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Shubham Parmar vs State Of Himachal Pradesh on 2 March, 2020

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 244 of 2020

.

Judgment reserved on: February 28, 2020

Date of Decision: March 2 , 2020

Shubham Parmar …Petitioner.

Versus
State of Himachal Pradesh …Respondent.

Coram:
The Hon’ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 No.

For the petitioner : Mr. Ajay Sharma, Senior Advocate with Mr. Amit
Jamwal, Advocate, for the petitioner.

For the respondent : Mr. Ashwani K. Sharma Mr. Nand Lal Thakur, Addl.
AGs. and Mr. Rajat Chauhan, Law Officer, for the

respondent/State.

Anoop Chitkara, Judge.

The petitioner, who is under arrest, on being arraigned as accused in FIR

Number 135 of 2019, dated Nov 16, 2019, registered under Sections 376, 354, 354C,
384, 420, 506, 498A, 120B 201 of Indian Penal Code, 1860 and Sections 66C, 67A of

the Information Technology Act, 2000, in Police Station Gagret, Distt. Una, HP,
disclosing non-bailable offences, has come up before this Court under Section 439
CrPC, seeking regular bail.

2. Status report stands filed. I have seen the status report(s) as well as the Police
report under Section 173(2) CrPC, to the extent it was necessary for deciding the
present petition, and heard learned Counsel for the parties.

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

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3. Prior to the present bail petition, the petitioner had filed a petition under Section
439 CrPC, before the Addl. Sessions Judge (II), Una, District Una, HP. However, vide
order dated 13.2.2020, the Court dismissed the petition.

.

FACTS

4. The gist of the First Information Report and the investigation is that the police
got the statement of the victim recorded under Section 164 CrPC, wherein she

mentioned her age to be 21 years and stated that she knew the accused/bail
petitioner since December, 2018 and were in talking terms with each other. While
making this statement on Nov 27, 2019 the victim stated that for the last one month

both of them were in relation. It means that she is talking about September
October, 2019. She further stated that on Jan 2, 2019, Suhbham, petitioner herein,
told her that he wanted to marry her to which she refused. After that, he continuously

pressurized her. On Feb 10, 2019, both of them visited Naddi Hills Hotel for the

purpose of solemnization of marriage. The accused impressed upon her to stay in the
same room. In the mid-night he started flirting with her and said that as they would
marry, there is no problem and after that he committed coitus with her forcibly. On

her refusal he showed knife to her and threatened to do away with the lives of her
parents. She further stated that next day the petitioner refused to marry her. During

night he had also made a MMS of the victim and said that it is only for his use because
he is going to marry. She further stated that after that her problem came when

according to the victim the accused unloaded the MMS on the facebook, which led to
the registration of the FIR. The petitioner was arrested on Feb 13, 2020.

5. Subsequently the police party also complied with the procedural requirements
under the CrPC.

ANALYSIS AND REASONING:

6. Pre-trial incarceration needs to be justified depending upon the heinous nature
of the offence, terms of the sentence prescribed in the Statute for such a crime,
accused fleeing from justice, hampering the investigation, and doing away with
witnesses. The Court is under the Constitutional obligation to safeguard the interests
of the victim, the accused, the society, and the State.

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7. As per the victim’s own version, while making statement under Section 164 CrPC
on Nov. 27, 2019, she specifically stated that she was in relationship with accused for
the last one month, hence petitioner has prima facie made out a case for bail for

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offence under Section 376 IPC.

8. Mr. Nand Lal Thakur, learned Additional Advocate General contends that the
circulation of the MMS by the bail petitioner has caused permanent dent in the image

of the victim and as such he does not deserve to be released on bail.

9. As I have already discussed, the petitioner has made out a case for bail, as far
as offence under Section 376 IPC is concerned, which is the principal offence. Even if

the petitioner does not deserve leniency for circulating MMS, still the custody he has
already undergone during the period of his incarceration is already sufficient so as to
send a message to the society about the gravity of the offence, but to continue pre-

trial incarceration on the point of MMS in this age of internet, when according to the

studies, Web as well as Dark Web are full of pornography. It is not for the judiciary to
deny bail on this ground when burden is on the other wings of Government to curb the
evil.

10. Given the above reasoning, in my considered opinion, the judicial custody of
the petitioner/accused is not going to serve any purpose whatsoever, and I am inclined

to grant bail on the following grounds, but subject to stringent conditions:

a) The report under section 173(2) CrPC stands filed.

b) The investigation is almost complete.

c) The petitioner/accused is in judicial custody since Feb 13, 2020.

d) The petitioner is a permanent resident of the address mentioned in the
memo of parties, as such presence can always be secured.

e) The petitioner has no criminal history.

11. Consequently, the present petition is allowed. The petitioner/accused shall be
released on bail in the present case, in connection with the FIR mentioned above, on
his furnishing personal bond in the sum of INR 10,000/- (Rupees ten thousand) with
two sureties in the like amount, to the satisfaction of the Trial Court/Sessions
Judge/Additional Sessions Judge, Una, HP.

