CRMPM/2223/2020 of KULJIT KAUR ALIAS SHALLU Vs STATE OF HP on 31 December 2020

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

Cr.MP(M) No. 2223 of 2020

Date of decision: December 31, 2020.

Kuljit Kaur @ Shallu…...Petitioner.

Versus

State of Himachal Pradesh

.....Respondent.

Coram

Ms. Justice Jyotsna Rewal Dua, Judge.

Whether approved for reporting?[1]

For the petitioner: Mr. N.K. Thakur, Senior Advocatewith Mr. Ashok Kumar, Advocate. For the respondent:Mr. Anil Jaswal, Addl. AG.

(through Video Conferencing).

Jyotsna Rewal Dua, Judge (Oral)

The petitioner is a lady, aged 54 years and mother oftwo children. She has been accused of offences under Sections376(2)(L), 384, 506 and 120(B) of Indian Penal Code. FIR No.63/2020 in this regard has been registered on 7.12.2020 at PoliceStation, Chintpurni, District Una. Instant bail petition has beenpreferred by her under Section 438 of Code of CriminalProcedure.

2. The FIR was registered on the basis of a writtencomplaint lodged at Police Station, Chintpurni on 7.12.2020 by 1Whether the reporters of the local papers may be allowed to see theJudgment?Judgment?

the husband of the victim to the effect that on 11.11.2020 hiswife (victim) informed him about her sexual exploitation in thehands of one Narinder Kumar, resident of village DharamshalaMahantan, District Una and her subsequent blackmail on thatcount by accused Narinder Kumar as well as by the petitioner.

3. The case of the prosecution as it comes outcumulatively from the status report and from the appendedrecord is that the victim got acquainted with Narinder Kumar on‘Tiktok’ in the year 2018. Said Narinder Kumar allegedly starteddemanding money from her within a month of theiracquaintance. The victim used to visit a gym at Kurukshetra(Haryana) where the petitioner was employed as a gym trainer.The victim aged around 35 years is a house wife. At time whenshe was unable to talk to accused Narinder Kumar on phone inconfines of her home, then she used to talk to him in the abovedescribed gym. This was statedly observed by the petitioner, inwhom the victim confided her problem. On petitioner’sinsistence, the victim disclosed to her the telephone number ofaccused Narinder Kumar. Further allegations are that thepetitioner on her own called Narinder Kumar to her home inKurukshetra, where the victim also met him. Against victim’swishes, physical relations were established with her by NarinderKumar many times in October/November 2018. This was allfacilitated by the petitioner. The ‘act’ was allegedly captured on camera/video. Subsequently, the victim was blackmailed byNarinder Kumar as well as by the petitioner. Under the threat ofblackmail, the victim had paid around Rupees twenty two lacs toaccused Narinder Kumar and around Rupees ten lacs to the bailpetitioner. Accused Narinder Kumar was arrested on 23.12.2020.4.Learned Senior Counsel for the petitioner argued thatpetitioner is innocent and has been falsely implicated with theoffences. Petitioner is aged 54 years and belongs to respectablefamily, having children of her own and has no criminalantecedents. Learned Senior Counsel further contended thatoffences, if any, are alleged to have been committed in theState of Haryana, therefore, in terms of Section 177 of Code ofCriminal procedure, the FIR in question could not have beenregistered in State of Himachal Pradesh. He further submittedthat pursuant to the interim protection granted by a co-ordinateBench of this Court to the petitioner on 18.12.2020, she hasrepeatedly joined the investigations as and when directed by theinvestigating agency. In case of her enlargement on bail, thepetitioner will abide by all the terms and conditions, which maybe imposed upon her and shall continue to join and co-operatethe investigating agency.

While opposing the bail petition, learned AdditionalAdvocate General argued that petitioner is accused of seriousand heinous offences. The investigation in the case is at an

initial stage. The petitioner though has joined the investigationsbut is not co-operating with the investigating agency, therefore,her custodial interrogation is warranted.

