CRMPM/2273/2020 of NARENDER SINGH Vs STATE OF HP on 31 December 2020

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 2273 of 2020

Reserved on: 30.12.2020

Decided on: 31.12.2020

Narender Singh ...Petitioner.

Versus

State of Himachal Pradesh

...Respondent.

Coram:

The Hon’ble Mr. Justice Anoop Chitkara, Judge.

Whether approved for reporting?[1] No

For the petitioner:Mr. Rajesh Kumar Parmar, Advocate.

For the respondent:

Mr. S.C. Sharma and Mr. Nand Lal Thakur,Additional Advocate Generals.

COURT PROCEEDINGS CONVENED THROUGH VIDEO CONFERENCE

Anoop Chitkara, Judge.

A soldier in Indian army aged 24 years, who is in custody forcommitting forcible sexual intercourse, threat and recording the obscene acts with alady, when on leave, has come up before this Court seeking regular bail.2.The police arrested the petitioner on 27.12.2020 in FIR No.42 of 2020,dated 26.12.2020, registered under Sections 376, 506, IPC and Section 66E, IT Act inWomen Police Station, Solan, Himachal Pradesh, disclosing cognizable and non-bailable offences.

3. Briefly stated the facts of the case are that the victim, who is aged 34years and a married lady informed the Superintendent of Police against the accusedNarender Singh. The allegations against the petitioner are:-

(i) That the victim is a married lady and has two children. However, herhusband resides separately from them.husband resides separately from them.

(ii) The accused kept on calling her on her mobile number.(iii)In August, 2018, the accused visited her home and conveyed hisintention to marry and requested her to search a girl for him. She asked him toleave his house, but instead of leaving her house, he started indulging inobscene acts with her and made physical relations with her against her wishes.After that, the accused threatened the victim that in case she informed anyoneabout this incident of forcible act, then he would kill her and her children.

(iv) After that, on a number of times, he visited the house of the victimand established forcible physical relations with her against her wishes andconsent. The accused also established unnatural sexual relations with her. Theaccused also blackmailed her and obtained various loans in her name. He kepton taking money from her and also established physical relations with her byputting her under fear. He also threatened her in case she revealed the fact ofhaving sexual relations to anyone, then he would inform her husband about thesame.

(v) The victim also made detailed allegations against the accused, whichare not relevant to decide the present bail petition.

4. I have gone through the status report and heard learned counsel for theparties.

ANALYSIS AND REASONING:

5. In Gurbaksh Singh Sibbia and others v. State of Punjab, 1980 (2) SCC565, (Para 30), a Constitutional bench of Supreme Court held that the bail decisionmust enter the cumulative effect of the variety of circumstances justifying the grantor refusal of bail. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav,2005 (2) SCC 42, (Para 18) a three-member bench of Supreme Court held that thepersons accused of non-bailable offences are entitled to bail, if the Court concernedconcludes that the prosecution has failed to establish a prima facie case against him,or despite the existence of a prima facie case, the Court records reasons for itssatisfaction for the need to release such persons on bail, in the given fact situations.The rejection of bail does not preclude filing a subsequent application, and theCourts can release on bail, provided the circumstances then prevailing requires, and

a change in the fact situation. In State of Rajasthan, Jaipur v. Balchand, AIR 1977SC 2447, (Para 2 & 3), Supreme Court noticeably illustrated that the basic rule mayperhaps be tersely put as bail, not jail, except where there are circumstancessuggestive of fleeing from justice or thwarting the course of justice or creating othertroubles in the shape of repeating offences or intimidating witnesses and the like bythe petitioner who seeks enlargement on bail from the court. It is true that the gravityof the offence involved is likely to induce the petitioner to avoid the course of justiceand must weigh with us when considering the question of jail. So also theheinousness of the crime. In Gudikanti Narasimhulu v. Public Prosecutor, HighCourt of Andhra Pradesh, (1978) 1 SCC 240, (Para 16), Supreme Court in Para16, held that the delicate light of the law favours release unless countered by thenegative criteria necessitating that course. In Dataram Singh v. State of UttarPradesh, (2018) 3 SCC 22, (Para 6), Supreme Court held that the grant or refusal ofbail is entirely within the discretion of the judge hearing the matter and though thatdiscretion is unfettered, it must be exercised judiciously and in a humane mannerand compassionately. Also, conditions for the grant of bail ought not to be so strictas to be incapable of compliance, thereby making the grant of bail illusory.

