Himachal Pradesh High Court
Reserved On: 16.9.2024 vs State Of Himachal Pradesh on 1 October, 2024
2024:HHC:9416
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) No. 2 of 2024
.
Reserved on: 16.9.2024
Date of Decision: 01.10.2024.
Jagtar Singh ...Petitioner
Versus
State of Himachal Pradesh
Coram
r to ...Respondent
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Petitioner : Mr. Ashok Kumar Tyagi,
Advocate, vice Mr. Sanjeev
Kumar Suri, Advocate.
For the Respondent/State : Mr. Lokender Kutlehria,
Additional Advocate General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
seeking pre-arrest bail. It has been asserted that a false case was
registered against the petitioner vide FIR No. 23 of 2023, dated
27.12.2023, for the commission of offences punishable under
Sections 376 and 506 of the Indian Penal Code (IPC), at Women
Police Station, B.C.S., Shimla. The petitioner is innocent and he
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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has no connection with the commission of crime. As per the
prosecution case, the victim approached the petitioner and Ravi
.
Madara @ Ranbeer to work as an actress. Petitioner and Ravi
Madara were looking for some location for the shooting of a new
song. The victim said that she knew some beautiful places near
Shimla. The petitioner, Ravi Madara @ Ranbeer, Gurinder,
Raman Preet and the victim came to Shimla on 21.12.2023. They
returned to Chandigarh on 22.12.2023. The informant asked for a
flat in Mohali and threatened to falsely implicate the petitioner
in a rape case. The petitioner did not respond to the victim's
demands and she lodged a false FIR against him. The victim had
levelled allegations of rape previously against other persons and
demanded money. The present FIR has also been registered
against the petitioner for grabbing the money by blackmailing
him. The petitioner is a singer by profession and he apprehends
his immediate arrest. He would abide by the terms and
conditions, which the Court may impose. Hence, the petition.
2. The petition is opposed by filing a status report
asserting that the victim made a complaint to the police that the
petitioner took the victim to Ludhiana and thereafter to Shimla
for shooting video. The petitioner and the victim stayed at Hotel
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Holiday Inn in Shimla where he raped her. The police registered
an FIR and conducted the investigation. The victim and the
.
petitioner were medically examined and as per the latest status
report, the report of analysis shows that the DNA profiling of the
petitioner matched with the DNA profiling obtained from the
trousers of the victim. Human semen was detected on the
trousers and the underwear of the petitioner.
3. A separate reply was filed to the petition by the
Superintendent of Police, Shimla making a preliminary
submission regarding lack of maintainability. It was asserted
that the FIR was registered against the petitioner at the instance
of the victim. The police conducted the investigation and filed a
charge sheet against the petitioner. The petitioner has
committed a heinous crime. He can tamper with the evidence
and influence the witnesses in case of release on bail. The victim
had lodged three FIRs with various Police Stations for the
commission of rape. Therefore, it was prayed that the present
petition be dismissed.
4. A separate reply was filed on behalf of the informant
making preliminary submissions regarding lack of
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maintainability, the petitioner having concealed the material
facts from the Court and the petitioner having committed a
.
heinous offence. The contents of the petition were denied on
merits. It was asserted that the victim was taken to the hospital
where the petitioner threatened her not to disclose the fact
regarding physical relations. She was also taken to a private
medical clinic, where she was discharged with the advice of
complete bed rest. The petitioner abandoned the victim and
switched off his mobile phone. The medical evidence proves that
the petitioner had raped the victim. He is not entitled to pre-
arrest bail. Therefore, it was prayed that the present petition be
dismissed.
5. I have heard Mr. Ashok Kumar Tyagi, learned counsel
for the petitioner and Mr. Lokender Kutlehria, learned
Additional Advocate General for the respondent-State.
6. Mr. Ashok Kumar Tyagi, learned counsel for the
petitioner submitted that the petitioner is innocent and he was
falsely implicated. The victim had lodged a false FIR against
various persons and she compromised the matter after
obtaining money from them. The victim has filed a false FIR
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against the petitioner. Therefore, he prayed that the present
petition be allowed and the petitioner be released on pre-arrest
.
bail.
7. Mr Lokender Kutlehria, learned Additional Advocate
General for the respondent/State submitted that the petitioner
was involved in the commission of a heinous offence. He can
intimidate the witnesses and tamper with the evidence in case of
release on bail. Therefore, he prayed that the present petition be
dismissed.
8. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
9. It was laid down by the Hon'ble Supreme Court in P.
Chidambaram vs. Directorate of Enforcement 2019 (9) SCC 24 that
the power of pre-arrest is extraordinary and should be exercised
sparingly. It was observed:
"67. Ordinarily, arrest is a part of the procedure of the
investigation to secure not only the presence of the
accused but several other purposes. Power under Section
438 Cr.P.C. is an extraordinary power and the same has to
be exercised sparingly. The privilege of pre-arrest bail
should be granted only in exceptional cases. The judicial
discretion conferred upon the court has to be properly
exercised after application of mind as to the nature and
gravity of the accusation; the possibility of the applicant
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fleeing justice and other factors to decide whether it is a
fit case for grant of anticipatory bail. Grant of
anticipatory bail to some extent interferes in the sphere
of investigation of an offence and hence, the court must
.
be circumspect while exercising such power for the grant
of anticipatory bail. Anticipatory bail is not to be granted
as a matter of rule and it has to be granted only when the
court is convinced that exceptional circumstances exist to
resort to that extraordinary remedy."
10. This position was reiterated in Srikant Upadhyay v. State
of Bihar, 2024 SCC OnLine SC 282 wherein it was held:
"25. We have already held that the power to grant
anticipatory bail is extraordinary. Though in many cases
it was held that bail is said to be a rule, it cannot, by any
stretch of the imagination, be said that anticipatory bail
is the rule. It cannot be the rule and the question of its
grant should be left to the cautious and judicious
discretion of the Court depending on the facts and
circumstances of each case. While called upon to exercise
the said power, the Court concerned has to be very
cautious as the grant of interim protection or protection
to the accused in serious cases may lead to a miscarriage
of justice and may hamper the investigation to a great
extent as it may sometimes lead to tampering or
distraction of the evidence. We shall not be understood to
have held that the Court shall not pass interim protection
pending consideration of such application as the Section
is destined to safeguard the freedom of an individual
against unwarranted arrest and we say that such orders
shall be passed in eminently fit cases."
11. It was held in Pratibha Manchanda v. State of Haryana,
(2023) 8 SCC 181: 2023 SCC OnLine SC 785 that the Courts should
balance individual rights, public interest and fair investigation
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while considering an application for pre-arrest bail. It was
observed:
.
"21. The relief of anticipatory bail is aimed at
safeguarding individual rights. While it serves as a crucial
tool to prevent the misuse of the power of arrest and
protects innocent individuals from harassment, it also
presents challenges in maintaining a delicate balance
between individual rights and the interests of justice. The
tightrope we must walk lies in striking a balance between
safeguarding individual rights and protecting public
interest. While the right to liberty and presumption of
innocence are vital, the court must also consider the
gravity of the offence, the impact on society, and the need
for a fair and free investigation. The court's discretion in
weighing these interests in the facts and circumstances of
each case becomes crucial to ensure a just outcome."
12. The report of the analysis issued by FSL clearly shows
that human semen was detected on the trousers of the victim
and the underwear of the petitioner. The DNA analysis matched
the DNA picked up from the trousers with the DNA of the
petitioner. This clearly shows that the victim's version that she
had sexual intercourse with the petitioner is duly confirmed by
the report of the analysis.
13. It was submitted that the relationship between the
parties if any was consensual. This submission is not acceptable.
It was laid down by the Hon'ble Supreme Court in Yedla Srinivasa
Rao v. State of A.P. (2006) 11 SCC 615, that in view of Section 114-A
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when the victim says that she had not consented, the Court has
to presume the absence of the consent. It was observed: -
.
"15. In this connection, reference may be made to the
amendment made in the Evidence Act. Section 114-A was
introduced and the presumption has been raised as to the
absence of consent in certain prosecutions for rape.
Section 114-A reads as under:
"114-A. Presumption as to the absence of consent in
certain prosecutions for rape.-In a prosecution for
rape under clause (a) or clause (b) or clause (c) or
clause (d) or clause (e) or clause (g) of sub-section
(2) of Section 376 of the Indian Penal Code (45 of
1860), where sexual intercourse by the accused is
proved and the question is whether it was without
the consent of the woman alleged to have been raped
and she states in her evidence before the court that
she did not consent, the court shall presume that she
did not consent."
