Gautam Negi vs State Of H.P

Anoop Chitkara, J

A boy aged 22 years, who was in prison w.e.f. 28.5.2020 on allegations of eloping with a girl aged 14 years and 9 months and then both performing

some sort of marriage and then themselves calling the father of the girl informing him about said marriage, which led to the registration of the FIR

mentioned above, has come up before this Court seeking regular bail, on the ground that he is already in custody for more than six months.

Earlier, the petitioner had filed a petition under Section 439 Cr.PC before the concerned Sessions Court. However, vide order dated 4.9.2020,

leanred District and Sessions Judge, Special Court (POCSO Act, 2012), Kinnaur at Rampur Bushahr, HP, dismissed the petition because of the nature

and gravity of offence.

In Para 5 of the bail application, the petitioner declares having no criminal history. The status report also does not mention any criminal past of the

accused.

Briefly, the allegations against the petitioner are that on 26.5.2020, the father of the victim informed the aforesaid Police Station that Gautam Negi

(bail petitioner herein) has allured and eloped with his minor daughter with intention to solemnize marriage with her. The complainant further revealed

that the victim was staying with her elder mother and was a student of Class-X. He further stated that yesterday, i.e., 25.5.2020, she had visited his

village in connection with her school work. After that, she went to graze the sheep in the orchard but till evening, she did not return home. The

complainant waited for her thinking that she would come on her own. At about 7.00 p.m. he received a phone call from the accused-petitioner, who

told him that he had gone with his daughter for the purpose of marriage and they had solemnized marriage. The victim also talked to her father and

apprised him that she had solemnized marriage with the accused. Subsequently, the phone was switched off. Based on these allegations, the Police

registered the FIR mentioned above.

The complainant revealed the date of birth of the victim as 25.8.2005, which means, she, on that day, was 14 years and 9 months of age. During the

investigation, the police recovered the victim on 28.5.2020 and arrested the accused on the same day. The police took the victim to CHC, Bhavanagar,

where her medico-legal examination was conducted. The examining doctor obtained genetic material from her body and also from her privates for the

purpose of DNA matching. Similarly, the accused was also medically examined. The police also recorded the statement of the victim under Section

164, Cr.PC.

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

Satyan Vaidya, learned Senior Advocate states that the petitioner and the victim knew each other for the last six months and it is a case of romantic

love.

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.

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.

The father of the victim himself told the police that it was the accsued, who called him and informed him that his daughter had gone with him. The

conduct of the accused to call the father of the victim shows that he wanted to bring the fact to his notice that he had solemnized marriage with his

daughter, so that he is not scared of mising of his daughter and would not search her in the forest etc. It has also come in the FIR that the victim

spoke to her father and told him that she had been married with the accused. What type of marriage they performed, is not in evidence and even

otherwise, this marrige is not as per law, given the age of the victim. Still the conduct of the victim to voluntarily accompany the accused as well as

the conduct of the accused, who is aged 22 years, to himself telephonically inform the father of the victim about the solemnization of marrige with his

daughter coupled with the fact that he is in jail for the last six months, entitle him for bail, at this stage. There is no doubt that neither the victim could

have consented to sexual intercourse nor for the so called marriage, but this Court is not dealing with the trial and the instant matter pertains to grant

of bail.

An analysis of entire evidence does not justify further incarceration of the accused, nor is going to achieve any significant purpose. Without

commenting on the merits of the case, the stage of the investigation and the period of incarceration already undergone would make out a case for bail.

In the facts and circumstances peculiar to this case, the petitioner makes out 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. Twenty-five thousand (INR

25,000/-), and shall furnish two sureties of a similar amount, 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. Twenty-five thousand only (INR 25,000/-), made

in favour of ""Chief Judicial Magistrate, District Kinnaur at Reckong Peo, 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.,

Bank of America, Chase, HSBC, City Bank, 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.

(Applicable only for residents of HP). 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.

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, the State may move an appropriate application before this Court, seeking cancellation of this bail. 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. 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.