IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 669 2017
Decided on: 9th August, 2017
Eshan Akthar ….Petitioner

.

Versus

State of Himachal Pradesh …Respondent
Coram
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.

Whether approved for reporting?1 Yes.

For the petitioner: Mr. Imran Khan, Advocate.
For the respondent/State: Mr. Virender K. Verma, Addl. AG, with
Mr. Pushpinder Jaswal, Deputy Advocate
General.

For the complainant: Mr. Rajiv Rai, Advocate.
_
Chander Bhusan Barowalia, Judge. (oral).

The present bail application has been maintained by the

petitioner under Section 438 of the Code of Criminal Procedure for

releasing him on bail, in the event of his arrest, in case FIR No. 7 of

2017, dated 16.05.2017, registered under Sections 354A, 354B, 354C

and 376 of Indian Penal Code, 1860 (for short “IPC”), at Women Police

Station Dharamshala, District Kangra, H.P.

2. As per the learned counsel for the petitioner, the petitioner

is innocent and has been falsely implicated in the present case. He is

permanent resident of District Bilaspur and neither in a position to

tamper with the prosecution evidence nor in a position to flee from

justice, thus he may be released on bail.

3. Police reports stand filed. As per the prosecution story, on

16.05.2017, the prosecutrix lodged a complaint against the petitioner

alleging that she is working as Staff Nurse and the petitioner is working

1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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as a Teacher. The prosecutrix has further alleged that she met the

petitioner in June, 2016, and they became good friends. Both of them

got clicked photographs together and the petitioner used to take the

.

prosecutrix perforce to guest houses and he also used to take her

pictures after making her nude. The petitioner also threatened the

prosecutrix whenever she used to stop him. The petitioner every time

used to say that he will commit suicide and he also used to weep in

front of the prosecutrix, thus the prosecutrix agreed to the demands of

the petitioner. As per the prosecution, the petitioner used to maintain

relations with the prosecutrix. The prosecutrix has further alleged in

her complaint that the petitioner thereafter made her to believe that

she is doing wrong and one day he slapped her eight times. The police

registered a case against the petitioner under Sections 354A, 354B,

354C and 376 IPC and conducted the investigation. As per the police

report, the recoveries have already been effected and now the voice

sample of the accused has to be taken.

4. I have heard the learned counsel for the petitioner, learned

Additional Advocate General for the State, learned counsel for the

prosecutrix (complainant) and gone through the record, including the

police report, carefully.

5. The learned counsel for respondent No. 2 (prosecutrix) has

relied upon the decision of a Co-ordinate Bench of this Hon’ble High

Court, rendered in Cr.MP(M) No. 815 of 2014, Jolly Bansal vs. State

of Himachal Pradesh, dated 14.08.2014, wherein vide para 6

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(relevant portion whereof has been extracted for ready reference) it has

been held as under:

“6. … … … … … …

.

Court is of the opinion that applicant is
not entitled for relief of anticipatory

bail due to his own act and conduct and
due to the fact that proceedings under
Section 82 Cr.P.C. initiated against
applicant by learned Chief Judicial

Magistrate for declaring him as
proclaimed offender. It is held that
custodial interrogation of applicant is
essential in present case in order to
ascertain the preparation of CD and in
order to ascertain the fact that how the

copy of CD transmitted to Mandi.

Custodial interrogation of applicant is
also essential in present case in order
to recover original hard disk of
computer and laptop through which
r obscene recording was conducted and
transmitted. Custodial interrogation is

essential in present case in order to
recover mobile phone through which
SMS were sent to co-accused Lawan
Thakur. Custodial interrogation of
applicant is essential in present case in
order to ascertain whether obscene

video/CD were prepared in the presence
of applicant or not.”

However, in the present case the recoveries have already been effected

and nothing remains to be recovered at the instance of the petitioner,

so the judgment (supra) is not applicable to the facts of the present

case, thus the same cannot be relied upon.

