The High Court of Himachal recently comprising of a bench of Justice Vivek Singh denied anticipatory bail to a man apprehending arrest in a case for allegedly being a part of racket involved in fishing adolescent girls for throwing them in international flesh trade by trafficking them abroad after alluring them for marriage. (Mohammad Nazim Versus State Of Himachal Pradesh)
The bench observed that an accused may not be entitled for the grant of anticipatory bail even in the absence of necessity of custodial interrogation in all eventualities. According to the Court, the requirement of custodial interrogation is not the only reason for rejecting bail application.
The Court while making the said observation also observed that, "a balance has to be maintained between the right of personal liberty and the right of Investigating Agency to investigate and to arrest an offender for the purpose of investigation."
Facts of the Case
The petitioner had filed this anticipatory bail plea under Section 438 Criminal Procedure Code, registered in Police Station Sadar, Shimla, H.P., under Sections 363, 366A, 370(4), 506 and 120B of the Indian Penal Code.
The victim, aged about 15 years, had to attend her school and when she did not return home in the evening, her father, on inquiry, had received information that on that day students were not called in the school. With aforesaid complaint, father of the victim had approached Police Station, with suspicion that someone had abducted her daughter after alluring and misleading her.
During investigation, location of mobile number of victim was found in Haryana leading to the clue to the police that victim was travelling towards Delhi. Whereupon, police party was sent to Delhi in search of victim and it was also found that victim was having too many talks on two mobile numbers therefore, CDRs was found at Panipat and thereafter her phone was found switched off.
It was revealed that the boy, who had sent the location, was one Ibrahim residing at Badarpur, his room was found locked and it came in notice that he was hiding him in some other house in the room of his friend, wherefrom he was taken to Badarpur Police Station and shown to Jatin, and Jatin had identified him the same boy to whom he had handed over the girl.
Contention of the Parties
According to the Advocate General, it was submitted that investigation in the case revealed that there was a plan to traffic the victim to Dubai and that the call detail records showed that the accused was in regular contact with her and that he was allegedy directing, dictating, controlling and monitoring her movement on mobile with the help of a well connected network of his allege racked.
It was also submitted that the said racked "smacked of a big conspiracy" amongst the accused by allegedly giving false assurance of marriage to the victim. In view of this, it was submitted that custodial interrogation of the accused was warranted in the matter.
On the other hand, the petitioner/accused while denying the allegations of it being a case of big conspiracy, submitted that it was a simple love affair between him and the victim and that he in fact ensured her safety by making arrangements for her arrival in Delhi in his house.
It was also submitted by the petitioner that there was no avert act on the part of the petitioner as the victim had voluntarily left her house.
Courts Observation & Judgment
The Court while looking at the facts of the present case observed that the Court has no power to issue direction to the investigating agency not to arrest an offender. The Court also noted that a direction under sec, 438 of CrPC is issued by the Court in anticipation of arrest for releasing the offender.
The Court at the very outset observed, "It is an extraordinary provision empowering the Court to issue direction to protect an offender from detection. Therefore, this power should be exercised by the Court wherever necessary and not for those who are not entitled for such intervention of the Court at the stage of investigation, for nature and gravity of accusation, their antecedents or their conduct disentitling them from favour of Court for such protection."
The court opinioned that, “Where right to investigate, and to arrest and detain an accused during investigation, is provided under Cr.P.C., there are provisions of Articles 21 and 22 of the Constitution of India, guaranteeing protection of life and personal liberty as well as against arrest and detention in certain cases. Agency and life and liberty of a person has to be maintained by the Courts, in the light of Fundamental Rights guaranteed under Articles 21 and 22 of the Constitution of India, but also keeping in mind interference by the Court directing the Investigating Officer not to arrest an accused amount to interference in the investigation.”
The Court observed, "Though bail is rule and jail is exception. However, at the same time, it is also true that even in absence of necessity of custodial interrogation also, an accused may not be entitled for anticipatory bail in all eventualities. Based on other relevant factors, parameters and principles enumerated and propounded by Courts in various pronouncements, some of which have also been referred by learned counsel for CBI, anticipatory bail may be denied to an accused. Requirement of custodial interrogation is not only reason for rejecting bail application under Section 438 CrPC."
The petition was dismissed stating that, "Considering entire facts and circumstances of the case placed before me and contention of learned Deputy Advocate General as well as learned counsel for the petitioner, and nature, gravity and seriousness of offence for the manner in which girl has been managed to be transported/travelled from Shimla to a remote village of Uttar Pradesh in an organized manner, and also for finding or ruling out possibility of amplitude and magnitude of the conspiracy, I find that prayer for custodial interrogation of the petitioner is justified and thus acceptable. Therefore, petition is dismissed with direction to the petitioner to surrender before Investigating Officer/police immediately."
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Anshu
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