. At Bali also, petitioner violated her

person and pretended the couple as husband and wife in Bali. After

returning to Australia, complainant made several requests to the petitioner to

arrange marriage and in response petitioner assured her that within one or

two months marriage or roka ceremony will be organized with consent of his

family.

16. According to complaint, in May, 2019, complainant on account

of ailment went to the doctor and during medical examination she came to

know that she was pregnant from the loins of the petitioner and the said fact

was intimated to the petitioner with request to arrange marriage at the

earliest, but attitude of the petitioner was hostile and he expressed that their

relation was only for fulfilling the lust of sex and he would never solemnize

marriage with her and petitioner forced the complainant to abort the child,

whereupon complainant was shocked but again requested petitioner to

solemnize marriage, however in response thereto, petitioner assaulted,

abused, harassed and humiliated the complainant regarding which

complainant lodged a complaint with Australian Police which was pending

investigation at the time of submitting the complaint to the Police at Shimla.

It was stated in the complaint preferred at Shimla that petitioner was

extending threats to kill complainant, her mother, her family members with

open refusal to accept the complainant and her unborn child and mounting

pressure to abort the child. On the basis of aforesaid complaint, FIR was

registered in Shimla, referred supra, which on transfer to Manali was

registered.

17. Record of complaint filed by the complainant in Australia is also

available in the file of Cr.MMO No. 442 of 2022. FIR in India was registered

subsequent to lodging of complaint by the complainant with Australian

Police in June, 2019. In Criminal proceedings in Australia, it was claimed by

complainant that both of them, petitioner and complainant, were living

together in relationship since last 1 and ½ year (i.e. January 2018) and she

was pregnant at that moment out of said relationship and further that

petitioner was not happy with pregnancy and, therefore, pressurized the

complainant to terminate the pregnancy and she tried to terminate the same,

but in followup checkups she was again confirmed pregnant and they were

trying another attempt for termination, but when complainant refused for

termination of pregnancy, petitioner became upset and angry and tried to

strangulate her and pushed her and started threatening her and since then

they were not talking to each other much and on Wednesday she moved

out, and the petitioner had approached her family in India and was intending

to create trouble for them as well as the complainant. The complainant also

claimed that she was a single girl and as per Indian culture single girl is not

supposed to carry pregnancy and, therefore, she was pressing the petitioner

to solemnize marriage, whereupon petitioner became aggressive and

refused to marry her and became violent.

18. The aforesaid complaint, in Australia, after conducting inquiry,

was placed before the Magistrate. In statement by the petitioner in

response to the complaint, petitioner claimed that he never gave any

suggestion regarding termination of pregnancy and every decision, either to

carry pregnancy or to terminate the same, was of complainant and was

acceptable to him and it was complainant who was not interested to carry

child and was planning to terminate the same and further that complainant

had made a call to his parents and brother in India and extended threats by

saying that in case petitioner did not live with her, she would file a case

against him in India too. In his statement, petitioner had submitted that they

were in domestic relationship since March, 2018.

19. It is claim of the petitioner that complainant was not a single girl,

but was a married lady, who had been married twice. Firstly to Lakhvir

Singh on 20.7.2008 and the said marriage was dissolved on 23rd May, 2015

through a divorce order passed by the Federal Court of Australia in File No.

(P) PAC 1061 of 2015 pertaining to the marriage of Lakhvir Singh and

Gaurvi Gharu (complainant).

20. A certificate issued under Hindu Marriage Act (Rule 5A) has

also been placed on record indicating that marriage between Lakhvir Singh

and complainant was solemnized on 20.7.2008 at Jandiala, District

Jalandhar, for registration of which application was made on 28.7.2008.

21. Copy of another marriage certificate under Hindu Marriage Act

(Rule 10) has also been placed on record to established that on 5.9.2015

marriage of complainant Gaurvi Gharu was solemnized with Gagandeep

Joshi at Prachin Mandir Sidh Baba Balak Nath Ji Garshankar in District

Shahid Bhagat Singh Nagar, Punjab and application for registration whereof

was submitted on 8.9.2015 and it was registered on 17.9.2015. The

aforesaid facts with regard to earlier marriages of the complainant have not

been denied, instead a photocopy of divorce order passed under Family

Law Act, 1975 by Federal Court of Australia in File No. (P) PAC 3457/18

with respect to marriage between Gagandeep Joshi and Gaurvi Gharu

dissolving their marriage on 4.5.2019, has been placed on record, claiming

that in June, 2019, at the time of submitting the complaint to Australian

Police, complainant was single girl.

