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Manoj Kumar vs State Of H.P on 31 January, 2020

1

HON’BLE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr.MP(M) No.75 of 2020
Decided on: 31.01.2020

Manoj Kumar ……….Petitioner

.

Versus

State of H.P. …….Respondent

Coram:

Hon’ble Ms. Justice Jyotsna Rewal Dua, Vacation Judge.

Whether approved for reporting?1
For the petitioner : Mr. Lakshay Parihar, Advocate.

For the respondent
r :

Mr. Ranjan Sharma, Mr. Sudhir
Bhatnagar and Mr. P.K. Bhatti,
Additional Advocate Generals with
Ms. Divya Sood and Ms. Svaneel
Jaswal, Dy. Advocate Generals.

ASI Asha Devi, Investigating
Officer, P.S. Una, District Una(H.P.)

Jyotsna Rewal Dua, Vacation Judge (Oral).

The petitioner has preferred the instant petition

under Section 438 Cr.P.C. for grant of anticipatory bail in FIR

No.1 of 2020, dated 08.01.2020, under Section 376 of Indian

Penal Code, registered at Women Police Station, Una, District

Una (H.P.).

2. The interim protection was granted to the petitioner

on 10.01.2020 subject to the terms and conditions stipulated

therein.

1

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

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3. The police has filed the status report today, which is

taken on record. I have heard learned counsel for the parties

and gone through the status report as well as relevant police

.

record for the purpose of adjudication of present petition.

4. The gist of the prosecution case is that:- a complaint

was preferred on 08.01.2020 by the prosecutrix to the effect

that:- the prosecutrix knew the bail petitioner for the past about

10 years, who is running a Medicines Shop at Santoshgarh; the

prosecutrix is married and has three children; her husband had

left her; she and the bail petitioner became friendly, they had

love affair and also developed physical relations; according to

the prosecutrix, she had consented to have physical relations

with the bail petitioner on account of promise of marriage

extended by him to her; she also alleges that the bail petitioner

forced the prosecutrix to have physical relations with him under

threat of uploading her some videos; further complaint of the

prosecutrix is that she was given some tablet by the bail

petitioner on 31.12.2019. On the basis of these allegations, the

FIR in question was registered against the bail petitioner at the

behest of prosecutrix and accordingly the investigation was

carried out by the police in the matter.

5. During investigation, it came out that:- prosecutrix was

married, had three children and has not been divorced by her

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husband; the physical relations developed between the bail

petitioner and the prosecutrix with their consent and they had

such relations for the past about 6-7 years; it has further come

.

in the investigation that the bail petitioner was unmarried and

wanted to marry someone else; previously also on 25.10.2017,

the prosecutrix though had also registered FIR No.332/2017

against the bail petitioner under Section 354 and 34 of the

Indian Penal Code, however, as per record produced by the

police, she herself withdrew this case on 11.09.2018; further,

on 05.12.2019, the prosecutrix entered the house of the bail

petitioner, entered into scuffle with him, quarreled with him and

insisted on marring the bail petitioner and to remain with him

at his home. The Video/C.D. of incident occurred on 05.12.2019,

produced by the bail petitioner, was taken into custody by the

police. Further, it has come in the status report that the

prosecutrix had herself taken some tablet from her cloth on

31.12.2019, regarding which incident, FIR No.444 of 2019 has

been lodged against her under Sections 451, 506 427 of the

Indian Penal Code at Police Station Sadar, Una, District Una

(H.P.). at the behest of the bail petitioner.

As per status report, pursuant to the interim order

dated 10.01.2020, the bail petitioner has joined the

investigation and is cooperating with the Investigation Agency.

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6. Therefore, in my considered view, at this stage, no

fruitful purpose will be served by sending the bail petitioner to

judicial custody.

.

