HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
Cr.MP(M) Nos.32/2018 33/2018
Date of decision: January 19, 2018
Cr.MP(M) No.32/2018
Ram Pal …..Petitioner
Versus
State of H.P. ….Respondent
Cr.MP(M) No.33/2018
Vijay Kumar …..Petitioner
Versus
State of H.P.
r ….Respondent
Coram:
The Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 No
For the petitioners :Mr. Sanjeev K. Suri, Advocate
For the respondent :Mr. Rajat Chauhan, Law Officer
Sandeep Sharma, J. (Oral)
Both the bail petitioners have approached this Court, by way of
instant bail petitions filed under Section 438 Cr.PC, praying therein for
grant of anticipatory bail in case FIR No.3/2018 dated 03.01.2018
registered at Police Station Amb, Distt. Una (H.P.), under Sections 376,
498A, 506 IPC.
2. Sequel to order dated 15.01.2018, whereby the bail petitioners
were ordered to be enlarged on interim bail, HC Sunil Kumar, Women
1
Whether the reporters of Local Papers may be allowed to see the judgment?
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Police Station, Una, has come present alongwith the record. Mr. Rajat
.
Chauhan, learned Law Officer has also filed status report prepared on the
basis of investigation carried out by the Investigating Agency. Records
perused and returned.
3. Records/status report reveals that the FIR mentioned hereinabove
came to be registered against the bail petitioners at the behest of
complainant/prosecutrix, namely, Renu Bala, who on 02.01.2018 in a
letter addressed to Dy.SP, Amb, alleged that the bail petitioners
threatened her to kill and forcibly developed physical relations with her.
Records/status report further reveals that the marriage of complainant/
prosecutrix was solemnized in the year 2003 as per Hindu customs and
she has one son who was born in the year 2004. Since relations of
complainant/prosecutrix were not cordial with her husband, namely, Ajay
Kumar, she after five years of her marriage left her matrimonial house and
started living at her paternal house. As per the compliant submitted by the
complainant/prosecutrix, ten years back the bail petitioner, namely, Vijay
Kumar came to her in her paternal house and extended threats. The bail
petitioner asked the complainant/prosecutrix to return `4.00 lacs spent by
him in her marriage. Allegedly the above named bail petitioner brought
the complainant/prosecutrix back to her matrimonial house but after some
time, both the bail petitioners compelled her to solemnize marriage with
bail petitioner Ram Pal. Allegedly on the pretext of marriage, bail
petitioner Ram Pal repeatedly sexually assaulted the complainant/
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prosecutrix. The complainant/prosecutrix lodged complaint at Police
.
Station, Amb, but the same came to be compromised on 26.12.2017,
wherein allegedly the bail petitioner Ram Pal agreed to marry with the
sister of complainant/prosecutrix. The complainant/ prosecutrix alleged
that since she is an illiterate lady, she did not know that what has been
written in compromise. Now, since the bail petitioner Ram Pal has refused
to marry with the sister of complainant/prosecutrix, she has lodged
present complaint seeking therein action against the bail petitioners in
accordance with law. In the aforesaid background, case under Sections
376, 498-A 506 IPC has been registered against the bail petitioners.
4. Mr. Sanjeev Kumar Suri, learned counsel representing the bail
petitioners, while referring to the record/status report vehemently argued
that no case, if any, is made out against the bail petitioners under
Sections 376, 498-A 506 IPC, because nothing has come in investigation
against the bail petitioners suggestive of the fact that they forcibly and
against the wishes of complainant/prosecutrix sexually assaulted her
repeatedly as alleged by her. Mr. Suri further contended that if the report
submitted by the complainant/prosecutrix is read carefully, it clearly
suggests that the incident, if any, pertains to ten years back and there is
nothing on record that during this period of ten years, the complaint was
ever lodged by the complainant/prosecutrix either before the Gram
Panchayat, or before the police and, as such, the bail petitioners are
deserved to be enlarged on bail. Mr. Suri further contended that it clearly
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emerges from the status report that the complainant/prosecutrix has
.
refused to undergo medical examination and, as such, there is no force in
the allegations levelled by the complainant/prosecutrix. Mr. Suri further
contended that in terms of order dated 15.01.2018, the bail petitioners
have already joined the investigation and nothing is required to be
recovered from them and, as such, they being local residents of the area
deserve to be enlarged on bail.
