Punjab-Haryana High Court
Varun Singh vs State Of Haryana on 28 May, 2021
CRM-M-18942-2021
THROUGH VIDEO CONFERENCE
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CRM-M-18942-2021.
Decided on: May 28, 2021.
Varun Singh
.. Petitioner
VERSUS
State of Haryana
.. Respondent
***
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
***
PRESENT Mr.Sanjiv Kumar Yadav, Advocate,
for the petitioner.
Mr.Deepak Manchanda, Addl. A.G. Haryana
JASGURPREET SINGH PURI, J. (ORAL)
The present case has been heard through video
conference.
This is a petition filed under Section 438 Cr.P.C. for the
grant of anticipatory bail to the petitioner in case FIR No.36 dated
12.4.2021, under Section 406 IPC as well as under Section 8 and 12 of the
Protection of Children from Sexual Offences (POCSO) Act, registered at
Women Police Station, District Ambala.
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As per the FIR, which has been attached as Annexure P-1
along with the present petition, the same was lodged on the basis of the
statement made by the complainant who is stated to be 16 years of age and
is studying in 12th Class. As per the FIR, in August 2019 the complainant
who is a minor girl of 16 years received a request from Notty Varun
(petitioner) on Snapchat which was accepted by her and thereafter, they
started talking with each other on mobile phone and developed friendship
and started meeting with each other. As per the allegations, thereafter the
petitioner started pressurising the complainant to send her photo to him and
under pressure, she sent her normal photo and thereafter, the petitioner
started pressurising her for her nude and semi-nude photos. On the asking of
the petitioner, she had sent her nude and semi-nude photos through
Snapchat on the phone of the petitioner. Thereafter, the petitioner started
making excuses by saying that he is in need of some money. He took away
her gold chain in which pendant of God Shiva was annexed. This all
happened in February 2021 and thereafter, the petitioner had also taken
away her mobile phone, Guitar and Head Phone on the pretext that he will
return it soon but the same was not returned till date and the petitioner used
to propose her for marriage. In December 2020, the petitioner took away her
on an excuse that he will let her meet his grand-mother and then they went
to Sector 10, where one old lady was sitting and there the petitioner left the
complainant to meet her and then they returned back. In August 2020, the
petitioner took the complainant in a white car at about 7:00 P.M. and kept
her in a hotel and molested her (wrongly translated by petitioner the
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expression 'ched chhar' as eve-teased) and on the next day, the petitioner left
her at her house and kept talking to her on phone.
The learned counsel for the petitioner has submitted that
the petitioner has been falsely implicated in the present case and no offence
was made out against him either under the POCSO Act or under Section 406
IPC. He has submitted that there was a consensual relationship between the
petitioner and the complainant girl and the learned counsel for the petitioner
has even referred to the transcript of the recorded conversation vide
Annexure P-4 to show that there was a consent between the petitioner and
the girl and therefore, no offence is made out against the petitioner. He has
submitted that the FIR has been lodged under pressure from the parents of
the girl and therefore, he has prayed for the grant of anticipatory bail to the
petitioner.
Learned counsel for the petitioner has referred to the
judgment of the Hon'ble Supreme Court in Arnesh Kumar Vs. State of
Bihar 2014 (8) SCC 273, to contend that where the offence is punishable
with imprisonment for a term which is less than 7 years then normally the
police shall restrain itself from arresting the accused.
Notice of motion in this case was issued on 13.5.2021
and the learned State counsel had sought time to seek instructions and to file
affidavit. Thereafter, a reply by way of affidavit of Mr.Madan Lal, HPS,
Deputy Superintendent of Police, Ambala, District Ambala, was filed on
behalf of State of Haryana on 19.5.2021.
Learned State counsel while opposing the grant of
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anticipatory bail to the petitioner has referred to the contents of the affidavit
which has been filed by the Deputy Superintendent of Police, Ambala,
District Ambala. He has submitted that, as a matter of fact, the petitioner
who is a major person had allured minor girl (complainant) who was of the
age of 14 years at that time on the pretext of marriage and thereafter, the
petitioner developed friendly relations with her and emotionally allured her
to pay money and also succeeded to take a gold chain, a mobile phone,
guitar and head phone and also pressurised her for sending her nude and
semi-nude photos on his mobile and thereafter, committed a grave offence
with the minor victim which affects the society at large. Learned State
counsel has further submitted that after registration of the present case, birth
certificate of the minor victim was collected as per which her date of birth is
12.2.2005 and the same was taken into police possession by preparing a
recovery memo. On the same day, the minor victim led the police party to a
hotel Mohan Vilas, Ambala City and demarcated room No.105 where the
accused-petitioner committed eve-teasing with the victim and the
investigating officer prepared memo of place of occurrence attested by the
witnesses and also recorded the supplementary statement of the minor
victim.
Learned State counsel while referring to the affidavit
filed by the Deputy Superintendent of Police, Ambala, District Ambala, has
submitted that on 15.4.2021, the minor victim was taken to the Court of
learned Judicial Magistrate First Class, Ambala for recording her statement
under Section 164 Cr.P.C. and thereafter, her statement was recorded by the
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learned Judicial Magistrate First Class, Ambala. He has submitted that as
per the affidavit, on 22.4.2021, the certified copy of the statement of the
minor victim was received by the investigating officer in which the minor
victim reiterated that the accused-petitioner had physically assaulted her and
he had also allured her to send nude and semi-nude pictures on the pretext
of marriage and the minor victim also stated that the accused-petitioner had
taken her gold chain and threatened the minor victim to upload her nude
pictures on the social media. The investigating officer tried to apprehend the
accused-petitioner but he could not be apprehended and he is absconding.
