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HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.M.P.(M) No. 266 of 2020

Date of decision: 6th March, 2020

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Tejpal Banga …Petitioner

Versus

State of H.P. and others …Respondents
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Coram:

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

Whether approved for reporting1 :
For the Petitioner: Mr. Divya Raj Singh, Advocate

For the Respondents: Mr. Anil Jaswal, Additional Advocate

General, Mr. Manoj Bagga, Assistant
Advocate General.
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Jyotsna Rewal Dua,J. (Oral)

By means of instant petition, preferred under Section 439

of the Code of Criminal Procedure, petitioner is seeking regular bail in

FIR No. 248 of 2019, dated 21.07.2019, under Sections 363, 366, 376 of

the Indian Penal Code and Section 6 of the Protection of Children from

Sexual Offences Act (POCSO Act), registered at Police Station, Una.

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

Additional Advocate General for the respondent-State and gone through

the status report as well as record relevant for the purposes of

adjudication of the instant petition.

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Whether Reporters of local newspaper are permitted to see the judgment ?

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3. The gist of the status report is :- on 21.07.2019 a complaint

was lodged by one Amardeep Chand to the effect that :- his daughter,

aged sixteen and half years, was pursuing her B.Sc. Course in Khalsa

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College, Anandpur Sahib (Punjab) w.e.f. 20.06.2019; on 18.07.2019,

she had blue marks around her neck and on lips when she returned home

from college; slings of her bag were broken and she looked scared; she

did not disclose anything despite having been repeatedly asked by her

mother ; on 19.07.2019, she went to college, as usual, however, did not

return home; whereafter he pursued the matter with college

administration; after checking the CCTV footage, the college

administration informed him that his daughter, though got off from the

bus at college gate, but did not enter the college premises; on further

investigation at home, he found a suit (clothes) of his missing daughter

alongwith Rs. 13,000/- as well as one mobile box; he apprehended that

his daughter might have been kidnapped by some boy by inducement of

threat and false promise of marriage.

4. On the basis of these allegations, FIR was registered,

investigation was carried out. The prosecutrix was recovered on

29.07.2019. Her statement under Section 164 Cr.P.C. was recorded on

30.07.2019. The petitioner was taken into custody on 25.09.2019.

During investigation, it has come out that :- the bail petitioner and

prosecutrix remained together on 25.07.2019 and 26.07.2019 in a rented

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accommodation in Ludhiana (Punjab) ; basic necessities for living in

this rented accommodation were provided to them by accused Dharam

Pal; he also allegedly committed certain obscene acts there with the

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prosecutrix in absence of the bail petitioner; the prosecutrix disclosed

this fact to the bail petitioner whereafter both of them ran away from

that place on 27.07.2019; the bail petitioner as well as prosecutrix also

broke their mobile phones; separate case has been registered against

accused Dharam Pal under Section 354, 368, 201 and Sections 8, 17 and

21 of the POCSO Act, who had been granted bail on 27.09.2019; the

prosecutrix was not able to disclose name of the hotel at Bhatinda where

she alleged to have been raped by the petitioner; RFSL, Dharamshala in

its report gave the result as under:-

“1. Blood and semen were not detected in exhibit-la
(lower/pyjami, name withheld), exhibit-1b (pubic hair, name
withheld), exhibit 1c (nail clippings, name withheld), exhibit-

id (vaginal swab. name withheld), exhibit-le (vaginal smear
slides, name withheld), exhibit-3 (pubic hair, Tej Pal Banga)

and exhibit-4 (smegma swab, Tej Pal Banga).

2. Human blood was detected in exhibit-5 (blood sample, Tej
Pal Banga)……..”

According to MLC, possibility of penetration could not be ruled out.

4. From the perusal of status report and the investigation

carried out, prima facie, it appears that prosecutrix was acquainted with

the bail petitioner and had left her home with him of her own accord.

