Gopal vs State Of Himachal Pradesh

Virender Singh, J

By way of the present application, filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’), applicant-Gopal has sought his release, on bail, during the pendency of trial,  in  case FIR  No.93  of  2024,  dated  28.08.2024, registered, under Sections 64(2)(m), 115(2), 351(2), 352, 127(2) of the Bharatiya Nyaya Sanhita, 2023 (hereinafter referred to as the ‘BNS’), with Police Station Baijnath, District Kangra, Himachal Pradesh.

According to the applicant, he has falsely been implicated and arrested, in this case, on 05.09.2024.

As per the applicant, investigation of the present case is complete, charge-sheet has been filed and trial, against him, will take sufficient long time, as, there are, as many as, 22 prosecution witnesses, in this case.

It is the case of the applicant that during investigation, the police has also taken into possession the marriage declaration affidavits of the applicant, as well as, of the prosecutrix i.e. respondent No.2, which have duly been attested by the Notary Public of Baijnath, District Kangra.

The applicant has also annexed the copy of affidavit, signed by respondent No.2, as Annexure P-1, along with the application. The prosecutrix had solemnized the marriage with the applicant, on 20.05.2023, out of her free will and consent.

It is the further case of the applicant that respondent No.2 is his legally wedded wife and she had gone to her parents’ house on 19.08.2024, along with him and they stayed there for few days. Thereafter, due to some matrimonial dispute, she is stated to have lodged the present FIR.

According to the applicant, he had earlier tried his luck by moving similar application, before the learned Additional Sessions Judge, Palampur, District Kangra, H.P. However, the same was dismissed, vide order dated 30.10.2024.

Apart from this, Mr. Hemant Vaid, Advocate, appearing for the applicant, has given certain undertakings, on behalf of the applicant, for which, the applicant is ready to abide by, in case, ordered to be released on bail, during the pendency of the trial.

On the basis of the above facts, a prayer has been made to allow the application.

When, put to notice, the police has filed the status report, disclosing therein, that on 28.08.2024, Zero FIR No.01/2024, made by the prosecutrix, has been received in the Police Station, Baijnath, mentioning therein that she is unemployed and belongs to a very poor family. About two years ago, her brother-in-law Pawan Kumar, who used to work in a private company in Baddi, took her with the applicant to Baddi for work. After two months, Pawan Kumar took her to Baijnath, where, the marriage of her sister-in-law was proposed to be solemnized and the applicant and his parents had a discussion, regarding her employment as domestic help, for which, the prosecutrix had given her consent.

Further, as per the said complaint, the applicant and his parents came to Baddi from Baijnath and took the prosecutrix with them. In this regard, no information was given to the family members of the prosecutrix.

It is the further allegation of the prosecutrix that the applicant and his parents locked her in the room for many days and also misbehaved with her. Thereafter, the applicant had forcibly raped her for about one month. Subsequently, the applicant and his parents took her to Tehsil Office, Baijnath, where, without her consent, she was forced to put signatures, over certain documents and thereafter, it has been apprised to the prosecutrix that now, she has been married to Gopal (applicant).

As per further allegations of the prosecutrix, thereafter, she was repeatedly raped by the applicant. She has also made the allegations against the father of the applicant by mentioning, in the complaint, that he has also forced her to have physical relations with applicant, otherwise, he will develop physical relations with her.

On 19.08.2024, on the eve of Raksha Bandhan, when, the prosecutrix came to her parents’ house, then, parents of the applicant had objected to and a quarrel had taken place between them and thereafter, the applicant, along with the prosecutrix, came to her parents’ house and they stayed there. When, the applicant forcibly made efforts to bring her back, then, on refusal by the prosecutrix, she was beaten by the applicant, in the presence of her family members.

On the basis of above facts, the prosecutrix has prayed that the action may be taken against the applicant, upon which, the FIR, in question, has been registered and criminal machinery swung into motion.

