Ashwani Kumar vs State Of H.P

Anoop Chitkara, J

The petitioner, who is incarcerating since 1.3.2021 for allegedly commission of offence of rape of his married neighbor at various instances, has

come up before this Court seeking regular bail.

Earlier, the petitioner had filed Bail Application No.124-D/XXII/2021 before learned Additional Sessions Judge-1, District Kangra at Dharamshala,

which was rejected vide order dated 4.5.2021 on the grounds that the bail petitioner has approximately 10 cases registered against him, including

conviction in one of the cases and, therefore, was of criminal nature and could threaten the prosecution witnesses and that the statement of the

accused is to be recorded before the Court.

In para 17 of the bail petition, the petitioners claims that he has a blemished criminal record and there have been numerous cases registered against

him in the past also including conviction in one case.

Briefly, the allegations against the petitioner are that on 3.2.2021, the prosecutrix came to the Police Station and moved a written application stating

therein that she was living happily in her matrimonial house, however, her husband namely Naresh Kumar used to beat her every night. She remained

very disturbed and quite unhappy. In the meantime, her neighbor Ashwani Kumar came and told her that in spite of living with Naresh Kumar with

beating and torturing, she should live with him and that he will keep her happy. The prosecutrix fell for the words of the accused and started living with

him. She further states that the accused continuously sexually assaulted her by taking her to hotels everyday. Thereafter, the accused took her to live

with his mother and she started living there happily. One day, suddenly one Manga (brother of Dara) and his two daughters namely, Kajal and Paddu,

and Lakha and Tittu, came to their house and started beating her. They kicked her out of her house and took Dara with them. It is further stated that

the prosecutrix then reached Pathankot where a Police Official helped her and made her stay in a hut near the truck union and she started living there.

She stated that the aforesaid persons kept sending messages to her that if she took any action against them then they will kill her. She requested the

police to take appropriate action against the accused persons. Based on these allegations, the Police registered the FIR mentioned above.

Ld. Counsel for the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

While opposing the bail, the alternative contention on behalf of the State is that if this Court is inclined to grant bail, such a bond must be subject to

very stringent conditions.

In Sunny Kapoor v State of HP, CrMPM 2168 of 2020, (Para 9), this Court after considering the relevant judicial precedents observed that the pre-

trial incarceration needs justification depending upon the offense's heinous nature, terms of the sentence prescribed in the statute for such a crime,

probability of the accused fleeing from justice, hampering the investigation, criminal history of the accused, and doing away with the victim(s) and

witnesses. While considering bail, the Court has to maintain a balance between all stakeholders and safeguard the interests of the victim, the accused,

society, and the State. The primary purpose of bail is to secure the presence of the accused to attend the trial.

Reasons for superseding criminal history are that the criminal history pertains to the offenses under the NDPS Act and theft etc. In contrast, the

present allegations are more like sex exploitation under false promises. The accused was her neighbor, and the victim would be aware of his criminal

antecedents. Despite that, she agreed to stay with him. Thus, criminal history will not be an obstacle in granting bail.

The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can

be taken care of by imposing elaborative and stringent conditions. In Sushila Aggarwal, (2020) 5 SCC 1, Para 92, the Constitutional Bench held that

unusually, subject to the evidence produced, the Courts can impose restrictive conditions.

REASONING:

A perusal of the allegations made in the complaint reveals that the petitioner, being the victim's neighbor, was aware of her plight in her

matrimonial house. He offered her safe refuge and happy life, to which the victim agreed. She was a married lady and must be aware of the

petitioner's intentions by offering her shelter. The criminal history of the petitioner points out his involvement in drugs. Given this, he would take the

victim to various hotels where they indulged in coitus. There is no allegation that the accused forced himself upon her, although she did allege that

after some sexual acts, he recorded the same and blackmailed her into continuing having sex. However, all this would depend upon her expressions in

those recordings, which trial Court would be better positioned to do. At present, this Court is concerned only with denial or grant of bail. An analysis of

the entire evidence does not justify further incarceration of the accused, nor will it achieve any significant purpose. Without commenting on the case's

merits, in the given facts, allegations, and the circumstances peculiar to this case, the petitioner, makes a case for release on bail.

Given the above reasoning, the Court is granting bail to the petitioner, subject to strict terms and conditions, which shall be over and above and

irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.

In Manish Lal Shrivastava v State of Himachal Pradesh, CrMPM No. 1734 of 2020, after analysing judicial precedents, this Court observed that

any Court granting bail with sureties should give a choice to the accused to either furnish surety bonds or give a fixed deposit, with a further option to

switch over to another.

The petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. Ten thousand (INR 10,000/-),

and shall furnish two sureties of Rs. Twenty-five thousand (INR 25,000/-) each, to the satisfaction of the Judicial Magistrate having the jurisdiction

over the Police Station conducting the investigation, and in case of non-availability, any Ilaqa Magistrate. Before accepting the sureties, the concerned

Magistrate must satisfy that in case the accused fails to appear in Court, then such sureties are capable to produce the accused before the Court,

keeping in mind the Jurisprudence behind the sureties, which is to secure the presence of the accused.