22. As per petitioner, for registration of Criminal Case of Domestic

Violence, he was not able to leave Australia till August, 2020 and in the

meanwhile International Flights were not available easily for spread of

Covid-19 and later on for orders passed by the Division Bench of this High

Court in CWP No. 3987 of 2019, Passport of the petitioner was cancelled

and he was treated as a fugitive and thus he had to manage return to India

by obtaining Emergency Travel Document, and further that during this

period he was also pursuing his study and that due to Covid-19 flights were

also not easily available, he could not come to India before March, 2023.

Further that in March, 2023 also petitioner himself had informed, about his

travel, to the Police by supplying details of Flight and its scheduled arrival at

Delhi, whereupon Police was able to arrest him at Airport itself.

23. It is claimed by the petitioner that at the time of lodging FIR,

submitting complaint for registration of FIR, petitioner was residing at

Australia, as also stated in the complaint, on the basis of which FIR has

been registered. Police as well as Court was well aware about his place of

residence and despite that summons were issued at his local address of

India, i.e. VPO Urlana Khurd, Tehsil Madlauda, District Panipat (Haryana)

and it was reported that petitioner was not available and instead of issuing

notices/summons to the petitioner through Embassy, petitioner was declared

proclaimed offender. Further that whereabouts of petitioner alongwith

documents were disclosed by his father in application under Order 1 Rule 10

CPC filed in CWP No. 3987 of 2019 in September, 2021 and, therefore,

Police was also having address of the petitioner as supplied through father

in CWP No. 3987 of 2019. It has been further submitted on behalf of

petitioner that there was no allegation of cheating and caste in complaint

filed in Australia, but in contrast such allegations have been included in the

complaint sent to the Superintendent of Police, Shimla by post. Further, in

both complaints, there is non-disclosure of marital status of the complainant

and despite supplying copies of certificates of marriages of the complainant,

Investigating Officer did not look into and investigate on this line.

24. According to petitioner entire facts and circumstances on the

record clearly indicate that the complaint in India has been lodged for

mounting pressure on the petitioner and his family to solemnize marriage

with complainant, to which petitioner never promised. It has been further

submitted that as per FIR, petitioner developed physical relations under the

false promise to solemnize marriage, in January, February and March, 2019,

whereas it is admitted case of the complainant, in complaint of Domestic

Violence preferred in Australia that the petitioner and the complainant had

been living in relationship since January-March, 2018 and even in case it is

considered that second marriage of complainant was dissolved in May,

2019, even then complainant was not a single since January, 2018 till May,

2019 during which she had been living in relationship with the petitioner and,

therefore, there was no question of misrepresenting the complainant with

false promises to marry as she had already been married to someone else.

25. During pending investigation child was born and on matching

DNA profiling of the child with the petitioner, it has been found that petitioner

is biological father of the child.

26. Learned counsel for the petitioner has submitted that even

giving birth to the child of the petitioner by complainant, it is not established

that there was misrepresentation or false promise to solemnize marriage

with the complainant by the petitioner as at the time of alleged development

of relations between the petitioner and the complainant, even if it is taken to

be January to March, 2019 only, there was no occasion for solemnization of

marriage of complainant with the petitioner because complainant at that time

was not single, but was a married wife of Gagandeep Joshi and further that

as admitted in the complaint under Domestic Violence, complainant was in

relationship with the petitioner since January, 2018 and for about one year

there was no complaint or request by the complainant to solemnize marriage

with her as she was knowing that she was already married to someone else.

27. It has been further submitted that even if it is considered that

relationship between the parties was to the extent that they were intending

to marry with each other, then also for broken relationship, marriage was not

solemnized, but it could not be presumed that there was a false promise to

marry with intention to develop physical relations by misrepresenting and

assuring to solemnize the marriage and, therefore, it has been claimed that

petitioner is entitled for bail.

28. Though petitioner has preferred Cr.MMO No. 442 of 2019 for

setting aside order dated 28.8.2020 declaring him proclaimed offender

alongwith prayer for quashing of FIR, but as the petitioner has been arrested

during pendency of the said petition, prayer for setting aside the order dated

28.8.2020 has become infructuous because declaration of proclaimed

offender is made for assuring presence of an accused and in present case

petitioner has made himself available by informing his arrival in India to the

Police and after his arrest the order dated 28.8.2020 has lost its relevancy

and efficacy. After arrest of the petitioner, it was duty of Arresting Officer to

inform the concerned Police Station about arrest of the petitioner.

Declaration of as proclaimed offender on availability of accused for trial is

rendered otiose and ceases to operate.

29. Vide order dated 22nd May, 2023, CWP No.3987 of 2019 has

been disposed of by recording that since the petition has achieved its

purpose, therefore, the same is rendered infructuous.