5. Mr. Rajat Chauhan, learned Law Officer while opposing the
prayer of bail having been made on behalf of bail petitioners contended
that there is ample evidence available on record suggestive of the fact
that the bail petitioners taking undue advantage of a poor plight of
complainant/prosecutrix not only threatened her but repeatedly sexually
assaulted her. Mr. Chauhan further contended that true it is that the
complainant has refused to undergo medical examination but that cannot
be a ground to enlarge the bail petitioners on bail especially when there is
overwhelming evidence available on record that for a considerable time
both the bail petitioners, who happened to be son and father, tortured,
harassed and sexually assaulted the complainant/prosecutrix. Mr.
Chauhan fairly acknowledged that the bail petitioners have joined the
investigation and at this stage nothing is required to be recovered from
them and investigation is almost complete save and except certain
statements of neighbourers are yet to be recorded.
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6. I have heard learned counsel for the parties and gone through
.
the record carefully.
7. Perusal of the record/status report clearly suggests that the
incident as reported by the complainant/prosecutrix pertains to the year
2007. As per the complainant, ten years back, bail petitioner, namely,
Vijay Kumar approached her at her matrimonial house and asked her to
return `4.00 lacs spent by him on her marriage. She also stated that
subsequently she again returned to her matrimonial house at Nehri
Nauranga on the asking of bail petitioner Ram Pal, who on the pretext of
marriage repeatedly sexually assaulted her.
8. After having perused the material available on record, this Court
finds considerable force in the arguments of Mr. Sanjeev Kumar Suri that
there is nothing on record suggestive of the fact that during above said
period, the complaint, if any, was ever lodged by the complainant/
proseucutrix against the bail petitioners, rather the conduct of the
complainant suggests that she had prior acquaintance with the bail
petitioners and she had been meeting them frequently. Otherwise also
latest report submitted by the complainant to the police suggests that
since the bail petitioner Ram Pal refused to marry with her younger sister,
she sought action against them allegedly for committing offences under
Sections 376, 498A 506 IPC. Though aforesaid aspects of the matter
are to be considered and decided by the Court below but careful perusal
of the material adduced on record, nowhere suggests that the bail
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petitioners are involved in the crime alleged to have been committed by
.
them under Sections 376, 498A 506 IPC, as such, they cannot be
allowed to incarcerate in jail for indefinite period during the trial. Also, this
Court cannot loose sight of the fact that the prosecutrix has refused to
undergo the medical treatment. Otherwise also, the bail petitioners have
joined the investigation, and nothing is required to be recovered from
them. Mr. Sanjeev Kumar Suri, learned counsel representing the bail
petitioners undertakes that the bail petitioners shall make them available
for investigation as and when required by the Investigating Agency.
9. Otherwise also, normal rule is of bail and not jail. Apart from
above, Court has to keep in mind nature of accusations, nature of
evidence in support thereof, severity of the punishment which conviction
will entail, character of the accused, circumstances which are peculiar to
the accused involved in that crime. Petitioners are local residents of the
place mentioned in the application and they shall remain available to face
the trial and to undergo imprisonment, if any, imposed upon them.
10. The Apex Court in Prasanta Kumar Sarkar versus Ashis
Chatterjee and another (2010) 14 SCC 496, has laid down the
following principles to be kept in mind, while deciding petition for bail:
(i) Whether there is any prima facie or reasonable ground to
believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
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(iv) danger of the accused absconding or fleeing, if released
on bail;
.
(v) character, behaviour, means, position and standing of the
accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being
influenced; and
(viii) danger, of course, of justice being thwarted by grant of
bail.
11. In view of above, order dated 15.01.2018 is made absolute,
subject to following conditions:
(a) Petitioners shall make themselves available for the purpose of
interrogation, if so required and regularly attend the trial Court on
each and every date of hearing and if prevented by any reason todo so, seek exemption from appearance by filing appropriate
application;
(b) Petitioners shall not tamper with the prosecution evidence nor
hamper the investigation of the case in any manner whatsoever;
(c) Petitioners shall not make any inducement, threat or promises
to any person acquainted with the facts of the case so as to
dissuade him/her from disclosing such facts to the Court or the
Police Officer; and
(d) Petitioners shall not leave the territory of India without the
prior permission of the Court.
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12. It is clarified that if the petitioners misuse the liberty or violate
.
any of the conditions imposed upon them, the investigating agency shall
be free to move this Court for cancellation of the bail.
13. Any observations made hereinabove shall not be construed to
be a reflection on the merits of the case and shall remain confined to the
disposal of these applications alone.
14. The petitions stand accordingly disposed of.
Copy dasti.
January 19, 2018 (Sandeep Sharma),
(rana) Vacation Judge.
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