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Veer Singh vs The State Of Himachal Pradesh on 13 December, 2019

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.M.P.(M) No. 2255 of 2019
Decided on: 13.12.2019

.

Veer Singh ….Petitioner

Versus

The State of Himachal Pradesh …Respondent

Coram:
The Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1

For the petitioner : Mr. Vijay Chaudhary, Advocate.

For the respondent : Mr. Anil Jaswal, Additional
Advocate General.

S.I Dharam Singh, SHO, Police
Station Anni, District Kullu,
present along with record.

Jyotsna Rewal Dua, J.(oral)

Petitioner is an accused in FIR No.151 of 2019

registered under Sections 363, Section363-A, Section376 of the Indian Penal Code

and Section 6 of the Protection of Children from Sexual Offences Act,

2012 (hereinafter in short referred to as POCSO Act). FIR was

registered at Police Station Anni, District Kullu on 3.12.2019. Interim

protection was granted to the petitioner on 06.12.2019 under Section

438 Cr.P.C.

2. I have heard Sh. Vijay Chaudhary, learned counsel for

the petitioner and Sh. Anil Jaswal, learned Additional Advocate

1
Whether reporters of Local Papers may be allowed to see the judgment?

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2

General for the State. I have also gone through the status report filed

today by the respondent-State, which is taken on record and the record

.

produced today by SI Dharam Singh, SHO P.S. Anni, District Kullu to

the extent it was necessary for adjudication of this petition.

3(i) As per the status report and record, the prosecutrix filed

a complaint to the police on 03.12.2019 to the effect that:- she was a

student of B.A Ist year; on 05.11.2019, while she was in college at

around 11 o’clock, the petitioner called her and impressed upon her to

meet him on the road or else he would come to college to defame her;

under this threat, the prosecutrix went to meet him at Haripur road

from where, petitioner took her along with him; prosecutrix thereafter

went and accompanied the petitioner in a vehicle driven by someone

else; petitioner asked the prosecutrix to break her sim-card; petitioner

took the prosecutrix to his friend’s quarter ahead of ‘Karsog’;

prosecutrix did not know specific name of the said place; petitioner’s

friend was not there in the quarter; bail petitioner committed sexual

intercourse with the prosecutrix there; both of them stayed in that

quarter for three days; the petitioner continued ravishing and torturing

the prosecutrix; on 08.11.2019, the bail petitioner brought prosecutrix

to his home at village Ghumui where she stayed till 01.12.2019.

Prosecutrix accompanied the bail petitioner and his mother to a temple

on 01.12.2019 where she met her classmate and talked to him;

infuriated, petitioner tried to hit her, but was stopped by his mother; on

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reaching home, the prosecutrix ran away from petitioner’s home; she

called her mother on phone and explained all the happenings; where

.

after, she was brought by her mother and uncle and lodged the instant

FIR.

3(ii) As per status report, the date of birth of prosecutrix is

02.07.2002 as deciphered from the concerned Gram Panchayat and

School record, which makes her 17 years 4 months, 3 days old on the

date of alleged incident.

3(iii) Statement of the prosecutrix under Section 164 Cr.PC

recorded by the learned Judicial Magistrate, Ist Class, Anni, District

Kullu, is different from the statement recorded by the police. In her

statement under Section 164 Cr.P.C, the prosecutrix does not mention

about her sexual exploitation by the petitioner.

3(iv) In my considered opinion, the interim protection

granted to the petitioner on 06.12.2010, deserves to be made absolute

for the following reasons:-

(a) As per complaint filed by the prosecutrix, she
remained with the bail petitioner w.e.f.

5.11.2019 to 8.11.2019, at a place ahead of
Karsog and at petitioner’s home in Ghumui
w.e.f. 8.11.2019 to 1.12.2019.

(b) As per status report, there is no specific
allegation in the complaint filed by the
prosecutrix with the police on 3.12.2019 about
maltreatment or her illegal confinement by the
petitioner against her wishes either at Karsog or
at any other place beyond Karsog or at Ghumai,

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the home of the petitioner. In fact, in her
complaint, the prosecutrix herself alleges that
she had accompanied the petitioner and his

.

mother to a temple on 1.12.2019.

(c) Prosecutrix has admitted in her complaint of
being with the petitioner w.e.f. 5.11.2019 to

1.12.2019. From 5.11.2019 to 8.11.2019, both of
them stayed at place near Karsog and from
8.11.2019 to 1.12.2019, both of them stayed
with petitioner’s parents at his home at Ghumai.
In such circumstances, the defence taken by the

petitioner- the probability of their getting
married and then residing at petitioner’s home
with the consent of petitioner’s parents, cannot
be ruled out. However, it is not appropriate to
r comment more on these aspects of the case at

the present stage.