There has been occasion, when she was in rented accommodation

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without the bail petitioner being there. She had mobile phone with her,

but made no attempt to contact her parents. In her statement, recorded

under Section 164 Cr.P.C., the prosecutrix, inter alia, also mentions

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about eloping with the bail petitioner on account of difference in their

castes and objection to their marriage at the end of parents, but her

statement is that she became friends with the petitioner and of her own

accord, went to meet him from Anandpur Sahib to Garhshankar,

whereafter she eloped with him on 19.07.2019; went to Bhatinda; then

to Amritsar and then to Rajpura to Patiala and thereafter to Jullandhar.

In all, she stayed with the petitioner for about 20 to 25 days. The

allegations against the petitioner are yet to be proved by leading cogent

evidence. The petitioner is in custody w.e.f. 25.09.2019 and has

participated in the investigation. Nothing is to be recovered from him.

The investigation is complete. Since the petitioner is in custody for the

last about seven months, he cannot be incarcerated for an indefinite

period.

5. It is apt to refer to guidelines for grant/refusal of bails,

reiterated by the Hon’ble Apex Court in Criminal Appeal No.1603 of

2019, titled Shri P. Chidambaram Vs. Central Bureau of

Investigation, decided on 22.10.2019, relevant segments whereof are

reproduced hereinafter:-

“17. Expression of prima facie reasons for granting or refusing to grant bail
is a requirement of law especially where such bail orders are appealable so
as to indicate application of mind to the matter under consideration and the

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reasons for conclusion. Recording of reasons is necessary since the
accused/prosecution/victim has every right to know the reasons for grant or
refusal to grant bail. This will also help the appellate court to appreciate and
consider the reasonings for grant or refusal to grant bail. But giving reasons
for exercise of discretion in granting or refusing to grant bail is different from

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discussing the merits or demerits of the case. At the stage of granting bail, an

elaborate examination of evidence and detailed reasons touching upon the
merit of the case, which may prejudice the accused, should be avoided.
Observing that “at the stage of granting bail, detailed examination of
evidence and elaborate documentation of the merits of the case should be

avoided”, in Niranjan Singh, it was held as under:-

“3. ……Detailed examination of the evidence and elaborate
documentation of the merits should be avoided while passing orders on
bail applications. No party should have the impression that his case has
been prejudiced. To be satisfied about a prima facie case is needed but it

is not the same as an exhaustive exploration of the merits in the order
itself.”

22. The jurisdiction to grant bail has to be exercised on the basis of the well-
settled principles having regard to the facts and circumstances of each case.

The following factors are to be taken into consideration while considering an
application for bail:- (i) the nature of accusation and the severity of the

punishment in the case of conviction and the nature of the materials relied
upon by the prosecution; (ii) reasonable apprehension of tampering with the
witnesses or apprehension of threat to the complainant or the witnesses; (iii)
reasonable possibility of securing the presence of the accused at the time of
trial or the likelihood of his abscondence; (iv) character behaviour and

standing of the accused and the circumstances which are peculiar to the
accused; (v) larger interest of the public or the State and similar other
considerations (vide Prahlad Singh Bhati v. NCT, Delhi and another (2001) 4
SCC 280). There is no hard and fast rule regarding grant or refusal to grant

bail. Each case has to be considered on the facts and circumstances of each
case and on its own merits. The discretion of the court has to be exercised
judiciously and not in an arbitrary manner. At this stage itself, it is necessary

for us to indicate that we are unable to accept the contention of the learned
Solicitor General that “flight risk” of economic offenders should be looked
at as a national phenomenon and be dealt with in that manner merely

because certain other offenders have flown out of the country. The same
cannot, in our view, be put in a straight-jacket formula so as to deny bail to
the one who is before the Court, due to the conduct of other offenders, if the
person under consideration is otherwise entitled to bail on the merits of his
own case. Hence, in our view, such consideration including as to “flight risk”
is to be made on individual basis being uninfluenced by the unconnected
cases, more so, when the personal liberty is involved.

