_________________________________________________ vs State Of Himachal Pradesh
2023 Latest Caselaw 15057 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr.MP(M) No.2000 of 2023

Reserved on 04.09.2023 Date of Decision: 29.09.2023

_________________________________________________ Rajak Mohammad ....Petitioner Versus

State of Himachal Pradesh ...Respondent _________________________________________________ Coram

Hon'ble Mr. Justice Sushil Kukreja, Judge

Whether approved for reporting?1 ________________________________________________ For the petitioner: Dr. Rakesh Kumar Parmar, Advocate.

For the respondent:

Mr. B.N. Sharma, Additional Advocate General.

________________________________________________

Sushil Kukreja, Judge

The instant bail application has been filed by the

petitioner under Section 438 of the Code of Criminal

Procedure (Cr.P.C.) for grant of anticipatory bail, in the event

of his arrest, in case FIR No. 38/2023, dated 10.05.2023,

under Sections 354-A(1)(i) & 376 of the Indian Penal Code

(for short, 'IPC'), Section 6 of the Protection of Children from

Sexual Offences Act, 2012 (for short, 'POCSO Act') and

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

Section 67(B) of the Information Technology Act (IT Act),

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registered at Police Station Tisa, District Chamba, H.P.

2. Briefly stated the facts of the case, as per the

status report filed by the respondent-State, are that on

10.05.2023, the complainant lodged a written complaint

before the police, alleging therein that for the last 2 days, a

video of his daughter (the victim), who was a student of

10+2, had gone viral and the said video had been made viral

by the petitioner, who was a driver by profession. He allured

the victim and exploited her on the pretext of giving her lift in

his car. When the complainant came to know about this, he

warned the petitioner, but he did not mend his ways. On the

basis of the said complaint, the police registered a case

against the petitioner. During the course of investigation, it

was revealed that the petitioner had committed repeated

sexual intercourse with the victim against her wishes.

3. The bail application has been filed by the

petitioner on the ground that he is innocent and has been

falsely implicated in the present case. Learned counsel for

the petitioner contended that the petitioner has no concern

with the commission of the alleged offence and his name has

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been wrongly dragged in the FIR question. He further

contended that since the investigation of the case is complete

and the custodial interrogation of the petitioner is not required,

therefore, it is prayed that the petitioner be enlarged on bail.

4. Per contra, the learned Additional Advocate

General has opposed the application on the ground that the

petitioner is involved in a serious offence of rape and

keeping in view the gravity of the offence, he is not entitled to

be released on bail. He further contended that the custodial

interrogation of the petitioner is required in this case as the

petitioner is not cooperating with the investigating agency.

5. I have heard learned counsel for the petitioner as

well as the learned Additional Advocate General and also

gone through the record of the case.

6. It is a settled law that the anticipatory bail can be

granted only in exceptional circumstances where the Court

is, prima facie, of the view that the petitioner has been falsely

implicated in the offence. Being an extraordinary remedy, it

should be resorted to only in a special case.

7. Although, it would be inappropriate to discuss the

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evidence in depth at this stage, because it may influence the

trial Court, but the evidence collected during investigation,

prima facie, indicates the involvement of the petitioner in a

serious offence of rape as he is alleged to have allured a

minor girl, who was aged about 16 years and 9 months, by

hiding his identity r and committed repeated sexual

intercourse with her against her wishes. He also made her

video viral in order to defame her and also threatened her

with dire consequences.

8. Once the allegations against the petitioner are of

such type, he cannot claim anticipatory bail as a matter of

right. It is a settled law that provisions for grant of

anticipatory bail under Section 438 Cr. P.C., are not to be

mechanically applied. Nature and gravity of the offence, the

position and status of the accused with reference to the

victim and witnesses, likelihood of the accused fleeing from

justice, possibility of the accused tampering with the

evidence and larger public interest are some of the

considerations which must weigh with the Court while

deciding the application for grant of anticipatory bail. Liberty

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of a citizen is indeed of a paramount importance, but at the

same time, fair and fearless investigation of case of a serious

nature is of no less importance. The Court shall refrain from

exercising its discretion in favour of the accused under

Section 438, Cr. P.C., if it adversely affects the investigation

and larger public interest.

9. The petitioner was granted interim bail, however,

as per the status report, he is not cooperating with the

investigating agency, as such, his custodial interrogation is

necessary for the proper investigation of the case.

10. Therefore, in view of the facts and circumstances

of this case, this Court does not find any exceptional ground

to exercise its discretionary jurisdiction under Section 438,

Cr.P.C. to grant him anticipatory bail and, as such, this Court

is of the view that the present anticipatory bail application

has no merit and is liable to be dismissed.

11. Accordingly, the present bail application is

dismissed and the interim protection granted to the petitioner

vide order dated 07.08.2023, stands withdrawn.

12. Before parting with this order, it is hereby clarified

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that the aforesaid observations made in this order, have

been made only for the purpose of considering the present

petition for anticipatory bail. Therefore, the same shall not

come in the way of the trial Court for considering the

application that may be filed by the petitioner for regular bail

or at the time of the trial and the trial Court concerned shall

not be influenced by the observations made hereinabove.

( Sushil Kukreja ) Judge

September 29, 2023 (VH)

3. During the course of investigation, the police

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recorded the statement of the victim under Section 161,

Cr.P.C, wherein she stated that due to the lockdown in the

year 2021, one day she alongwith one Bhanu and her

younger sister Shalu went to Government Hospital, Tisa and

when they were returning home from the hospital, the

grandfather of Bhanu hired the taxi of the petitioner at

Bhanjradu and they returned home in the said taxi.

Thereafter, when she used to come from home to school and

from school to home, the petitioner often started giving her lift

in his taxi and after 7-8 days, he took her phone number from

her facebook ID. The petitioner initially told her his name as

Raju from Kuthed and he also told that belonged to her

caste. The petitioner himself used to message on her

facebook and also reply from her facebook. He also used to

send the screen shots to her facebook and delete the chat

history. In the year 2021, while she coming from the school,

the petitioner had done a viral act in the video and at that

time she did not know when he made her video. Thereafter,

he talked with her for about six months on the mobile phones

of her parents and thereafter when she told about him to her

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friend Riya, she disclosed her that his name was not Raju,

but was Razzaq Khan and he belonged to her (Riya) religion.

Till that time, the petitioner had committed wrong act with her

thrice, firstly at Sakloga-II where a new road was being

constructed, secondly she did not remember the place and

thirdly at Helipad Bhanjradu. Lastly, he did the wrong act

with her in the winter of 2022. On the basis of said statement

of the victim, Sections 376, IPC, Section 6 of POCSO Act

and Section 67(B) of IT Act were also added in the case and

the petitioner-accused was arrested on 29.06.2023.

4. During further investigation of the case, the police

got recorded the statement of the victim under Section 164,

Cr. P.C, took into possession one DVD-R of the viral video

and the birth certificate of the victim was also procured, as

per which, the date of birth of the victim was 10.08.2006.