(d) The petitioner is presently aged 18 years and is a
local resident. Status report does not indicate

any criminal history of the bail petitioner. There
is no complaint from the investigating agency
about non-cooperation by the petitioner in the
investigation. The bail petitioner is not hiding

away from the police. In the above
circumstances, as observed by the Hon’ble Apex

Court in (2018) 3 SCC 22, titled as SectionDataram
Singh vs. State of U.P., a human approach is
required to be adopted, considering the fact that

an important facet of criminal jurisprudence is
that a grant of bail is a general rule and putting a
person in a jail is an exception.

(e) The facts of the instant case at this stage suggest
that the petitioner and prosecutrix were well
acquainted with each other. Prosecutrix though
was a minor on the date of alleged incident,
aged 17 years 4 months, 3 days. However, her

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behaviour suggests that she had perhaps attained
the age of discretion. Though, vis-a-vis the
offences registered against the petitioner, her

.

consent is immaterial, prosecutrix being below

the age of consent, but in such like case where
prosecutrix says something before the Police
Officer and something different before the

learned Judicial Magistrate; where she doesn’t
utter a single word about her sexual exploitation
in her statement recorded under Section 164
Cr.P.C, the very insertion of Section 376 IPC
comes under cloud; this, coupled with the fact

that petitioner and prosecutrix have stayed
together since 5.11.2019 to 1.12.2019, a major
portion of this period, they have spent in
petitioner’s home with his parents are all
r mitigating factos.

4. It is apt to refer to the guidelines for grant/or refusal of

pre-arrest bail, reiterated by the Hon’ble Apex Court in Cr. Appeal

No. 1340 of 2019, titled SectionShri P. Chidambaram vs. Directorate of

Enforcement, decided on 05.09.2019, relevant segments whereof are

reproduced hereinafter:-

“67. 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

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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. 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. SectionBy 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

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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.”

73. Observing that the arrest is a part of
the investigation intended to secure several
purposes, in SectionAdri 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 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

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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.”

74. SectionIn 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.

75. 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

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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. (SectionSee

D.K. Ganesh Babu v. P.T. Manokaran (2007)
4 SCC 434, SectionState of Maharashtra v. Mohd.
Sajid Jusain Mohd. S. Husain (2008) 1 SCC
213and SectionUnion of India vs. Padam Narain

Aggarwal (2008) 13 SCC 305.)”

In 2016 (1) SCC 152, titled as
SectionBhadresh Bipinbhai Sheth vs. State of
Gujarat and another, Hon’ble Apex Court,

held thus:-

“21. Before we proceed further, we would
like to discuss the law relating to grant of

anticipatory bail as has been developed
through judicial interpretative process. A

judgment which needs to be pointed out is a
Constitution Bench Judgment of this Court in
the case of SectionGurbaksh Singh Sibbia and

Others v. State of Punjab. The Constitution
Bench in this case emphasized that provision
of anticipatory bail enshrined in Section 438
of the Code is conceptualised under SectionArticle
21 of the Constitution which relates to
personal liberty. Therefore, such a provision
calls for liberal interpretation of Section 438
of the Code in light of SectionArticle 21 of the
Constitution. The Code explains that an
anticipatory bail is a pre- arrest legal

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process which directs that if the person in
whose favour it is issued is thereafter
arrested on the accusation in respect of

.

which the direction is issued, he shall be

released on bail. The distinction between an
ordinary order of bail and an order of
anticipatory bail is that whereas the former is

granted after arrest and therefore means
release from the custody of the police, the
latter is granted in anticipation of arrest and
is therefore, effective at the very moment of

arrest. A direction under Section 438 is
therefore intended to confer conditional
immunity from the ‘touch’ or confinement
contemplated by Section 46 of the Code. The

essence of this provision is brought out in the

following manner: (Gurbaksh Singh case,
SCC p. 586, para 26)
“26. We find a great deal of substance in Mr
Tarkunde’s submission that since denial of

bail amounts to deprivation of personal
liberty, the court should lean against the
imposition of unnecessary restrictions on the

scope of Section 438, especially when no
such restrictions have been imposed by the

legislature in the terms of that section.
Section 438 is a procedural provision which
is concerned with the personal liberty of the

individual, who is entitled to the benefit of
the presumption of innocence since he is not,
on the date of his application for anticipatory
bail, convicted of the offence in respect of
which he seeks bail. An over-generous
infusion of constraints and conditions which
are not to be found in Section 438 can make
its provisions constitutionally vulnerable
since the right to personal freedom cannot be

