Dinesh Kumar vs State Of Himachal Pradesh

Rakesh Kainthla, J

The petitioner has filed the present petition for seeking pre-arrest bail. It has been asserted that an FIR has been registered against the petitioner for the commission of offences punishable under Sections 366 & 376 of the IPC at Women Police Station, Mandi, District Mandi, H.P. The petitioner has been married to the victim. They were major and the marriage ceremony was solemnized at Hadimba Mata Mandir, Manali. The petitioner was 23 years old and the victim was 19 years old at the time of the marriage. The petitioner came to his village along with the victim and stayed there from 26.07.2023 to 31.07.2023. The victim, the petitioner, his two sisters and their children were going to the house of the petitioner’s sister on 31.07.2023. Their car was intercepted at Lagmanwin. The victim was taken from the petitioner’s custody. The petitioner was also beaten. The matter was reported to the police and FIR No. 138 of 2023 was registered. The mother-in-law of the petitioner lodged an FIR against the petitioner. The petitioner is innocent and he was falsely implicated. He would abide by all the terms and conditions, which may be imposed by the Court. Hence, the petition.

The petition is opposed by filing a status report asserting that the father of the victim made a complaint that the victim was missing since 26.07.2023. She had transferred ₹ 15,000/- to the account of the petitioner and the victim’s father suspected that the petitioner had kidnapped her. The police registered the FIR. The victim made a statement before the police that she had voluntarily gone to Manali with the petitioner and had married him at Hadimba Mata Mandir. She also produced the Certificate of Marriage. Her statement was recorded in the Court. Further investigation was conducted by the Women's Police Station. The police found that the petitioner had married the victim. The police seized the footage of the CCTV camera and obtained the affidavits regarding the marriage. The victim made a statement that the petitioner was threatening her for three years and he was asking her to transfer the amount to his bank account. The police checked the record and found that the amount was transferred from the account of the mother and grandmother of the victim. As per the report of analysis, the DNA taken from the semen stain found in the Duppatta of the victim matched with the DNA of the petitioner. The Medical Officer stated that the possibility of sexual assault could not be ruled out. The victim made a statement that the petitioner had administered something to her and maintained physical relations. The petitioner can intimidate the witnesses and he can abscond in case, he is released on bail; therefore, it was prayed that the present petition be dismissed.

I have heard Mr Kashmir Singh Thakur, learned counsel for the petitioner, Mr. Jitender Sharma, learned Additional Advocate General for the respondent/State & Mr. Ajay Chandel, learned counsel for the informant-victim.

Mr. Kashmir Singh Thakur, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. He had married the victim. The victim made a statement against the petitioner at the instance of her family members. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail.

Mr. Jitender Sharma, learned Additional Advocate General for the respondent/State submitted that the petitioner is involved in the commission of a heinous offence. He is not entitled to the concession of pre-arrest bail; therefore, he prayed that the present petition be dismissed.

Mr. Ajay Chandel, learned counsel for the informant/victim stated that the petitioner had maintained sexual relations with the victim for three years before the incident. The allegations against the petitioner are serious; therefore, he prayed that the present petition be dismissed.

I have given considerable thought to the submissions at the bar and have gone through the record carefully.

It was laid down by the Hon’ble Supreme Court in P. Chidambaram vs. Directorate of Enforcement 2019 (9) SCC 24 that the power of pre-arrest is extraordinary and should be exercised sparingly. It was observed:

“67. Ordinarily, arrest is a part of the 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 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; the possibility of the applicant fleeing 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 the 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.”

The victim had initially stated that she had married the petitioner voluntarily without any influence. However, she subsequently changed her statement and stated that the petitioner was sexually assaulting her for three years. She also stated that the petitioner was asking her to transfer the money to his account, which was corroborated by the statements of account of the victim’s mother and her grandmother. The version of the victim that the petitioner had sexually assaulted her is duly corroborated by the report of the DNA analysis, in which the DNA taken from the semen detected on the Dupatta of the victim matched with the DNA of the petitioner. Therefore, prima facie, a case for the commission of an offence punishable under Section 376 (2)(n) of IPC is made out against the petitioner. The victim changed her initial statement that she had married the petitioner was changed by her subsequently. Hence, no advantage can be derived from the same. It was laid down by Hon’ble Supreme Court in Ms X versus State of Maharashtra and another, 2023 STPL 3386 SC, [2023(2) Crimes 66 (SC)] that pre-arrest bail cannot be granted in an offence punishable under Section 376 of IPC merely on the ground that the victim had improved upon her version. It was observed:

Surprisingly, none of the aforesaid aspects have been touched upon in both the impugned orders. The nature and gravity of the alleged offence has been disregarded. So has the financial stature, position and standing of the accused vis-a-vis the appellant/prosecutrix been ignored. The High Court has granted anticipatory bail in favour of the respondent No. 2/accused in a brief order of three paragraphs, having been swayed by the 'star variations in the narration of the prosecutrix' implying thereby that what was originally recorded in the FIR, did not make out an offence of rape, as defined in Section 375 IPC, which is an erroneous assumption. Even if the first Supplementary statement of the appellant/prosecutrix recorded in the evening hours of 6th August 2022, the date on which the FIR had been registered against respondent No.2/accused in the first half of the same day, her second Supplementary statement was recorded on 6th September 2022 and the Medico-Legal Report of the doctor who had examined the appellant/prosecutrix on 8th August 2022, are kept aside for a moment, we find that there was still sufficient material in the FIR that would prima facie attract the provision of Section 376, IPC. In our opinion, these factors ought to have dissuaded the High Court from exercising its discretion in favour of respondent No. 2/accused for granting him anticipatory bail.

Therefore, in view of the binding precedent of the Hon’ble Supreme Court, the petitioner is not entitled to pre-arrest bail.

Final Order:

Consequently, the present petition fails and the same is dismissed.

The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.