30. Learned counsel for the petitioner to substantiate his plea for

enlarging the petitioner on bail has placed reliance upon Cr. Appeal No.

2322 of 2010, titled as Deepak Gulati Vs. State of Haryana (Supreme

Court); Cr. Appeal No. 175 of 2013, titled as Prashant Bharti Vs. State of

NCT of Delhi (Supreme Court); Cr.MMO No. 153 of 2016, titled as

Dushyant Kumar Vs. State of Himachal Pradesh & another (High Court

of Himachal Pradesh); Criminal Appeal No. 257 of 2023, titled as Naim

Ahamed Vs. State (NCT of Delhi) (Supreme Court); Criminal Appeal No.

1030 of 2018, titled as Salim Abdul Shaikh Vs. The State of Maharashtra

(Bombay High Court); Criminal Appeal No. 1165 of 2019, titled as Pramod

Suryabhan Pawar Vs. The State of Maharashtra & another (Supreme

Court); Criminal Revision Application No. 434 of 2021, titled as Rohit

Dinanath Ray Vs. State of Gujarat (High Court of Gujarat); Criminal Misc

Anticipatory Bail Application No. 7653 of 2021, titled as Vinay Kumar

Chaurasiya Vs. State of U.P. and another (Allahabad High Court);

Criminal Appeal No. 1231 of 2022, titled a Shambhu Kharwar Vs. State

of Uttar Pradesh & another (Supreme Court); Cr. MC No. 1819 of 2019,

titled as Tino Thankachan Vs. State of Kerala (Kerala High Court);

Criminal Misc. Bail Application No. 23551 of 2023, titled as Vivek Kumar

Maurya Vs. State of U.P. and 3 others (Allahabad High Court); Cr. MC No.

4933 of 2021, titled as Shahul Satheesh Vs. State of Kerala & another

(Kerala High Court); Cr. M.C. No. 9312 of 2019, titled as Anilkumar Vs.

State of Kerala (Kerala High Court); Cr. Misc. Petition (Main) No. 2315 of

2021, titled as Mohan Lal Sharma Vs. State of H.P. (Himachal Pradesh

High Court); Criminal Petition No. 544 of 2021, titled as Prajith R. Vs.

Smt. XXXX and another (Karnataka High Court); and Pramod uryabhan

Pawar V. State of Maharashtra and another, (2019) 9 SCC 608 (Supreme

Court).

31. Mr.Shrawan Dogra, Senior Advocate, under instructions, has

argued that bail application preferred by the petitioner has been dismissed

by the Trial Court by passing detailed order dated 27.5.2023 by considering

all relevant factors and the issues raised by the petitioner, and this Court is

not Appellate Court in bail application and reasons stated in the order dated

27.5.2023 are relevant for adjudication of present application which have

been rightly recorded by the Trial Court. Further that keeping in view the

past conduct of the petitioner, there is every possibility of petitioner fleeing

from justice by jumping over the bail, if granted to him, and that in the bail

application preferred before the Trial Court, petitioner had alleged that

complainant was a lady of easy virtue and, therefore, there was possibility of

conceiving the child from someone else, whereas on matching of DNA

profile, it stands proved that the petitioner is biological father of the child of

the complainant, which indicates that petitioner was trying to shirk from his

responsibility, despite the fact that he had developed relations with the

complainant by extending false promises to marry. It has been submitted

that for considering the bail application, the Court is not expected to go into

detailed examination of evidence and elaborative documents, but has to

arrive at a prima facie conclusion whether bail has to be granted or not,

particularly where an accused, like petitioner, is involved in commission of a

serious heinous offence. Learned arguing counsel on behalf of complainant,

has further contended that bail is a rule where there is no likelihood of

absconding of an accused during the course of trial, but like present case

where presence of petitioner has been procured with great difficulty with

indulgence of the High Court in CWP No.3987 of 2019, that too after about

four years of registration of FIR, there is every likelihood that petitioner after

his enlargement on bail would not be available during trial and there is

reasonable apprehension of absconding of petitioner and tampering with the

evidence and extension of threats to the complainant and/or other witnesses

and it would not be possible to secure presence of the petitioner at the time

of trial.

32. It has been contended on behalf of complainant that, as also

observed by the trial Court, there is nothing on record to suggest that

Medical Officers/Experts, who examined and treated the complainant and

were instrumental in getting samples for matching DNA profiling and arriving

at conclusion stated in RFSL report, were having any animosity with the bail

petitioner in order to implicate him falsely in the case or having proximity

with complaiannt. Rather RFSL report reveals that allegations leveled by

the complainant upon the petitioner are true and correct.