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made to depend on compliance with
unreasonable restrictions. The beneficent
provision contained in Section 438 must be

.

saved, not jettisoned. No doubt can linger

after the decision in SectionManeka Gandhi v. Union
of India, (1978) 1 SCC 248, that in order to
meet the challenge of SectionArticle 21 of the

Constitution, the procedure established by
law for depriving a person of his liberty must
be fair, just and reasonable. Section 438, in
the form in which it is conceived by the

legislature, is open to no exception on the
ground that it prescribes a procedure which
is unjust or unfair. We ought, at all costs, to
avoid throwing it open to a Constitutional

challenge by reading words in it which are

not to be found therein.”

25. The principles which can be culled
out, for the purposes of the instant case, can
be stated as under:

25.1 The complaint filed against the
accused needs to be thoroughly examined,
including the aspect whether the complainant

has filed a false or frivolous complaint on
earlier occasion. The court should also

examine the fact whether there is any family
dispute between the accused and the
complainant and the complainant must be

clearly told that if the complaint is found to
be false or frivolous, then strict action will be
taken against him in accordance with law. If
the connivance between the complainant and
the investigating officer is established then
action be taken against the investigating
officer in accordance with law.
25.2 The gravity of charge and the exact
role of the accused must be properly

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comprehended. Before arrest, the arresting
officer must record the valid reasons which
have led to the arrest of the accused in the

.

case diary. In exceptional cases, the reasons

could be recorded immediately after the
arrest, so that while dealing with the bail
application, the remarks and observations of

the arresting officer can also be properly
evaluated by the court.

25.3 It is imperative for the courts to
carefully and with meticulous precision

evaluate the facts of the case. The discretion
to grant bail must be exercised on the basis
of the available material and the facts of the
particular case. In cases where the court is

of the considered view that the accused has

joined the investigation and he is fully
cooperating with the investigating agency
and is not likely to abscond, in that event,
custodial interrogation should be avoided. A

great ignominy, humiliation and disgrace is
attached to arrest. Arrest leads to many
serious consequences not only for the

accused but for the entire family and at times
for the entire community. Most people do not

make any distinction between arrest at a pre-
conviction stage or post-conviction stage.
25.4 There is no justification for reading

into Section 438 Cr.PC the limitations
mentioned in Section 437 Cr.PC. The
plentitude of Section 438 must be given its
full play. There is no requirement that the
accused must make out a “special case” for
the exercise of the power to grant
anticipatory bail. This virtually, reduces the
salutary power conferred by Section 438
Cr.PC to a dead letter. A person seeking

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anticipatory bail is still a free man entitled
to the presumption of innocence. He is
willing to submit to restraints and conditions

.

on his freedom, by the acceptance of

conditions which the court may deem fit to
impose, in consideration of the assurance
that if arrested, he shall be enlarged on bail.

25.5 The proper course of action on an
application for anticipatory bail ought to be
that after evaluating the averments and
accusations available on the record if the

court is inclined to grant anticipatory bail
then an interim bail be granted and notice
be issued to the Public Prosecutor. After
hearing the Public Prosecutor the court may

either reject the anticipatory bail

application or confirm the initial order of
granting bail. The court would certainly be
entitled to impose conditions for the grant of
anticipatory bail. The Public Prosecutor or

the complainant would be at liberty to move
the same court for cancellation or
modifying the conditions of anticipatory bail

at any time if liberty granted by the court is
misused. The anticipatory bail granted by

the court should ordinarily be continued till
the trial of the case.

25.6 It is a settled legal position that the

court which grants the bail also has the
power to cancel it. The discretion of grant
or cancellation of bail can be exercised
either at the instance of the accused, the
Public Prosecutor or the complainant, on
finding new material or circumstances at
any point of time.

25.7 In pursuance of the order of the
Court of Session or the High Court, once

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the accused is released on anticipatory bail
by the trial court, then it would be
unreasonable to compel the accused to

.

surrender before the trial court and again

apply for regular bail.

25.8 Discretion vested in the court in all
matters should be exercised with care and

circumspection depending upon the facts
and circumstances justifying its exercise.
Similarly, the discretion vested with the
court under Section 438 Cr.PC should also

be exercised with caution and prudence. It
is unnecessary to travel beyond it and
subject the wide power and discretion
conferred by the legislature to a rigorous

code of self-imposed limitations.

