IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No.953 of 2018
.
Decided on: 31.08.2018
Praveen Kumar Gautam …Petitioner.
Versus
State of Himachal Pradesh …Respondent.
Coram
The Hon’ble Mr. Justice Sanjay Karol, Acting Chief Justice
Whether approved for reporting?
For the petitioner: Mr.Ankush Dass Sood, Senior Advocate,
with Mr.Amrinder Singh Rana, Advocate.
For the respondent: Mr.Adarsh K. Sharma, learned Additional
Advocate General, with Ms.Svaneel
Jaswal, Deputy Advocate General.
Sanjay Karol, Acting Chief Justice (Oral)
ASI Ram Pal and ASI Ranbir Singh, Investigating
officers, Police Station Sadar, District Shimla, H.P., are present
alongwith record.
2. FIR No.144/18, dated 17th July, 2018, was registered at
Police Station, Sadar, Shimla, under Sections 376 506 of Indian
Penal Code. The said FIR came to be lodged on the statement of
the prosecutrix, alleging that she had accompanied the petitioner
Praveen Kumar Gautam from village Siwah (Haryana) to Shimla in a
vehicle. At Shimla, she was made to spend the night in a hotel.
During the night, accused forcibly entered her room and sexually
assaulted her. In the morning of 17 th July, 2018, she informed the
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police on telephone which led to the recording of her statement and
consequently registration of the FIR.
.
3. It is a matter of record that same day, i.e. 17 th July,
2018, at about 7.30 PM, accused was arrested by the police, since
when he is behind the bars.
4. Accused denied allegations levelled by the prosecutrix.
Alongwith the instant application, he has placed on record two
documents i.e. (i) complaint lodged by him through his brother at
the very same Police Station, alleging that he is a victim of
conspiracy hatched by his driver Avinash and others, including
Rinku, Pinder Sandhu and the prosecutrix. The circumstances under
which the accused a resident of Haryana, landed up at Shimla
alongwith the prosecutrix and driver Avinash also stand narrated
therein; and (ii) affidavit of the driver Avinash, son of Kanhaiya Lal,
affirming correctness of the contents of this complaint.
5. From the record so made available by the learned
Additional Advocate General, it is evident that the police has carried
out the investigation in relation to both the complaints i.e. the one
filed by the prosecutrix and that of the complainant. Investigation in
the FIR in question is almost complete.
6. Undisputedly, prosecutrix is a major. She has got two
children. The contents of the affidavit filed by the driver casting
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doubt on the version of the prosecutrix are admitted to be correct by
him during the course of investigation.
.
7. The averments made in the complaint lodged on behalf
of the petitioner-accused that conspiracy was hatched to blackmail
him and extract money, prima facie lends credence for it has come
in the investigation that on the date of alleged crime, driver Avinash,
his girlfriend Jubi, Pinder Sandhu and Rohit were inconstant touch
with each other on the phone. Within a short span, 59 calls were
made by them amongst each other. They are all residents of
Haryana but were present near Shimla.
8. No doubt, prosecutrix had made a statement under
Section 164 of Code of Criminal Procedure alleging forcible sexual
assault, but in view of overall attending facts and circumstances this
Court is of the considered view that interest of justice would be best
met, if the accused is enlarged on bail, more so when no recovery is
sought to be effected from him and at this point in time, there is no
apprehension of the -petitioner accused threatening, intimidating or
winning over the witnesses. Also, statement of the prosecutrix being
a virgin cannot be said to be correct.
9. The Court also takes into notice the statement made by
driver Avinash to the police, taking a risk of being involved in a crime
of criminal conspiracy. It is not a case of the prosecution that either
the petitioner or his brother have been able to influence the driver,
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who, in fact, is present in the Court and through the learned
Additional Advocate General, maintains the stand taken before the
.
police, verifying the contents of the petitioner’s complaint to be
correct.
10. 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 theoffence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of
conviction;
(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. Having holistically considered the nature of offence and
the relevant attending circumstances in favour of the petitioner-
accused, and also in view of the law discussed, herein above, in my
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considered view, it is a fit case in which petitioner should and ought
to be enlarged on bail.
.
12. As such, petitioner, Praveen Kumar Gautam is ordered
to be released on bail on his furnishing personal bond in the sum of
Rs.1.00 lacs (rupees one lakh) with one surety in the like amount to
the satisfaction of the Court concerned. It is clarified that petitioner
shall not tamper with the prosecution evidence, flee away from the
jurisdiction of this Court, try to influence the witnesses or in any
manner act and conduct himself so as to disentitle him from the
discretionary power. Also, he shall always make himself available
during trial. The Court is further directed to comply with the
directions issued by the High Court, vide letter No.HHCVIG/ Misc.
Instructions/93-IV-7139, dated 18.3.2013.
13. Any observation made herein above shall not be taken
as an expression of opinion on the merits of the case and the trial
Court shall decide the matter uninfluenced by any observation made
herein above.
Application stands disposed of.
Copy dasti.
( Sanjay Karol)
Acting Chief Justice
August 31, 2018
( vt )
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