33. It has been further contended by learned arguing counsel for

the complainant that in order to shield the society from the hazards of

commission of serious crimes and to decrease the potentiality of repeating

such crimes, present petition deserves to be dismissed, because, keeping in

view the nature and manner of the offence committed by the petitioner, right

of individual/personal liberty shall not prevail over the societal interest.

34. It has also been contended that keeping in view the

consequences upon the society, on grant of bail in cases like present one,

which are grave offences, bail petition deserves to be dismissed, as the

matter under reference is of sensitive nature, having grave impact upon the

society, as the society has a vital interest in grant or refusal of bail because

every offence is offence against the State and, therefore, an order granting

or refusing bail must reflect perfect balance between the conflicting interest,

namely, sanctity of individual liberty and the interest of the society and in

present case the balance of convenience is in favour of interest of society.

35. It has been contended that past conduct at the time of filing

anticipatory bail is also relevant to reject the bail application.

36. It has been contended that there is neither appreciation nor mis-

appreciation by the Trial Court which may be termed to be contrary to law

and the Trial Court has passed a detailed order by taking into consideration

all aspects and, therefore, present petition deserves to be rejected.

37. By referring various daily orders passed by Division Bench of

this High Court in CWP No. 3987 of 2019, learned arguing counsel for

complainant has contended that there is more than sufficient material on

record to construe the intention and conduct of the petitioner for commission

of offence, disentitling him for release on bail.

38. To substantiate his claim, learned arguing counsel for the

complainant has placed reliance upon State of Maharashtra Vs. Captain

Buddhikota Subha Rao, AIR 1989 SC 2292; Prahlad Singh Bhati Vs.

NCT, Delhi, (2001) 4 SCC 280; Kalyan Chandra Sarkar Vs. Rajesh

Ranjan alias Pappu Yadav and another, (2004) 7 SCC 528; Vinod

Bhandari Vs. State of Madhya Pradesh, (2015) 11 SCC 502; P.

Chidambram Vs. Directorate of Enforcement, (2010) 13 SCC 791 and

Jaibunisha Vs. Meharban and another, (2022) 5 SCC 465.

39. Learned Additional Advocate General submits that there is

ample material on record to construe that there was allurement on the part

of the petitioner. Petitioner was well aware about the family of the victim

and was well connected to them and it was possible only if petitioner had

made mis-representations to marry their daughter and DNA profile report

has established that petitioner had violated person of complainant at various

places in India including Himachal Pradesh at Shimla and Manali and

thereafter he moved to Australia and never came back to India, which shows

that he was intentionally misrepresenting the complainant to marry her and,

therefore, he is not entitled for bail.

40. Learned arguing counsel for the petitioner, in rebuttal, has

placed reliance upon pronouncement of this Court in Vijay Narain & others

Vs. State, 1976 C.L.R. (HP) 68, wherein it has been held that jurisdiction of

the High Court to grant bail under Section 439 Cr.P.C. is independent of its

revisisional jurisdiction under Section 397 Cr.P.C and on rejection of bail

application by Sessions Court, similar application before the High court is

maintainable.

41. Learned counsel for the petitioner has re-submitted that there

are allegations in the complaint filed in India that petitioner had violated

person of complainant by giving false promises to marry, resulting into

consent by the complainant on the basis of mis-representations, however,

no such allegations have been made by the complainant in the complaint

preferred for domestic violence in Australia, as there is not even a whisper

about violation of person by the petitioner by giving false promise to marry.

The whole case in Australia was that petitioner and complainant were living

in relationship since 18 months, i.e. from January, 2018. Whereas to the

contrary, in complaint filed in India, the allegations are that relations have

been alleged to be developed in January, 2019 on the basis of false promise

to marry.

42. It has been further submitted that the conduct of the petitioner is

to be assessed on the basis of surrounding circumstances, i.e. pendency of

Criminal Case in Australia as an obstacle to leave Australia, situation arising

on account of Covid-19 pandemic and its impact on the International Flights,

cancellation of Passport of the petitioner by order of the Court, treating him

fugitive, and thereafter time consumed in getting Emergency Travel

Document to come back to India, which are relevant factors preventing the

petitioner from coming to India and submitting himself to the Court and in

case petitioner would have intention to flee from justice, he would not have

filed anticipatory bail application by engaging counsel from Chandigarh,

which was dismissed on account of mischief played by the said counsel,

whereas petitioner had never instructed to do so, as petitioner was not

aware about the procedure for approaching the Court to seek anticipatory

bail and for any misconduct on the part of Advocate, petitioner should not

suffer.