He has submitted that as per the affidavit, thereafter, on 7.5.2021, the minor
victim along with her cousin brother Mohit Sharma came to the police
station and the minor victim stated that in the month of August and
November 2020, the petitioner had taken her to Sangam Resort and
demarcated Room No.207 and disclosed that in the month of August 2020,
the accused-petitioner took her in this room and outraged her modesty.
Thereafter, again on 9.5.2021, the investigating officer reached at Sangam
Resort and verified from the Resort record about the booking of room and
as per record vide serial No.76 dated 26.8.2020, the accused-petitioner had
booked room No.207 through online by producing his Aadhar Card as well
Aadhar Card of minor victim and as per the Resort record, the accused-
petitioner along with minor victim reached the said Resort on 26.8.2020 at
2:29 PM and remained in the company of minor victim in roomNo.207 upto
7:00 P.M. The investigating officer also verified from the Resort record
about the booking of room on 18.11.2020 and as per record vide serial
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No.393 dated 18.11.2020, the accused-petitioner had booked room No.212
by producing his Aadhar Card and that of the minor victim and as per the
Resort record, the accused-petitioner along with minor victim reached the
said Resort at 4:10 P.M. and remained in the company of minor victim in
room No.212 upto 4:37 P.M.
Learned State counsel has further submitted that on the
basis of the investigation conducted by the police, the matter is not only
serious in nature but also affect the society at large. The petitioner who is a
major person had allured the minor victim who was of the age of about 14
years in the year 2019 on the pretext of marriage and pressurised her to send
him her nude and semi-nude photos on his mobile phone which is a grave
offence. While referring to para 13 of the affidavit, the learned State counsel
has further submitted that custodial investigation of the petitioner is also
required in this case for the purpose of recovery of gold chain, Guitar,
Mobile Phone of the victim as well as mobile phone of accused-petitioner
having nude and semi-nude photos of minor victim along with chat. He has
submitted that there is every possibility that the petitioner may misuse the
nude and semi-nude photos of the minor victim and therefore, the learned
State counsel has prayed for dismissal of the present petition for
anticipatory bail.
I have heard the learned counsel for the parties.
As per the FIR as well as the investigation conducted by
the police a very grave and serious role has been attributed to the petitioner.
As per the allegations, the complainant victim was of the age of 14 years in
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the year 2019 when the petitioner had allured her on the pretext of marriage
and thereafter, when the girl was of the age of 16 years, the present FIR
came to be lodged. The argument raised by the learned counsel for the
petitioner that the relationship was the result of consent between the
petitioner and the minor girl would not carry any weight in view of the fact
that consent of a minor is immaterial and insignificant. Another argument
raised by the learned counsel for the petitioner that the FIR came to be
lodged on the basis of pressure by the parents of the girl also does not
inspire confidence at this stage in view of the fact that the statement of the
minor girl victim was recorded under Section 164 Cr.P.C. before the
Judicial Magistrate First Class, Ambala, wherein as per the prosecution, she
reiterated the allegations levelled in the FIR. Learned counsel for the
petitioner has also relied upon the judgment of the Hon'ble Supreme Court
in Arnesh Kumar (supra) to contend that there should not be automatic
arrest where the punishment prescribed is less than 7 years. The Hon'ble
Supreme Court in the aforesaid judgment had issued various directions and
all the State Governments were directed to instruct its police officers not to
automatically arrest when a case under Section 498-A of the IPCis
registered but to satisfy themselves about the necessity for arrest under the
parameters laid down flowing from Section 41 Cr.P.C. Police officers were
also directed to furnish the reasons and material which necessitated the
arrest while forwarding/producing the accused before the Magistrate for
further detention. The directions were not only limited to Section 498-A IPC
but were also made applicable to cases where the offence is punishable with
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imprisonment for a term which may be less than seven years or which may
extend to seven years. Therefore, the argument raised by the learned counsel
for the petitioner that the police should not make arrest when the maximum
punishment provided is less than seven years, is fallacious. As per the
judgment of the Hon'ble Supreme Court, it is the satisfaction about the
necessity of arrest which is important and which has to be complied with.
Furthermore, in Siddharam Satlingappa Mhetre Vs. State of Maharashtra
and others, (2011) Supreme Court Cases 694, Hon'ble the Supreme Court
laid down the factors and parameters which can be taken into consideration
while dealing with the anticipatory bail. The first parameter laid down was
that the nature and gravity of the accusation and the exact role of the
accused must be properly comprehended before arrest is made. Various
other parameters were laid down which could be considered for deciding the
petitions for the grant of anticipatory bail and it was held that Courts must
carefully examine the entire available record and particularly the allegations
which have been directly attributed to the accused and whether these
allegations are corroborated by other material and circumstances on record.
In the present case, a detailed affidavit has been filed by
the Deputy Superintendent of Police, Ambala, in which it has been stated
that it is not only once but for number of times the petitioner had allegedly
taken the minor girl to different Resorts and the police has also checked up
the records of the same. The nature and gravity of the accusations is of such
a magnitude that the petitioner cannot be granted the concession of
anticipatory bail. The apprehension of the police that the petitioner may
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mis-utilize the nude and semi-nude photos is well founded. Recovery of
mobile phone of petitioner is definitely important for investigation.
Therefore, considering the totality of the circumstances of the present case, I
do not deem it fit and proper to interfere in the present case and
consequently, the present petition for the grant of anticipatory bail to the
petitioner is hereby dismissed.
However, it is made clear that aforesaid observations of
this Court are only for the purpose of deciding the present petition and will
not in any manner whatsoever reflect on the merits of the case.
May 28, 2021. (JASGURPREET SINGH PURI)
raj arora JUDGE
Whether speaking / reasoned Yes / No
Whether reportable Yes / No
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