Himachal Pradesh High Court
Swati Katoch vs State Of Himachal Pradesh on 23 September, 2024
Neutral Citation No. ( 2024:HHC:8957 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) Nos.1360 and 1361 of
.
Reserved on: 27.08.2024
Date of Decision: 23.09.2024.
1. Cr.MP(M) No. 1360 of 2024
Swati Katoch ...Petitioner
Versus
State of Himachal Pradesh
r ...Respondent
2. Cr.MP(M) No.1361 of 2024
Sharad Talwar ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Petitioner(s) : M/s Ravi Tanta, Shakti
Bhardwaj and Anirudh
Thakur, Advocates in both the
petitions.
For the Respondent/State : Mr. Lokender Kutlehria,
Additional Advocate General in
both the petitions.
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
Neutral Citation No. ( 2024:HHC:8957 )
For the informant : Ms. Suhani Gautam, Advocate,
in both the petitions.
Rakesh Kainthla, Judge
.
The petitioners have filed the present petitions for
seeking pre-arrest bail in F.I.R. No. 18 of 2024 dated 22.05.2024,
for the commission of offences punishable under Sections 452,
354-A, 354-C and 506 read with Section 34 of Indian Penal Code
(IPC), registered at Women Police Station Nahan, District
Sirmour, Himachal Pradesh.
2. It has been asserted that the petitioners are innocent
and were falsely implicated. No recovery is to be effected from
the petitioners and their custody is not required. The petitioners
would abide by all the terms and conditions, which the Court
may impose. Four FIRs are pending against petitioner Sharad
Talwar and two FIRs are pending against petitioner Swati
Katoch. Hence, the present petitions.
3. The petitions are opposed by filing separate status
reports asserting that the informant made a complaint to the
police stating that she was residing in Shimla in the year 2012.
She developed a friendship with Sharad Talwar in the year 2015.
He had taken some intimate photographs and also prepared
Neutral Citation No. ( 2024:HHC:8957 )
intimate videos of the informant. He had also transferred some
such photographs from the mobile phone of the informant to his
.
mobile phone. He started harassing the informant. An F.I.R.
was lodged by the informant against petitioner Sharad Talwar.
The matter was compromised between the parties and the F.I.R.
was quashed. Petitioner Swati Katoch sent the photographs and
videos from the phone of Sharad Talwar to the informant on
10.05.2024. Similarly, photographs were sent by Amit Verma to
the informant, who disclosed that Sharad Tawar and his wife
were sharing the informant's intimate photographs and videos
with him. Sharad Talwar visited the informant's house on
15.05.2024 at 9:00 a.m. and acted indecently with her. She
shouted for help. Her son came after hearing her noise and
pushed petitioner Sharad Talwar out of the house. Petitioner
Sharad Talwar was defaming the informant in various meetings.
The Police registered the F.I.R. The statement of the informant
was recorded. Photographs and videos were seized by the police.
It was found after the investigation that the informant was
residing at Shimla w.e.f. 2009 till 2019. She contacted petitioner
Sharad Talwar and became friends with him. The photographs
and videos were found in the mobile phones of the petitioner
Neutral Citation No. ( 2024:HHC:8957 )
and informant. Petitioner Sharad Talwar started harassing the
informant on the basis of photographs and videos. The F.I.R.
.
was lodged earlier, which was compromised. He started
defaming the informant after compromising the previous
petition. He also sent messages to the informant and her
children. Petitioner -Swati Katoch also shared the intimate
photographs and videos with the informant and Amit Verma.
Petitioner Sharad Talwar had entered the informant's house.
Petitioners were interrogated and their mobile phones were
seized. Hence, the status reports.
4. The victim also filed separate replies in both
petitions taking preliminary objections regarding the
petitioners having concealed material facts from the Court and
petitioners being estopped from filing the present petitions due
to their acts, conduct and acquiescence. It was asserted that the
petitioners had assured the informant that they would not
harass her. Hence, the earlier F.I.R. was compromised by the
informant. Petitioners are again harassing the informant on the
basis of her intimate photographs and videos and she had to
report the matter to the police. Therefore, it was prayed that the
present petitions be dismissed.