The prosecutrix was medico legally examined at Civil Hospital, Baijnath. Physical evidence, so collected, was taken into possession. The statement of prosecutrix, under Section 180 of BNSS, was recorded, before the police. Thereafter, she was produced, before the Court and her statement, under Section 183 of BNSS, was also recorded.

In the said statement, the prosecutrix has also disclosed that she was forced to sign on certain documents and she has not solemnized the marriage, as per the rituals. As per the Parivaar Register, prosecutrix has not been recorded as the wife of applicant, whereas, name of the applicant’s wife has been recorded as Guddi Devi, date of birth of whom, has been recorded as 15.11.1980 and the name of Kabbu Devi as daughter of the applicant has been recorded.

As per status report, the applicant was arrested, in this case, on 05.09.2024 and he was also medico legally examined. At his instance, his house was visited by the police and spot map was prepared. Physical evidence, from there, was also collected. The parents of the applicant were also associated, in the investigation.

The father of the applicant has produced the declaration/marriage affidavit, which was also taken into possession. It has also been found, during investigation, that no ceremony of marriage was performed in Chamunda Temple, Baijnath. The parents of the applicant were bound down by serving notice, under Section 35(3) of BNSS. Report from RFSL, Dharamshala has also been received.

After completion of investigation, the police has submitted the challan (final report), against the applicant, before the Court of learned Judicial Magistrate First Class, Baijnath and now, the case is stated to be listed on 19.12.2024, for checking of copies.

On the basis of above facts, a prayer has been made to dismiss the application.

In this case, vide order dated 19.12.2024, the prosecutrix has also been ordered to be impleaded as respondent No.2, but, despite notice, she has not put appearance, before this Court.

The investigation, in the present case, is complete and the police has submitted the charge-sheet, before the competent Court of law, upon which, the competent Court of law has taken the cognizance and as per the status report, the case was fixed for consideration on charge on 19.12.2024. Meaning thereby, the custodial interrogation of the applicant is no longer required and he cannot be kept in the judicial custody, that too, for the indefinite period, as a matter of punishment, as, pre-trial punishment is prohibited, under the law.

As per the allegations, made in the complaint, respondent No.2 was allegedly kept in the house of the applicant for a considerable long time and on the eve of Raksha Bandhan, she, along with the applicant, had gone to her parents’ house, where, the applicant had also stayed with her for about 3-4 days. Thereafter, a scuffle had taken place, between the prosecutrix and the applicant, when, the applicant had forcibly made efforts to bring her with him.

The allegations, which have been levelled, against the applicant, will be proved during the trial. Moreover, the chances of conclusion of trial, against the applicant, in near future, are not so bright. As such, no useful purpose would be served, by keeping the applicant, in judicial custody, that too, for the indefinite period.

Considering all these facts, this Court is of the view that the applicant is able to make out a case for his release, on bail, during the pendency of the trial. Hence, the present bail application is liable to be allowed and is accordingly allowed.

Consequently, the applicant is ordered to be released on bail in case FIR No.93 of 2024, dated 28.08.2024, registered, under Sections 64(2)(m), 115(2), 351(2), 352, 127(2) of the BNS, with Police Station Baijnath, District Kangra, Himachal Pradesh, on his furnishing bail bonds, in the sum of ₹50,000/-, with one surety of the like amount, to the satisfaction of the learned trial Court.

This order, however, shall be subject to the following conditions:

a) The applicant shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

b) The applicant shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c) The applicant shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; and

d) The applicant shall not leave the territory of India without the prior permission of the Court.

Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail application.

It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found to be violated by the applicant.

The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, Lala Lajpat Rai, District and Open Air Correctional Home, Dharamshala, District Kangra, Himachal Pradesh, through e-mail, with a direction to enter the date of grant of bail in the e-prison software.

In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Jail, Lala Lajpat Rai, District and Open Air Correctional Home, Dharamshala, District Kangra, Himachal Pradesh, is directed to inform this fact to the Secretary, DLSA, Kangra. The Superintendent of Jail, Lala Lajpat Rai, District and Open Air Correctional Home, Dharamshala, District Kangra, Himachal Pradesh, is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court.