16. If sexual intercourse has been committed by the ac-
cused and if it is proved that it was without the consent of
the prosecutrix and she states in her evidence before the
court that she did not consent, the court shall presume
that she did not consent. The presumption has been in-
troduced by the legislature in the Evidence Act looking to
atrocities committed against women and in the instant
case as per the statement of PW 1, she resisted and she did
not give consent to the accused at the first instance and
he committed the rape on her. The accused gave her as-
surance that he would marry her and continued to satisfy
his lust till she became pregnant and it became clear that
the accused did not wish to marry her."
14. This judgment was followed in Anurag Soni Vs State of
Chhattisgarh, 2019 (13) SCC 1. Therefore, in view of the binding
precedent of the Hon'ble Supreme Court, the Court cannot infer
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consent, when the victim stated that she had not consented to
the sexual intercourse.
.
15. A reference was made to the FIRs registered by the
victim against various persons to submit that the victim is
habitual of making such complaints against the persons and
extracting money from them. These FIRs will not help the
petitioner because the report of analysis confirms the version of
the victim that she had sexual relations with the petitioner
prima facie the version of the victim has to be accepted as
correct, as this relation was without the consent of the victim,
hence a prima facie case of rape is made out at this stage.
16. Section 146 of the Indian Evidence Act (149 of
Bhartiya Sakshay Adhiniyam) provides that in a prosecution for
an offence punishable under Section 376 of IPC (Section 6 to 71
of Bhartiya Sakshay Adhiniyam, 2023), the question regarding
the moral character of the victim or her previous sexual
experience would be irrelevant. Thus, no advantage can be
derived from the previous sexual experience of the victim. It was
laid down by the Hon'ble Supreme Court in State (NCT of Delhi) v.
Pankaj Chaudhary, (2019) 11 SCC 575: (2019) 4 SCC (Cri) 264: 2018
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SCC OnLine SC 2256 that even the sex worker had a right to say
no. It was observed at page 586:
.
27. As rightly held by the trial court that even if the
allegations of the accused that the prosecutrix is of
immoral character are taken to be correct, the same does
not give any right to the accused persons to commit rape
on her against her consent. In State of
Maharashtra v. Madhukar Narayan Mardikar [State of
Maharashtra v. Madhukar Narayan Mardikar, (1991) 1 SCC
57: 1991 SCC (Cri) 1: 1994 SCC (L&S) 761], it was held that
(SCC p. 62, para 8) even a woman of easy virtue is entitled
to privacy and it is not open to any person to violate her
and she is equally entitled to the protection of the law.
Further, the evidence of such a woman cannot be thrown
overboard merely because she is a woman of easy virtue.
28. Even in cases where there is some material to show
that the victim was habituated to sexual intercourse, no
inference like the victim being a woman of "loose moral
character" is permissible to be drawn from that
circumstance alone. A woman of easy virtue also could
not be raped by a person for that reason. In State of
Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh,
(1996) 2 SCC 384: 1996 SCC (Cri) 316], it was held as
under : (SCC p. 402, para 16)
"16. ... Even if the prosecutrix, in a given case, has been
promiscuous in her sexual behaviour earlier, she has a
right to refuse to submit herself to sexual intercourse to
anyone and everyone because she is not a vulnerable
object or prey for being sexually assaulted by anyone and
everyone."
(emphasis supplied)
While so, the High Court erred in placing reliance upon
the complaints allegedly made against the prosecutrix to
doubt her version and to hold that a false case has been
foisted against the accused.
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53. The High Court erred in brushing aside the evidence of
the prosecutrix by substituting its views on the basis of
submissions made on the sequence of events in FIR No.
558 of 1997 and the report of the Joint Commissioner of
.
Police (Ext. DW 6/A) and the report of the Deputy
Commissioner of Police. The High Court erred in taking
into consideration the materials produced before the
appellate court viz. the alleged complaints made against
the prosecutrix and other women alleging that they were
engaged in prostitution. Even assuming that the
prosecutrix was of easy virtue, she has a right of refuse to
submit herself to sexual intercourse to anyone. The
judgment of the High Court reversing the verdict of
conviction under Section 376(2)(g) recorded by the trial
court cannot be sustained and is liable to be set aside.