7. It is apt to refer to guidelines for grant/refusal of

anticipatory bail, reiterated by Five Judges Constitution Bench

of the Hon’ble Apex Court, recently in Special Leave Petition

(Criminal) No.7281-7282 of 2017, titled Sushila

Aggarwal and others versus State (NCT of Delhi)

Another, decided on 29.01.2020, whereby the Apex Court,

while overruling r Siddharam Satlingappa Mhetre v. State of

Maharashtra and Others (2011) 1 SCC 694, to the extent that it

holds that no restrictive conditions can be imposed at all while

granting antiipatory bail, has observed as follows:-

“(3).Nothing in Section 438 Cr. PC, compels or obliges

courts to impose conditions limiting relief in terms
of time, or upon filing of FIR, or recording of
statement of any witness, by the police, during
investigation or inquiry, etc. While considering an

application (for grant of anticipatory bail) the court has to
consider the nature of the offence, the role of the person,

the likelihood of his influencing the course of
investigation, or tampering with evidence (including
intimidating witnesses), likelihood of fleeing justice
(such as leaving the country), etc. The courts would

be justified – and ought to impose conditions
spelt out in Section 437 (3), Cr. PC [by virtue of Section
438 (2)]. The need to impose other restrictive
conditions, would have to be judged on a case by case
basis, and depending upon the materials produced by the
state or the investigating agency. Such special or
other restrictive conditions may be imposed if the case
or cases warrant, but should not be imposed in a
routine manner, in all cases. Likewise, conditions
which limit the grant of anticipatory bail may be granted,
if they are required in the facts of any case or cases;

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however, such limiting conditions may not be
invariably imposed.

(4) Courts ought to be generally guided by
considerations such as the nature and gravity of the
offences, the role attributed to the applicant, and the
facts of the case, while considering whether to

.

grant anticipatory bail, or refuse it. Whether to grant or

not is a matter of discretion; equally whether and if so,
what kind of special conditions are to be imposed (or not
imposed) are dependent on facts of the case, and subject
to the discretion of the court.”

Hon’ble Apex Court in (2019) 9 SCC 24, titled as P.

Chidambaram versus Directorate of Enforcement, while dealing

with the powers of the Cout to grant anticipatory bail under

Section 438 Cr.P.C., held as under:-

69. Ordinarily, arrest is a part of procedure of the

investigation to secure not only the presence of the

accused but several other purposes. Power under Section
438 Cr.P.C. is an extraordinary power and the same has
to be exercised sparingly. The privilege of the pre-arrest
bail should be granted only in exceptional cases. The
judicial discretion conferred upon the court has to be

properly exercised after application of mind as to the
nature and gravity of the accusation; possibility of
applicant fleeing justice and other factors to decide
whether it is a fit case for grant of anticipatory bail. Grant
of anticipatory bail to some extent interferes in the

sphere of investigation of an offence and hence, the
court must be circumspect while exercising such power

for grant of anticipatory bail. Anticipatory bail is not to be
granted as a matter of rule and it has to be granted only
when the court is convinced that exceptional
circumstances exist to resort to that extraordinary

remedy.

72. We are conscious of the fact that the legislative
intent behind the introduction of Section 438 Cr.P.C. is to
safeguard the individual’s personal liberty and to protect
him from the possibility of being humiliated and from
being subjected to unnecessary police custody. However,
the court must also keep in view that a criminal offence
is not just an offence against an individual, rather the
larger societal interest is at stake. Therefore, a delicate
balance is required to be established between the two

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rights – safeguarding the personal liberty of an individual
and the societal interest. It cannot be said that refusal to
grant anticipatory bail would amount to denial of the
rights conferred upon the appellant under Article 21 of
the Constitution of India.

74. Ordinarily, arrest is a part of the process of the

.

investigation intended to secure several purposes. There

may be circumstances in which the accused may provide
information leading to discovery of material facts and
relevant information. Grant of anticipatory bail may
hamper the investigation. Pre-arrest bail is to strike a

balance between the individual’s right to personal
freedom and the right of the investigating agency to
interrogate the accused as to the material so far
collected and to collect more information which may lead
to recovery of relevant information. In State Rep. By The

CBI v. Anil Sharma (1997) 7 SCC 187, the Supreme Court
held as under:-

“6. We find force in the submission of the CBI that
custodial interrogation is qualitatively more elicitation-
oriented than questioning a suspect who is well

ensconced with a favourable order under Section 438 of

the Code. In a case like this effective interrogation of a
suspected person is of tremendous advantage in
disinterring many useful informations and also materials
which would have been concealed. Success in such
interrogation would elude if the suspected person knows
that he is well protected and insulated by a pre-arrest bail

order during the time he is interrogated. Very often
interrogation in such a condition would reduce to a mere
ritual. The argument that the custodial interrogation is
fraught with the danger of the person being subjected to

third-degree methods need not be countenanced, for,
such an argument can be advanced by all accused in all

criminal cases. The Court has to presume that
responsible police officers would conduct themselves in a
responsible manner and that those entrusted with the
task of disinterring offences would not conduct

themselves as offenders.”