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12. The Court executing the personal and surety bonds shall ascertain the identity of
the bail-petitioner, his family members, and of sureties, through AADHAR Card, Pan
Card, Ration Card, etc. The petitioner shall mention phone numbers and other details,

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on the reverse page of the bonds.

13. The Counsel for the accused and the attesting official shall explain all conditions
of this bail to the petitioner.

14. This Court is granting the bail, subject to the conditions mentioned herein. The
petitioner/accused undertakes to comply with all directions given in this order, and the
furnishing of bail bonds by the petitioner/accused is acceptance of all such conditions:

a) The petitioner shall appear before the Court which issues the summons or
warrants, and shall furnish fresh bail bonds to the satisfaction of such Court, if
such Court directs to do so.

b) The petitioner undertakes to attend the trial.

c) The petitioner shall join the investigation as and when called by the

Investigating Officer. However, whenever the investigation takes place within the
boundaries of the Police Station or the Police Post, then the accused shall not be

called before 9 AM and shall be let off before 5 PM.

d) The petitioner shall co-operate in the investigation.

e) The petitioner shall not hamper the investigation.

f) The petitioner undertakes not to threaten or browbeat or use any pressure

tactics on the victims, complainant, and witnesses,

g) The petitioner shall neither influence nor try to control the investigating

officer, in any manner whatsoever.

h) The petitioner undertakes not to 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 from disclosing such facts to the Court or
any Police Officer or tamper with the evidence.

i) In case the petitioner commits any offence prescribing the sentence of
imprisonment of more than seven years, within thirty days of knowledge of such
FIR, the petitioner shall intimate SHO of the present police station, with all the
details of the present FIR as well as the new FIR. In such a situation, it shall be

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open for the State to apply to this Court for cancellation of this bail, if it deems fit
and proper.

j) The Petitioner shall not contact the victim personally or through any other

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medium whatsoever. He would also avoid to enter the campus of her studies and
would not enter within a radius of five kilometers of the residence of the victim,
measuring from the shortest route, until the recording of the statement of all

witnesses, except Police officials, during trial. However irrespective of these
conditions, the accused is permitted to visit his Lawyers, Courts and Hospitals.
The petitioner shall inform the SHO of above-mentioned Police Station about the

address where he would be residing. After the recording of the statements of
the aforesaid witnesses, this condition shall automatically come to an end. In
case of emergency, whenever, the accused is required to enter ithin the five

kilometer radius of her residence, then he shall take permission of the SHO/I.O.

or any superior Officer of the concerned Police Station or of Pradhan/Up-
Pradhan/Member of Panchayat/Municipal Commitee, in whose jurisdiction, the
residence of the victim, falls. But in no situation, he shall stay at this place for

more than 24 hours at a stretch. This condition is being laid so that no trauma is
caused to the victim, at least till the time of recording of the statement of the

victim in Court. Such a condition is neither arbitrary nor unreasonable and the
only purpose is that the victim is unable to come face to face with the accused

and also has been imposed with a view that the accused is unable to influence
the victim. In case the petitioner needs modification of this condition, then he

may apply to this Court, supported with written permission from the victim,
obtained through Pradhan, Up Pradhan, or Ward Member of the Panchayat,
where the victim resides. It is clarified that in case the petitioner violates this
condition then he will be liable to cancel his bail.

k) Within 30 days from today, the petitioner shall sell, or surrender, all
firearms along with ammunition, and arms licenses, if any, to the authority which
had given such permission.

l) Apart from above, in case the Petitioner does not turn up before the Trial
Court, then the trial Court may issue Non-Bailable warrants and send the

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petitioner to the Judicial Custody for the period for which the presence of the
petitioner cannot be dispensed with. If the petitioner violates any other
condition(s) as stipulated in this bail order, then the Trial Court may direct the

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Public Prosecutor to file a cancellation application before it and it shall be lawful
and permissible for the Trial Court to cancel the bail.

15. This order of bail does not in any manner limit or restrict the rights or duties of

the police or investigating agency, to investigate into the charges against the
petitioner.

16. In case the petitioner finds the bail condition(s) as violating fundamental or other

right, or any human right, or faces any other difficulty due to any condition, then, the
petitioner may file a reasoned application for modification of such term(s).

17. The present bail order is only for the FIR mentioned above. It shall not be

construed to be a blanket order of bail in all other cases, if any, registered against the

petitioner.

18. The SHO/Additional SHO of the concerned Police Station or the Investigating
Officer to handover a copy of this order to the victim and explain it to her.

19. Any observation made hereinabove is neither an expression of opinion on the
merits of the case, nor shall the trial Court advert to these comments.

20. Petition stands allowed in the terms mentioned above.

Copy dasti.

(Anoop Chitkara),
Judge.

March 2 , 2020 (PK)

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