6. Pre-trial incarceration needs justification depending upon the offense's heinousnature, terms of the sentence prescribed in the statute for such a crime, probability ofthe accused fleeing from justice, hampering the investigation, criminal history of theaccused, and doing away with the victim(s) and witnesses. The Court is under anobligation to maintain a balance between all stakeholders and safeguard the interestsof the victim, accused, society, and State. However, while deciding bail applications,the Courts should discuss evidence relevant only for determining bail. Thedifference in the order of bail and final judgment is similar to a sketch and apainting. However, some sketches are in detail and paintings with a few strokes.

7. Given the age and conduct of the victim and fact that she was in continuousrelationship with the accused from July, 2018, there is no justification in keeping thepetitioner in jail.

8. An analysis of entire evidence does not justify incarceration of the accused, noris going to achieve any significant purpose. Without commenting on the merits of the case, the stage of the investigation and the period of incarceration alreadyundergone would make out a case for bail.

9. The possibility of the accused influencing the course of the investigation,tampering with evidence, intimidating witnesses, and the likelihood of fleeingjustice, can be taken care of by imposing elaborative conditions and stringentconditions. In Sushila Aggarwal, (2020) 5 SCC 1, Para 92, the Constitutional benchheld that unusually, subject to the evidence produced, the Courts can imposerestrictive conditions.

10. Given the above reasoning, the Court is granting bail to the petitioner, subjectto strict terms and conditions, which shall be over and above and irrespective of thecontents of the form of bail bonds in chapter XXXIII of CrPC, 1973.

11. Following the decision of this Court in Manish Lal Shrivastava v. State ofHimachal Pradesh,Cr.MP(M) No. 1734 of 2020, decided on 1[st] Dec 2020,thepetitioner shall be released on bail in the FIR mentioned above, subject to his furnishinga personal bond of Rs. Twenty five thousand (INR 25,000/-), and shall either furnishtwo sureties each of a similar amount, both of whom, in case of default from putting inan appearance, can produce the accused before the Court to the satisfaction of theJudicial Magistrate, Solan/ Chief Judicial Magistrate, District Solan, HP/ or any otherJudicial magistrate of District Solan, HP orthe aforesaid personal bond and fixeddeposit(s) for Rs. Twenty five thousand only (INR 25,000/-), made in favour of “ChiefJudicial Magistrate, District Solan, H.P.”, from any of the banks where the stake of theState is more than 50%, or any of the stable private banks, e.g., HDFC Bank, ICICIBank, Kotak Mahindra Bank, etc., with the clause of automatic renewal of principal,and liberty of the interest reverting to the linked account. The arresting officer shall givea time of ten working days to enable the accused to prepare a fixed deposit. Such a fixeddeposit need not necessarily be made from the account of the petitioner. If such a fixeddeposit is made on paper, then the original receipt shall be handed over to the arrestingofficer. If made online, then its printout, attested by any Advocate, and if possiblecountersigned by the accused, shall be filed, and the depositor shall get the onlineliquidation disabled. The petitioner or his Advocate shall inform at the earliest, either bye-mail or by post/courier, the concerned branch of the bank about the fixed deposit,whether made on paper or in any other mode, along with its number as well as FIR

number, that it has been tendered as surety. After that he shall hand over such proofalong with endorsement to the Investigator. It shall be total discretion of the petitioner tochoose between surety bonds and fixed deposits. It shall also be open for the petitionerto apply for substitution of fixed deposit with surety bonds and vice-versa. Subject tothe proceedings under S. 446 CrPC, if any, the entire amount of fixed deposit along withinterest credited, if any, shall be endorsed/returned to the depositor(s). Such Court shallhave a lien over the FD up to the expiry of the period mentioned under S. 437-A CrPC,1973, or as the case may be. The furnishing of the personal bonds shall be deemedacceptance of the following and all other stipulations, terms, and conditions of this bailorder:

a)The petitioner to give security to the concerned Court(s) for attendance.Once the trial begins, the petitioner shall not, in any manner, try to delay thetrial. The petitioner undertakes to appear before the concerned Court, on theissuance of summons/warrants by such Court. The petitioner shall attend thetrial on each date, unless exempted, and in case of appeal, also promise toappear before the higher Court, in terms of Section 437-A CrPC. Once the trial begins, the petitioner shall not, in any manner, try to delay thetrial. The petitioner undertakes to appear before the concerned Court, on theissuance of summons/warrants by such Court. The petitioner shall attend thetrial on each date, unless exempted, and in case of appeal, also promise toappear before the higher Court, in terms of Section 437-A CrPC.

b)The attesting officer shall mention on the reverse page of personal bonds,the permanent address of the petitioner along with the phone number(s),WhatsApp number (if any), email (if any), and details of personal bankaccount(s) (if available).

c)The petitioner shall join investigation as and when called by theInvestigating Officer or any Superior Officer. Whenever the investigation takesplace within the boundaries of the Police Station or the Police Post, then thepetitioner shall not be called before 8 AM and shall be let off before 5 PM. Thepetitioner shall not be subjected to third-degree methods, indecent language,inhuman treatment, etc.