25.9 No inflexible guidelines or
straitjacket formula can be provided for
grant or refusal of anticipatory bail because

all circumstances and situations of future
cannot be clearly visualised for the grant or
refusal of anticipatory bail. In consonance
with legislative intention, the grant or

refusal of anticipatory bail should
necessarily depend on the facts and

circumstances of each case.

25.10. We shall also reproduce para 112 of

the judgment wherein the Court delineated
the following factors and parameters that
need to be taken into consideration while
dealing with anticipatory bail:

(a) The nature and gravity of the accusation
and the exact role of the accused must be
properly comprehended before arrest is
made;

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(b) The antecedents of the applicant
including the fact as to whether the accused
has previously undergone imprisonment on

.

conviction by a court in respect of any

cognizable offence;

(c) The possibility of the applicant to flee
from justice;

(d) The possibility of the accused’s
likelihood to repeat similar or other
offences;

(e) Where the accusations have been made
only with the object of injuring or
humiliating the applicant by arresting him
or her;

(f) Impact of grant of anticipatory bail

particularly in cases of large magnitude
affecting a very large number of people;

(g) The courts must evaluate the entire

available material against the accused very
carefully. The court must also clearly
comprehend the exact role of the accused in

the case. The cases in which the accused is
implicated with the help of Section 34 and

Section149 of the Penal Code, 1860 the court
should consider with even greater care and
caution, because overimplication in the

cases is a matter of common knowledge and
concern;

(h) While considering the prayer for grant
of anticipatory bail, a balance has to be
struck between two factors, namely, no
prejudice should be caused to free, fair and
full investigation, and there should be
prevention of harassment, humiliation and
unjustified detention of the accused;

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(i) The Court should consider reasonable
apprehension of tampering of the witness or
apprehension of threat to the complainant;

.

(j) Frivolity in prosecution should always be

considered and it is only the element of
genuineness that shall have to be considered
in the matter of grant of bail and in the

event of there being some doubt as to the
genuineness of the prosecution, in the
normal course of events, the accused in
entitled to an order of bail.”

5.

At the stage of bail, one of the consideration in cases

like the present, is of the circumstances under which the alleged

offence was committed, the intention or motive behind the act alleged,

whether act is violent or not, whether there are antecedents or not,

whether there is likelihood of threats or intimidation by the boy on his

release, chances of tempering with evidence etc. All the facts pointed

in para supra are mitigating factors in favour of grant of bail to the

petitioner. FIR in the instant case was lodged on 3.12.2019, though

date of alleged incident is 5.11.2019. The facts as described in the

complaint and in the statement recorded under Section 164 Cr.P.C.

differ from each other especially in respect of sexual exploitation of

the prosecutrix. The facts, at this stage, do not suggest illegal

confinement of the prosecutrix. Presently, it appears to be a case of a

boy girl known to each other and residing together at boy’s home

with consent of his parents. Nothing more is required to be observed

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17

at this stage for the purpose of adjudicating the bail petition. As

observed earlier, bail petitioner is a local resident with no criminal

.

antecedents. His presence can always be secured in trial. There is no

allegation in the status report that he is not cooperating with the

investigating agency or inducing/threatening the witnesses. In such

circumstances, I am inclined to grant bail to the petitioner.

Accordingly, the petition is allowed. Interim order dated 6.12.2019 is

made absolute. In the event of arrest of bail petitioner in FIR No. 151

of 2019 dated 03.12.2019, registered at Police Station Anni, District

Kullu under Sections 363, Section363-A and Section376 of the Indian Penal Code and

Section 6 of the Protection of Children from Sexual Offences Act,

2012, he is ordered to be released on his furnishing personal bail bond

to the tune of Rs. 50,000/- with one local surety in the like amount to

the satisfaction of the Arresting Officer, subject to following

conditions:-

i) Petitioner is directed to join the investigation
of the case as and when called for by the
Investigating Officer in accordance with law.

ii) Petitioner shall not hamper the investigation
in any manner whatsoever.

iii) Petitioner undertakes not to contact the
complainants, to threaten or browbeat them or to
use any pressure tactics in any manner whatsoever.

iv) Petitioner shall not leave India without prior
permission of the Court.

v) Petitioner shall not indulge in any offence.

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18

vi) 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/her from disclosing such facts to the
Court or any Police Officer or tamper with the
evidence.

vii) In the event of launch of prosecution,
petitioner shall make himself available and attend
all Court dates.

It is clarified that the observations made above are only

for the purpose of adjudication of the present bail petition and the

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 the conditions of bail. The petition stands

disposed of in the above terms.

Copy dasti.

(Jyotsna Rewal Dua)
Judge

13th December, 2019
(reena)

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.

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