In the alternative, the petitioner may furnish aforesaid personal bond and fixed deposit(s) for Rs. Ten thousand only (INR 10,000/-), made in

favour of ""Chief Judicial Magistrate, District Kangra, H.P.,

a) Such Fixed deposits may be made from any of the banks where the stake of the State is more than 50%, or any of the stable private banks, e.g.,

HDFC Bank, ICICI Bank, Kotak Mahindra Bank, etc., with the clause of automatic renewal of principal, and liberty of the interest reverting to the

linked account.

b) Such a fixed deposit need not necessarily be made from the account of the petitioner and need not be a single fixed deposit.

c) If such a fixed deposit is made in physical form, i.e., on paper, then the original receipt shall be handed over to the concerned Court.

d) If made online, then its printout, attested by any Advocate, and if possible, countersigned by the accused, shall be filed, and the depositor shall get

the online liquidation disabled.

e) The petitioner or his Advocate shall inform at the earliest to the concerned branch of the bank, that it has been tendered as surety. Such information

be sent either by e-mail or by post/courier, about the fixed deposit, whether made on paper or in any other mode, along with its number as well as FIR

number.

f) After that, the petitioner shall hand over such proof along with endorsement to the concerned Court.

g) It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. It shall also be open for the petitioner to apply for

substitution of fixed deposit with surety bonds and vice-versa.

h) Subject to the proceedings under S. 446 CrPC, if any, the entire amount of fixed deposit along with interest credited, if any, shall be

endorsed/returned to the depositor(s). Such Court shall have a lien over the deposits up to the expiry of the period mentioned under S. 437-A CrPC,

1973, or until discharged by substitution as the case may be.

The furnishing of the personal bonds shall be deemed acceptance of the following and all other stipulations, terms, and conditions of this bail order:

a) The petitioner to execute a bond for attendance to the concerned Court(s). Once the trial begins, the petitioner shall not, in any manner, try to delay

the proceedings, and undertakes to appear before the concerned Court and to attend the trial on each date, unless exempted. In case of an appeal, on

this very bond, the petitioner also promises to appear before the higher Court in terms of Section 437-A CrPC.

b) The attesting officer shall, on the reverse page of personal bonds, mention the permanent address of the petitioner along with the phone number(s),

WhatsApp number (if any), e-mail (if any), and details of personal bank account(s) (if available), and in case of any change, the petitioner shall

immediately and not later than 30 days from such modification, intimate about the change of residential address and change of phone numbers,

WhatsApp number, e-mail accounts, to the Police Station of this FIR to the concerned Court.

c) The petitioner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police

officials, or any other person acquainted with the facts of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to

tamper with the evidence.

d) The petitioner shall join the investigation as and when called by the Investigating Officer or any Superior Officer; and shall cooperate with the

investigation at all further stages as may be required. In the event of failure to do so, it will be open for the prosecution to seek cancellation of the bail.

Whenever the investigation occurs within the police premises, the petitioner shall not be called before 8 AM and shall be let off before 5 PM, and shall

not be subjected to third-degree, indecent language, inhuman treatment, etc.

e) In addition to standard modes of processing service of summons, the concerned Court may serve or inform the accused about the issuance of

summons, bailable and non-bailable warrants the accused through E-Mail (if any), and any instant messaging service such as WhatsApp, etc. (if any).

[Hon’ble Supreme Court of India in Re Cognizance for Extension of Limitation, Suo Moto Writ Petition (C) No. 3/2020, I.A. No. 48461/2020- July

10, 2020]:

i. At the first instance, the Court shall issue the summons.

ii. In case the petitioner fails to appear before the Court on the specified date, in that eventuality, the concerned Court may issue bailable warrants.

iii. Finally, if the petitioner still fails to put in an appearance, in that eventuality, the concerned Court may issue Non-Bailable Warrants to procure the

petitioner's presence and may send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper to

achieve the purpose.

The petitioner shall surrender all firearms, ammunition, if any, along with the arms license to the concerned authority within 30 days from today.

However, subject to the provisions of the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back in case of acquittal in this

case.

The petitioner shall neither stare, stalk, make any gestures, remarks, call, contact, message the victim, either physically, or through phone call or

any other social media, nor roam around the victim's home.

The petitioner must stay far away from the place of occurrence while on bail. Thus, the petitioner shall not enter within a radius of one kilometer

from her house. This Court is imposing this condition to rule out any discomfort to the victim. Reference be made to Vikram Singh v Central Bureau

of Investigation, 2018 All SCR (Crl.) 458); and Aparna Bhat v. State of Madhya Pradesh, 2021 SCC Online SC 230.

During the trial's pendency, if the petitioner repeats or commits any offence where the sentence prescribed is more than seven years or violates

any condition as stipulated in this order, it shall always be permissible to the respondent to apply for cancellation of this bail. It shall further be open for

any investigating agency to bring it to the notice of the Court seized of the subsequent application that the accused was earlier cautioned not to indulge

in criminal activities. Otherwise, the bail bonds shall continue to remain in force throughout the trial and after that in terms of Section 437-A of the

CrPC.

Any Advocate for the petitioner and the Officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of

this bail order, in vernacular and if not feasible, in Hindi.

In case the petitioner finds the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for

modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even to the Court taking

cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition.

This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation per law.

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.

In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.

The SHO of the concerned Police Station or the Investigating Officer shall arrange to send a copy of this order, preferably a soft copy, to the

victim, at the earliest, and not later than two days. In case the victim notices any objectionable behavior or violation of any terms or conditions of this

order, the victim may inform the SHO of the concerned Police Station or the Trial Court or even to this Court.

There would be no need for a certified copy of this order for furnishing bonds. Any Advocate for the petitioner can download this order along with

the case status from the official web page of this Court and attest it to be a true copy. In case the attesting officer or the Court wants to verify the

authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.

The petition stands allowed in the terms mentioned above.

Copy Dasti.