d)The petitioner shall cooperate with the investigation at all further stagesas may be required, and in the event of failure to do so, it will be open for theprosecution to seek cancellation of the bail granted by the present order.as may be required, and in the event of failure to do so, it will be open for theprosecution to seek cancellation of the bail granted by the present order.

e)The petitioner shall not influence, browbeat, pressurize, make anyinducement, threat, or promise, directly or indirectly, to the witnesses, theinducement, threat, or promise, directly or indirectly, to the witnesses, the Police officials, or any other person acquainted with the facts of the case, todissuade them from disclosing such facts to the Police, or the Court, or totamper with the evidence.

f)Once the trial begins, the petitioner shall not in any manner try to delaythe trial. The petitioner undertakes to appear before the concerned Court, on theissuance of summons/warrants by such Court. The petitioner shall attend thetrial on each date, unless exempted.

g)In addition to standard modes of processing service of summons, theconcerned Court may serve the accused through E-Mail (if any), and anyinstant messaging service such as WhatsApp, etc. (if any). [Hon’ble SupremeCourt of India in Re Cognizance for Extension of Limitation, Suo Moto WritPetition (C) No. 3/2020, I.A. No. 48461/2020- July 10, 2020].

h)The concerned Court may also inform the accused about the issuance ofbailable and non-bailable warrants through the modes mentioned above.

i)In the first instance, the Court shall issue summons and may send suchsummons through SMS/ WhatsApp message/ E-Mail.

j)In case the petitioner fails to appear before the Court on the specifieddate, then the concerned Court may issue bailable warrants, and to enable theaccused to know the date, the Court may, if it so desires, also inform thepetitioner about such Bailable Warrants through SMS/ WhatsApp message/ E-Mail.

k)Finally, if the petitioner still fails to put in an appearance, then theconcerned Court may issue Non-Bailable Warrants to procure the petitioner'spresence and send the petitioner to the Judicial custody for a period for whichthe concerned Court may deem fit and proper to achieve the purpose.

l)In case of non-appearance, then irrespective of the contents of the bailbonds, the petitioner undertakes to pay all the expenditure (only the principalamount without interest), that the State might incur to produce him before suchCourt, provided such amount exceeds the amount recoverable after forfeitureof the bail bonds, and also subject to the provisions of Sections 446 & 446-A ofCrPC. The petitioner's failure to reimburse the State shall entitle the trial Courtto order the transfer of money from the bank account(s) of the petitioner.However, this recovery is subject to the condition that the expenditure incurred must be spent to trace the petitioner alone and it relates to the exerciseundertaken solely to arrest the petitioner in that FIR, and during that voyage,the Police had not gone for any other purpose/function what so ever.m)The petitioner shall intimate about the change of residential address andchange of phone numbers, WhatsApp number, e-mail accounts, within thirtydays from such modification, to the Police Station of this FIR, and also to theconcerned Court.

n)In case of violation of any of the conditions as stipulated in this order, theState/Public Prosecutor may apply for cancellation of bail of the petitioner.Otherwise, the bail bonds shall continue to remain in force throughout the trialand also after that in terms of Section 437-A of the CrPC.

o)It is further clarified that he shall not stalk orharass or follow the victimand in case he does so, then on this ground alone, the protection shall becancelled ipso facto.

12. The learned Counsel representing the accused and the Officer in whosepresence the petitioner puts signatures on personal bonds shall explain all conditionsof this bail order to the petitioner, in vernacular and if not feasible, in Hindi orEnglish.

13. In case the petitioner finds the bail condition(s) as violating fundamental,human, or other rights, or causing difficulty due to any situation, then formodification of such term(s), the petitioner may file a reasoned application beforethis Court, and after taking cognizance, even before the Court taking cognizance orthe trial Court, as the case may be, and such Court shall also be competent to modifyor delete any condition.

14. This order does not, in any manner, limit or restrict the rights of the Police orthe investigating agency, from further investigation in accordance with law.

15Any observation made hereinabove is neither an expression of opinion on themerits of the case, nor shall the trial Court advert to these comments.

16. The SHO of the concerned Police Station or the Investigating Officer shallarrange to send a copy of this order, preferably a soft copy, to the victim, at theearliest. In case the victim notices stalking or any violation of this order, she may

either inform the SHO of the concerned Police Station or write to the Trial Court oreven to this Court.

17. In return for the protection from incarceration, the Court believes that theaccused shall also reciprocate through desirable behavior.

The petition stands allowed in the terms mentioned above.

Authenticated copy.

31.12. 2020(mamta)

(Anoop Chitkara),Judge.