17. There is a force in the submission of Mr. Lokender
Kutlehria, learned Additional Advocate General that the offence
against the victim is heinous in nature. It was laid down by
Hon'ble Supreme Court in Ms X versus State of Maharashtra and
another, 2023 STPL 3386 SC, [2023(2) Crimes 66 (SC)] that pre-
arrest bail should not be granted in an offence punishable under
Section 376 of IPC. It was observed:
"22. Surprisingly, none of the aforesaid aspects have been
touched upon in both the impugned orders. The nature
and gravity of the alleged offence have been disregarded.
So has the financial stature, position and standing of the
accused vis-a-vis the appellant/prosecutrix been ignored.
The High Court has granted anticipatory bail in favour of
the respondent No. 2/accused in a brief order of three
paragraphs, having been swayed by the 'star variations in
the narration of the prosecutrix' implying thereby that
what was originally recorded in the FIR, did not make out
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an offence of rape, as defined in Section 375 IPC, which is
an erroneous assumption. Even if the first Supplementary
statement of the appellant/prosecutrix recorded in the
evening hours of 6th August 2022, the date on which the
.
FIR had been registered against the respondent
No.2/accused in the first half of the same day, her second
Supplementary statement recorded on 6th September
2022 and the Medico-Legal Report of the doctor who had
examined the appellant/prosecutrix on 8th August 2022,
are kept aside for a moment, we find that there was still
sufficient material in the FIR that would prima facie
attract the provision of Section 376, IPC. In our opinion,
these factors ought to have dissuaded the High Court
from exercising its discretion in favour of respondent
No.2/accused for granting him anticipatory bail.
18. In the present case, the victim is a model. She was
taken by the petitioner, who is a singer for shooting a video in
Shimla, where he had raped her. He abandoned the victim at
Chandigarh thereafter. Keeping in view the status of the parties
and their position with respect to each other, the petitioner
cannot be released on bail.
19. It was submitted that the charge sheet has been filed
and the custodial interrogation of the petitioner is not required;
hence, the petitioner is entitled to pre-arrest bail. This
submission cannot be accepted. It was laid down by the Hon'ble
Supreme Court in Sumitha Pradeep v. Arun Kumar C.K., 2022 SCC
OnLine SC 1529 that the petitioner is not entitled to pre-arrest
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bail simply because his custodial interrogation is not required. It
was observed:
.
"14. It may be true, as pointed out by learned counsel
appearing for Respondent No. 1, that the charge sheet has
already been filed. It would be unfair to presume on our
part that the Investigating Officer does not require
Respondent No. 1 for custodial interrogation for the
purpose of further investigation.
15. Be that as it may, even assuming it is a case where
Respondent No. 1 is not required for custodial
interrogation, we are satisfied that the High Court ought
not to have granted discretionary relief of anticipatory
bail.
16. We are dealing with a matter wherein the original
complainant (appellant herein) has come before this
Court praying that the anticipatory bail granted by the
High Court to the accused should be cancelled. To put it in
other words, the complainant says that the High Court
wrongly exercised its discretion while granting
anticipatory bail to the accused in a very serious crime
like POCSO and, therefore, the order passed by the High
Court granting anticipatory bail to the accused should be
quashed and set aside. In many anticipatory bail matters,
we have noticed one common argument being canvassed that
no custodial interrogation is required and, therefore,
anticipatory bail may be granted. There appears to be a
serious misconception of the law that if no case for custodial
interrogation is made out by the prosecution, then that alone
would be a good ground to grant anticipatory bail. Custodial
interrogation can be one of the relevant aspects to be
considered along with other grounds while deciding an
application seeking anticipatory bail. There may be many
cases in which the custodial interrogation of the accused may
not be required, but that does not mean that the prima
facie case against the accused should be ignored or
overlooked and he should be granted anticipatory bail. The
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first and foremost thing that the court hearing an
anticipatory bail application should consider is the prima
facie case put up against the accused. Thereafter, the nature
of the offence should be looked into along with the severity of
.
the punishment. Custodial interrogation can be one of the
grounds to decline anticipatory bail. However, even if
custodial interrogation is not required or necessitated, by
itself, cannot be a ground to grant anticipatory bail."
(Emphasis supplied)
20. Consequently, the petitioner is not entitled to pre-
arrest bail. Hence, the present petition fails and the same is
dismissed. r
21. The observation made hereinabove shall remain
confined to the disposal of the petition and will have no bearing,
whatsoever, on the merits of the case.
(Rakesh Kainthla)
Judge
1st October, 2024
(Chander)