6. Similarly, the learned Counsel for the prosecutrix has

relied upon K.K. Jerath vs. Union territory, Chandigarh and

others, (1998) 4 SCC 80, and Muraleedharan vs. State of Kerala,

(2001) 4 SCC 638, but in the case in hand, the petitioner is neither in

a position to tamper with the prosecution evidence nor his custodial

interrogation is necessary, therefore, the judgments, as referred

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hereinabove, are not applicable to the facts of the present case, as the

petitioner is fully co-operating in the investigation and recoveries have

already been effected, thus custodial interrogation of the petitioner is

.

not required at all. The petitioner, as held above, is not in a position to

tamper with the prosecution evidence, as is evident from the police

record and at the same point of time it has been held as under, vide

para 122, in Siddharam Satlingappa Mhetre vs. State of

Maharashtra and others, AIR 2011 Supreme Court 312:

“122. The following factors and parameters
can be taken into consideration while
dealing with the anticipatory bail:

i. The nature and gravity of the
accusation and the exact role of the
r accused must be properly comprehended
before arrest is made;

ii. The antecedents of the applicant
including the fact as to whether the
accused has previously undergone
imprisonment on conviction by a Court
in respect of any cognizable offence;

iii. The possibility of the applicant to flee
from justice;

iv. The possibility of the accused’s
likelihood to repeat similar or the other
offences.

v. Where the accusations have been made
only with the object of injuring or

humiliating the applicant by arresting
him or her.

vi. Impact of grant of anticipatory bail
particularly in cases of large magnitude

affecting a very large number of people.
vii. The courts must evaluate the entire
available material against the accused
very carefully. The court must also
clearly comprehend the exact role of the
accused in the case. The cases in which
accused is implicated with the help of
sections 34 and 149 of the Indian Penal
Code, the court should consider with
even greater care and caution because
over-implication in the cases is a matter
of common knowledge and concern;
viii. While considering the prayer for grant
of anticipatory bail, a balance has to be
struck between two factors namely, no
prejudice should be caused to the free,
fair and full investigation and there

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should be prevention of harassment,
humiliation and unjustified detention of
the accused;

ix. The court to consider reasonable
apprehension of tampering of the
witness or apprehension of threat to the
complainant;

.

x. Frivolity in prosecution should always

be considered and it is only the element
of genuiness that shall have to be
considered in the matter of grant of bail
and in the event of there being some
doubt as to the genuiness of the

prosecution, in the normal course of
events, the accused is entitled to an
order of bail.”

The judgment (supra) is fully applicable to the facts of the present case

r to
as the petitioner is neither in a position to tamper with the prosecution

evidence nor he is in a position to flee from justice, as he is working as

Teacher, having permanent property in Himachal Pradesh. Thus,

taking into consideration the situation of the parties, this Court finds

that the present is a fit case where the judicial discretion to admit the

petitioner on bail, in the event of his arrest, is required to be exercised

in his favour. Under these circumstances, it is ordered that the

petitioner be released on bail, in the event of his arrest, in case FIR No.

7 of2017, dated 16.05.2017, which has been registered under Sections

354A, 354B, 354C and 376 IPC, on his furnishing personal bond to the

tune of `10,000/- (rupees ten thousand only) with one surety in the

like amount to the satisfaction of Investigating Officer. The bail is

granted subject to the following conditions:

(i) That the petitioner will join investigation of the
case as and when called for by the Investigating
Officer in accordance with law.

(ii) That the petitioner will not leave India without
prior permission of the Court.

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(iii) That the petitioner will not directly or indirectly
make any inducement, threat or promise to any
person acquainted with the facts of the case so
as to dissuade him/her from disclosing such
facts to the Investigating Officer or Court.

.

7. In view of the above, the petition is disposed of.

Copy dasti.

(Chander Bhusan Barowalia)
9th August, 2017 Judge
(virender)

r to

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