23. In Kalyan Chandra Sarkar v. Rajesh Ranjan and another (2004) 7 SCC
528, it was held as under:-

“11. The law in regard to grant or refusal of bail is very well
settled.The court granting bail should exercise its discretion in a
judicious manner and not as a matter of course. Though at the stage

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of granting bail a detailed examination of evidence and elaborate
documentation of the merit of the case need not be undertaken, there is
a need to indicate in such orders reasons for prima facie concluding
why bail was being granted particularly where the accused is charged
of having committed a serious offence. Any order devoid of such

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reasons would suffer from non-application of mind. It is also

necessary for the court granting bail to consider among other
circumstances, the following factors also before granting bail; they
are:

(a) The nature of accusation and the severity of punishment in case of

conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or
apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See
Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598 and
Puran v. Rambilas (2001) 6 SCC 338.)

was held as under:-

r to
Referring to the factors to be taken into consideration for grant of bail, in
Jayendra Saraswathi Swamigal v. State of Tamil Nadu(2005) 2 SCC 13, it

“16. …….The considerations which normally weigh with the court in
granting bail in non-bailable offences have been explained by this

Court in State v. Capt. Jagjit Singh AIR 1962 SC 253 and Gurcharan
Singh v. State (Delhi Admn.) (1978) 1 SCC 118 and basically they are

— the nature and seriousness of the offence; the character of the
evidence; circumstances which are peculiar to the accused; a
reasonable possibility of the presence of the accused not being

secured at the trial; reasonable apprehension of witnesses being
tampered with; the larger interest of the public or the State and other
similar factors which may be relevant in the facts and circumstances
of the case……”

24. After referring para (11) of Kalyan Chandra Sarkar, in State of U.P.
through CBI v. Amarmani Tripathi (2005) 8 SCC 21, it was held as under:-

“18. It is well settled that the matters to be considered in an application for
bail are (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

charge; (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
tampered with; and (viii) danger, of course, of justice being thwarted by
grant of bail [see Prahlad Singh Bhati v.NCT, Delhi (2001) 4 SCC 280 and
Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118]. While a vague
allegation that the accused may tamper with the evidence or witnesses may
not be a ground to refuse bail, if the accused is of such character that his
mere presence at large would intimidate the witnesses or if there is material
to show that he will use his liberty to subvert justice or tamper with the
evidence, then bail will be refused……..”.

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Hon’ble Apex Court in 2019 (1) Cri.CC 163 titled as

Sangitaben Shaileshbhai Datanta Vs. State of Gujarat and anr., held

as under:-

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“……….while adjudicating a bail application, Section 439 of the Code of
Criminal Procedure, 1973 is the guiding principle wherein Court takes into
consideration, inter alia, the gravity of the crime, the character of the

evidence, position and status of the accused with reference to the victim and
witnesses, the likelihood of the accused fleeing from justice and repeating the
offence, the possibility of his tampering with the witnesses and obstructing
the course of justice and such other grounds. Each criminal case presents its
own peculiar factual matrix, and therefore, certain grounds peculiar to a
particular case may have to be taken into account by the court. However, the

court has to only opine as to whether there is prima facie case against the
accused. The Court must not undertake meticulous examination of the
evidence collected by the police, or rather order specific tests as done in the
present case………..”

6.

In view of the above discussion, this petition is allowed

and it is ordered that the petitioner be released on bail in the instant

FIR on his furnishing personal bond to the tune of Rs. 75,000/- (rupees

twenty thousand) only with one local surety in the like amount to the

satisfaction of the Learned Trial Court, subject to the following

conditions:-

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

2. That the Petitioner shall not hamper the investigation.

3. That the petitioner will not leave India without prior
permission of the Court.

4. 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.

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5. Petitioner shall attend the trial and will remain present
in learned Trial Court on each and every hearing of
the case in question.

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It shall be open for the prosecution to move for

cancellation of bail in case the petitioner abuses the liberty granted and

breaches the conditions of bail.

Any observation made hereinabove shall not be taken as

an expression on merits of the case and learned Trial Court shall

hereinabove.

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decide the matter uninfluenced by any of observations made

Copy dasti.

6th March, 2020(K) ( Jyotsna Rewal Dua),

Judge

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