Neutral Citation No. ( 2024:HHC:8957 )
5. I have heard Mr. Ravi Tanta, learned counsel for the
petitioners in both the petitions, Mr. Lokender Kutlehria,
.
learned Additional Advocate General for respondent/State and
Ms. Suhani Gautam, learned counsel for the informant.
6. Mr. Ravi Tanta, learned counsel for the petitioners
submitted that a huge amount was deposited by the petitioners
in the account of the informant and when the petitioners were
unable to deposit the amount in her account, she filed a false
complaint against the petitioners. The petitioners are innocent
and were falsely implicated by the informant. No fruitful
purpose would be served by detaining the petitioners in custody.
Hence, he prayed that the petitioners be released on bail.
7. Mr. Lokender Kutlehria, learned Additional Advocate
General for the respondent-State submitted that the petitioners
had shared the intimate photographs and videos of the
informant. The offences committed by the petitioners are
heinous. The investigation is continuing. Therefore, he prayed
that the present petitions be dismissed.
8. Ms Suhani Gautam, learned counsel for the
informant submitted that the petitioners had shared the
Neutral Citation No. ( 2024:HHC:8957 )
informant's intimate photographs with Amit Verma and other
persons. Merely because the informant had allowed petitioner -
.
Sharad Talwar to take her photographs and had shared her
photographs with him will not entitle him to circulate the
photographs in society. The money has been deposited by the
informant herself in her account. A false allegation of blackmail
has been made against the informant. Therefore, she prayed
9. to
that the present petitions be dismissed.
I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
10. 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 bail 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
fleeing justice and other factors to decide whether it is a
fit case for grant of anticipatory bail. Grant of
Neutral Citation No. ( 2024:HHC:8957 )
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."
11. 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."
12. 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
Neutral Citation No. ( 2024:HHC:8957 )
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."
13. The allegations in the F.I.R. show that the petitioners
had sent the informant's intimate photographs and videos to
the informant and Amit Verma. Copies of the WhatsApp
conversation have also been annexed to the record in which
some intimate photographs are visible. There is a force in the
submissions of Ms Shuhani Gautam, learned counsel for the
informant/victim that possession of informant's photographs
and videos does not entitle the petitioners to share them with
the people of the society to defame the informant.
Neutral Citation No. ( 2024:HHC:8957 )
14. It is undisputed that the informant had earlier lodged
one F.I.R., which was compromised between the parties and the
.
F.I.R. was quashed. However, the petitioners had circulated the
photographs and videos after the compromise of the previous
petition. This shows that petitioners cannot be trusted with the
intimate photographs/videos of the informant and the
apprehension of the informant/victim that they can indulge in
the circulation of the photograph of the victim in case of their
release on bail is to be accepted as correct.
15. The investigation of the case is continuing. The
mobile phones of the petitioners were seized but it is yet to be
ascertained whether the petitioners have other intimate
photographs/videos of the informant and if they have such
photographs/videos where those have been kept. Hence, they
cannot be released on bail at this stage.
16. A heavy reliance was placed upon the receipts of bank
deposits, in which the money is shown to be deposited in the
account of the informant. Even if, the submission of the
petitioners is accepted to be correct that money was being paid
to the informant, they have a right to initiate proceedings for its
Neutral Citation No. ( 2024:HHC:8957 )
recovery. The payment of money to the informant will not give
them any license to circulate her intimate photographs/videos.
.
The Right to Privacy is now a recognized right under Article 21 of
the Constitution of India and a person cannot be allowed to
violate a Right of Privacy by sharing intimate photographs of the
informant without his/her consent.
17. Keeping in view the nature of the allegations and the
stage at which the investigation is pending, it will not be proper
to release the petitioners on pre-arrest bail.
18. In view of the above, the present petitions fail and
the same are dismissed.
19. The observations made herein before shall remain
confined to the disposal of the petitions and will have no
bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla)
Judge
23rd , September, 2024
(ravinder)