5(i)Having gone through the record made available bythe respondent, certain aspects which are relevant foradjudicating this bail petition may be noticed. The victim hadstatedly narrated her tale of sexual exploitation and blackmail inthe hands of Narinder Kumar and petitioner to herhusband/complainant on 11.11.2020. The incidents were allegedto have happened in October/December, 2018. The complaint,however, was lodged by the husband of the victim on 7.12.2020i.e. almost a month later from the alleged date of narration ofevents by the victim and almost two years later from the date ofalleged offences.

5(ii)The husband of the victim on coming to know of thesexual exploitation and subsequent blackmail of his wife,immediately on 11.11.2020 rushed to village DharamshalaMahantan in district Una and allegedly executed certainagreements on different dates with accused Narinder Kumar forgetting back the money and articles statedly received by himfrom the victim. The agreements do not mention about anyvideo/camera clippings regarding the alleged incidents. There isno mention in the agreements about involvement of the bailpetitioner.

5(iii)The victim is a mature lady, aged around 35 years.She is stated to be a mental patient. Some of her medicalprescription slips covering period from the year 2010 to 2016 areon record but what is the exact nature of her disease andwhether she is still suffering from this disease is not discernibleat this stage. The MLC of the victim mentions about herdisclosing the fact that she had no sexual contact with theaccused after November 2019 and that she also had no sexualcontact with her husband ever since then.

5(iv) The case of petitioner is different from that ofaccused Narinder Kumar. In the facts and circumstances of thecase, it cannot be said at this stage that petitioner had facilitatedvictim’s alleged sexual exploitation, if any, in the hands ofaccused Narinder Kumar or was guilty of this offence or that shehad blackmailed her. There are the issues which are to beproved during trial by leading cogent evidence. The offenceunder Section 384 IPC carries punishment for three years,whereas the offence under Section 506 IPC is bailable carryingpunishment of two years. The petitioner has no criminalantecedents and is resident of Thanesher Kurukshetra (Haryana).She has reportedly joined the investigation multiple times as andwhen directed by the investigating agency. Regarding heralleged non-cooperation, suffice to observe that it is for theinvestigating agency to bring out the truth in accordance with law. There is no allegation in the status report about petitioner’sintimidating the victim or the complainant during the currency ofinterim bail granted to her. These aspects can even otherwise betaken care of by imposing stringent conditions.

5(v)In respect of objection raised by learned SeniorCounsel regarding territorial jurisdiction for registering the FIR, itwill be apposite to take note of a recent judgment passed byHon’ble Apex Court in Transfer Petition (CRL.) No. 456 of 2019,titled Kaushik Chatterjee versus State of Haryana & ors.,decided on 30.9.2020, wherein the petitioners were seekingtransfer of three criminal cases registered against him on groundof incompetence of the Court on count of territorial jurisdiction.The Apex Court observed that:-

“18…...the question of territorial jurisdiction in criminal casesrevolves around (i) place of commission of the offence or (ii) placewhere the consequence of an act, both of which constitute anoffence, ensues or (iii) place where the accused was found or (iv)place where the victim was found or (v) place where the property inrespect of which the offence was committed, was found or (vi) placewhere the property forming the subject matter of an offence wasrequired to be returned or accounted for, etc., according as the casemay be…..”.

“19. While jurisdiction of a civil court is determined by (i) territorialand (ii) pecuniary limits, the jurisdiction of a criminal court isdetermined by (i) the offence and/or (ii) the offender. But the maindifference between the question of jurisdiction raised in civil casesand the question of jurisdiction arising in criminal cases, is two fold.(i) The first is that the stage at which an objection as to jurisdiction,territorial or pecuniary, can be raised, is regulated in civilproceedings by Section 21 of the Code of Civil Procedure, 1908.There is no provision in the Criminal Procedure Code akin to Section21 of the Code of Civil Procedure.

(ii) The second is that in civil proceedings, a plaint can be returned,under Order VII, Rule 10, CPC, to be presented to the proper court,at any stage of the proceedings. But in criminal proceedings, alimited power is available to a Magistrate under section 201 of theCode, to return a complaint. The power is limited in the sense (a)that it is available before taking cognizance, as section 201 uses thewords “Magistrate who is not competent to take cognizance” and (b)that the power is limited only to complaints, as the word“complaint”, as defined by section 2(d), does not include a “policereport”.