75. Observing that the arrest is a part of the investigation
intended to secure several purposes, in Adri Dharan Das
v. State of W.B. (2005) 4 SCC 303, it was held as under:-
“19. Ordinarily, arrest is a part of the process of
investigation intended to secure several purposes. The
accused may have to be questioned in detail regarding
various facets of motive, preparation, commission and
aftermath of the crime and the connection of other
persons, if any, in the crime. There may be circumstances

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in which the accused may provide information leading to
discovery of material facts. It may be necessary to curtail
his freedom in order to enable the investigation to
proceed without hindrance and to protect witnesses and
persons connected with the victim of the crime, to
prevent his disappearance, to maintain law and order in
the locality. For these or other reasons, arrest may

.

become an inevitable part of the process of investigation.

The legality of the proposed arrest cannot be gone into in
an application under Section 438 of the Code. The role of
the investigator is well defined and the jurisdictional
scope of interference by the court in the process of

investigation is limited. The court ordinarily will not
interfere with the investigation of a crime or with the
arrest of the accused in a cognizable offence. An interim
order restraining arrest, if passed while dealing with an
application under Section 438 of the Code will amount to

interference in the investigation, which cannot, at any
rate, be done under Section 438 of the Code.”

76. In Siddharam Satlingappa Mhetre v. State of
Maharashtra and Others (2011) 1 SCC 694, the Supreme
Court laid down the factors and parameters to be

considered while dealing with anticipatory bail. It was

held that the nature and the gravity of the accusation and
the exact role of the accused must be properly
comprehended before arrest is made and that the court
must evaluate the available material against the accused
very carefully. It was also held that the court should also

consider whether the accusations have been made only
with the object of injuring or humiliating the applicant by
arresting him or her.

77. After referring to Siddharam Satlingappa Mhetre and

other judgments and observing that anticipatory bail can
be granted only in exceptional circumstances, in Jai
Prakash Singh v. State of Bihar and another (2012) 4 SCC

379, the Supreme Court held as under:-

“19. Parameters for grant of anticipatory bail in a serious
offence are required to be satisfied and further while

granting such relief, the court must record the reasons
therefor. Anticipatory bail can be granted only in
exceptional circumstances where the court is prima facie
of the view that the applicant has falsely been enroped in
the crime and would not misuse his liberty. (See D.K.
Ganesh Babu v. P.T. Manokaran (2007) 4 SCC 434, State
of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain
(2008) 1 SCC 213 and Union of India v. Padam Narain
Aggarwal (2008) 13 SCC 305.)”

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8. Considering the totality of the facts and circumstances of

the case, which has come on record during the investigation

and taking into account the fact that the bail petitioner is

.

permanent resident of Village Ajnoli, Post Office Kotla Kalan,

District Una (H.P.), it is apparent that the present is a case

where the interim protection granted on 10.01.2020 to the

petitioner deserves to be confirmed. Ordered accordingly. The

bail is confirmed subject to the following conditions:-

i). The bail petitioner shall appear and join the
investigation as and when directed to do so by
the Investigating Officer;

ii). The bail petitioner shall not contact the
complainant and witnesses, to threaten or

browbeat them or to use any pressure tactics
in any manner whatsoever;

iii). The bail petitioner shall not make any
inducement, threat or promise, directly or

indirectly, to the Investigating Officer or any
person acquainted with the facts of the case to
dissuade him/her from disclosing such facts to

the Court or any Police Officer or tamper with
the evidence;

iv). In case of launching of prosecution, The bail
petitioner shall regularly attend the trial on
each and every date of hearing and if

prevented by any reason to do so, shall seek
exemption from personal appearance by filing
appropriate application;

iv). The bail petitioner shall not leave India without
prior permission of the Court; and

v). The bail petitioner shall not tamper with
prosecution evidence nor hamper investigation
of the case, in any manner, whatsoever.

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9. It is clarified that the observations made above are

only for the purpose of adjudication of the present bail petition

and learned Trial Court shall not be influenced by any of these

.

observations while deciding the case on merits. It shall be open

for the prosecution to move for cancellation of the bail in case

the petitioner abuses the liberty granted and breaches any of

the conditions of bail.

The petition stands disposed of in the above terms.

Copy ‘Dasti’.

r to (Jyotsna Rewal Dua)

January 31, 2020 Vacation Judge
(Yashwant)

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