43. Learned arguing counsel for the petitioner to substantiate the

plea that due to Covid-19 pandemic, International Flights are not easily

available, has referred guidelines dated 21.11.2022 issued by Ministry of

Health and Family Welfare to the Government of India and order dated

21.11.2022 issued by Ministry of Civil Aviation, Government of India.

44. It has been further contended by learned arguing counsel for

the petitioner that it is not a case where petitioner or his family members

were shirking from facing the investigation or other litigation, rather

complainant, through her mother, had tried to obtain an order

disadvantageous to the petitioner, but without arraying the petitioner as

party and it was petitioner only, who, through his father, filed an application

to become party in the Writ Petition. Therefore, there is no possibility of

petitioner absconding or fleeing from justice. It has been further submitted

that any stringent condition as deemed fit by this Court, to ensure presence

of the petitioner, may be imposed. It has been submitted that petitioner

undertakes to abide by any condition imposed upon him for enlarging him on

bail including furnishing local surety as well as surety of some relative.

45. It has been argued on behalf of petitioner that proclamation

order, issued after issuing summons/warrants on address where petitioner

was not residing despite knowning the said fact that he, at the relevant point

of time, was residing in Australia, is not sustainable in the eye of law and for

such proclamation, it cannot be construed that petitioner would abscond or

jump over the bail in case he is enlarged on bail particularly when petitioner

had been trying to seek anticipatory bail to participate in and joining

investigation. The conduct of the petitioner and his family reflects otherwise,

indicating that they are law abiding persons ready to submit them to the

Court as well as law.

46. So far as law cited by either side is concerned, there is no

quarrel or dispute about the ratio propounded in these judgments. For

considering a bail application, law has to be applied in the given facts and

circumstances. In an offence of similar nature, for different facts and

circumstances, bail can be granted or rejected, considering the factors and

parameters required to be considered for adjudication of bail application.

47. Taking into consideration the entire facts and circumstances,

but without going into merits of rival contention of parties, but taking into

account factors and parameters required to be considered at the time of

adjudication of bail application as propounded by the Courts, including the

Supreme Court, I am of the considered opinion that at this stage petitioner

may be enlarged on bail.

48. Accordingly, present petition is allowed and petitioner is

ordered to be enlarged on bail, subject to his furnishing personal bond in the

sum of ,00,000/- with two sureties each in the like amount, one of which

shall be local surety and another shall be relative of the petitioner, as

undertaken by him, to the satisfaction of the trial Court and upon such

further conditions as may be deemed fit and proper by the trial Court,

including the conditions enumerated hereinafter, so as to assure presence

of the petitioner at the time of trial:-

(i) That the petitioner shall make himself available to the Police or any other Investigating Agency or Court in the present case as and when required;

(ii) that the petitioner 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 him/her from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;

(v) that the petitioner shall not misuse his liberty in any manner;

(vi) that the petitioner shall not jump over the bail;

(vii) that in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by prosecution;

(viii) that the petitioner shall keep on informing about the change in address, landline number and/or mobile number, if any, for his availability to Police and/or during trial; and

(ix) the petitioner shall not leave India without permission of the Court.

49. It will be open to the prosecution to apply for imposing and/or to

the trial Court to impose any other condition on the petitioner, enlarged on

bail, as deemed necessary in the facts and circumstances of the case and in

the interest of justice and thereupon, it will also be open to the trial Court to

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

necessary in the interest of justice.

50. In case the petitioner violates any conditions imposed upon him,

his 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.

51. 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 18.03.2013.

52. Observations made in this petition hereinbefore shall not affect

the merits of the case in any manner and are strictly confined for the

disposal of the bail applications.

53. The parties are permitted to produce copy of order downloaded

from the High Court website and trial/concerned Court shall not insist for

certified copy of the order, however, if required, passing of order can be

verified from the High Court website or otherwise.

The petition stands disposed of in the aforesaid terms.

                                                                         (Vivek Singh Thakur),
  th
11 October, 2023                                                                      Judge.
       (Keshav)




SUBHASH           Digitally signed by SUBHASH CHAND DHIMAN
                  DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH,
                  OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA,

Phone=3418061207364d8c002725dfc58ff116f678c3d39 289db29b992cce875905119, PostalCode=171001,

CHAND S=Himachal Pradesh, SERIALNUMBER=5ce240fac0e1267843f29509683d09a 9912af10edc4e6cd2ed5d4a8c30134c1b, CN=SUBHASH CHAND DHIMAN Reason: I am the author of this document

DHIMAN Location:

Date: 2023-10-11 17:02:27