After considering the definition clause, chapter-XIIIand fate of irregular proceedings under Chapter XXXV of Cr.P.C., it was observed in paras 33 and 38 as under:- “33. In other words, the jurisdiction of a criminal Court is normallyrelatable to the offence and in some cases, to the offender, such ascases where the offender is a juvenile (section 27) or where thevictim is a women [the proviso to clause (a) of section 26]. ButSection 461(l) focuses on the offender and not on the offence.”

“38. From the above discussion, it is possible to take a view thewords “tries an offence” are more appropriate than the words “triesan offender” in section 461 (l). This is because, lack of jurisdiction totry an offence cannot be cured by section 462 and hence section461, logically, could have included the trial of an offence by aMagistrate, not empowered by law to do so, as one of the severalitems which make the proceedings void. In contrast, the trial of anoffender by a court which does not have territorial jurisdiction, canbe saved because of section 462, provided there is no other bar forthe court to try the said offender (such as in section 27). But Section461 (l) makes the proceedings of a Magistrate void, if he tried anoffender, when not empowered by law to do.”

The legal position was summed up in followingparas-

The legal position was summed up in followingparas- “39. But be that as it may, the upshot of the above discussion is (i)that the issue of jurisdiction of a court to try an “offence” or“offender” as well as the issue of territorial jurisdiction, depend upon facts established through evidence (ii) that if the issue is oneof territorial jurisdiction, the same has to be decided with respect tothe various rules enunciated in sections 177 to 184 of the Code and(iii) that these questions may have to be raised before the courttrying the offence and such court is bound to consider the same”.

“40. Having taken note of the legal position, let me now come backto the cases on hand.”

“41. As seen from the pleadings, the type of jurisdictional issue,raised in the cases on hand, is one of territorial jurisdiction, atleastas of now. The answer to this depends upon facts to be establishedby evidence. The facts to be established by evidence, may relateeither to the place of commission of the offence or to other thingsdealt with by Sections 177 to 184 of the Code. In suchcircumstances, this Court cannot order transfer, on the ground oflack of territorial jurisdiction, even before evidence is marshaled.Hence the transfer petitions are liable to be dismissed. Accordingly,they are dismissed.”

These aspects need not be gone into at this stage.However, in view of above judgment, it shall be open for thepetitioner to raise this question at an appropriate stage inaccordance with law.

In view of the above discussion, the instant petition isallowed and the interim protection granted in favour of thepetitioner vide order dated 18.12.2020 is confirmed subject tofollowing conditions:

(i) Petitioner is directed to join the investigation of thecase as and when called for by the Investigating Officer inaccordance with law. She shall fully cooperate theInvestigating Officer and will appear before him in theconcerned police station as and when called in accordancewith law;

(ii) Petitioner shall not temper with the evidence orhamper the investigation in any manner whatsoever:

(iii) Petitioner shall not contact the complainant or hisfamily members in any manner whatsoever. Petitionershall not contact, threaten or intimidate the victim in anymanner whatsoever.

(iv) Petitioner will not leave India without priorpermission of the Court.

(v) Petitioner shall not make any inducement, threat orpromise, directly or indirectly, to the Investigating Officeror any person acquainted with the facts of the case todissuade him/her from disclosing such facts to the Court orany Police Officer;

(vi) In case of launching of prosecution, petitioner shallattend the trial on every hearing, unless exempted inaccordance with law.

(vii) Petitioner shall inform the Station House Officer ofthe concerned police station about her place of residenceduring bail and trial. Any change in the same shall also becommunicated within two weeks thereafter. Petitioner shallfurnish details of his Aadhar Card, Telephone Number, E-mail, PAN Card, Bank Account Number, if any.

In case of violation of any of the terms & conditionsof the bail, respondent-State shall be at liberty to moveappropriate application for cancellation of the bail. It is madeclear that observations made above are only for the purpose ofadjudication of instant bail petition and shall not be construed asan opinion on the merits of the matter. Learned trial Court shalldecide the matter without being influenced by aboveobservations.

With the aforesaid observations, the present petitionstands disposed of, so also the pending miscellaneousapplications, if any.

Copy Dasti.

Jyotsna Rewal Dua Judge.

December 31, 2020, (vs)