Joginder Alias Jodhu vs State Of Himachal Pradesh

Anoop Chitkara, J

The victim had filed a complaint in the Police Station, Janjehli, District Mandi alleging that on 28.4.2020 when she had gone to cut grass in her grassland then Joginder Singh, bail petitioner herein, came there and committed forcible sexual intercourse with her. She further stated that prior to that also he had indulged in sexual intercourse with her, but she kept quite to avoid public humiliation.

While issuing notices to the State, the Court had requested Mr. Nand Lal Thakur, Additional Advocate General to procure status report either through WhatsApp/e-mail and forward the same to this Court on e-mail id highcourt-hp@nic.in and also send the scanned copy or PDF copy of the status report to the learned Counsel for the petitioner on his WhatsApp number.

Mr. Nand Lal Thakur, learned Additional Advocate General has filed the status report through e-mail, printout whereof has been placed on record. He further submits that he has sent a copy of the status report to learned Counsel for the petitioner on his WhatsApp number.

I have read the status report(s) and heard counsel for the parties through video conferencing.

The petitioner did not file any power of attorney. To contain the spread of Novel Corona Virus, the Epidemiologists have advised to maintain social distancing in the entire world. Consequently, to avoid unnecessary congregation, this Court exempts the petitioner from filing the power of attorney.

FACTS

The gist of the First Information Report and the status report is that the victim had filed a complaint in the Police Station, Janjehli, District Mandi alleging that on 28.4.2020 when she had gone to cut grass in her grassland then Joginder Singh, (bail petitioner) herein, came there and committed forcible sexual intercourse with her. She further stated that prior to that also he had committed sexual intercourse with her, but she made herself keep quite to avoid public humiliation. Subsequently, the Police arrested the petitioner.

PREVIOUS CRIMINAL HISTORY

No previous criminal history.

SUBMISSIONS:

Mr. Sanjeev Bhushan, learned Senior Counsel for the bail petitioner submits that the prosecutrix initially lodged a false complaint probably due to some social and moral reasons but later one she has absolved the petitioner of all accusations. To the contrary, Mr. Nand Lal Thakur, learned Additional Advocate General submits that the victim is suffering from some psychiatric problem and it appears that due to her mental ailment, the possibility of her statement under Section 164 Cr.P.C., being under-that illusion cannot be ruled out.

Subsequent to the FIR, the police produced the victim before learned Judicial Magistrate 1st Class at Gohar for recording her statement under Section 164 Cr.P.C. Consequently on 30.4.2020 the victim made her statement on oath before learned Judicial Magistrate 1st Class, Chachiot at Gohar, who happened to be a female Judge. In this statement, the victim stated that whatever had happened with Joginder Singh (bail petitioner) was with her consent. She further stated that the coitus had also taken place with her consent and there was no fault of Joginder Singh in it. She further stated that she does not want any sentence to be imposed upon him and wants to withdraw the case.

Be that as it may, the statement under Section 164 Cr.P.C is recorded on oath before the Court, which is just like an Umpire and is Neutral to the victim as well as to the accused. Consequently the statement under Section 164 Cr.P.C. stands on a much higher pedestal in comparison to the statement under Section 154 Cr.P.C.

ANALYSIS AND REASONING:

Pre-trial incarceration needs justification depending upon the heinous nature of the offence, terms of the sentence prescribed in the Statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, and doing away with victim(s) and/or witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State.

(a) The material aspect of the investigation is complete.

(b) The petitioner is in judicial custody since 29.4.2020.

(c) The petitioner is a permanent resident of address mentioned in the memo of parties; therefore, his presence can always be secured.

(d) Before releasing the petitioner from custody, his AADHAR and other proofs of identity to secure presence during trial.

Given the above reasoning, in my considered opinion, the judicial custody of the petitioner is not going to achieve any significant purpose. Thus, the Court is granting bail, subject to the following conditions, irrespective of the contents of the bail bonds, and the furnishing of personal bond shall be deemed acceptance of all stipulations, terms and conditions of this bail order:

(a) The petitioner shall furnish personal bond in the sum of Rs.10,000/- and one surety in the like amount, to the satisfaction of the Sessions Court/Special Court/ Chief Judicial Magistrate/Illaqua Magistrate/Duty Magistrate/the Court exercising jurisdiction over the concerned Police Station where FIR is registered. The petitioner be released on his personal bonds and further he shall furnish the surety bond of the similar amount, on or before July 31, 2020, failing which this bail shall automatically stand cancelled and the petitioner shall surrender on August 1, 2020, before the Court accepting the bond, from where he is being released. The Court is dispensing with the requirement of furnishing surety bond at this stage to avoid travelling of persons to furnish the sureties, to abide by the lock-down ordered by the Government for the safety of the people, by maintaining social distancing to contain the spread of the Covid- 19 disease.

(b) The bail bonds shall continue to remain in force throughout the trial and even after that in terms of Section 437 - A of the CrPC.

(c) The petitioner shall join investigation as and when called by the Investigating Officer or any superior officer. Whenever the investigation takes place within the boundaries of the Police Station or the Police Post, then the petitioner shall not be called before 8 AM and shall be let off before 5 PM. The petitioner shall not be subjected to third-degree treatment, indecent language etc.

(d) The petitioner shall fully co-operate in the investigation and shall not hamper it, in any manner what so ever.

(e) The petitioner shall not influence, threaten, browbeat or pressurize the complainant, witnesses, and the Police official(s).

(f) The petitioner shall not make any inducement, threat, or promise, directly or indirectly, to the Investigating officer, or any other person acquainted with the facts of the case, to dissuade her from disclosing such facts to the Police, or the Court, or tamper with the evidence.

(g) The petitioner shall appear before the trial Court, on issuance of summons/warrants by such Court.

(h) There shall be a presumption of proper service to the petitioner about the date of hearing in the trial Court, even if such service takes place through phone/mobile/SMS/WhatsApp/E-Mail/Facebook or any other similar medium, by the trial Court, or by the Prosecution. In case the petitioner does not appear before the trial Court on such date of hearing, then the trial Court may issue bailable warrants, and if the petitioner still fails to put in appearance, then the trial Court may issue Non-Bailable warrants to procure the presence of the petitioner, and send the petitioner to the Judicial custody for the period for which the trial Court may deem fit and proper, without being unduly harsh towards him.

(i) The petitioner shall attend the trial on each date, unless exempted.

(j) In case of Non-appearance on the intimated date, then irrespective of the contents of the bail bonds, the petitioner undertakes to pay all the expenditure (only the principal amount without interest), that the State might incur to produce him before such Court, provided such amount exceeds the amount recoverable after forfeiture of the bail bonds, subject to the provisions of Sections 446 & 446-A of CrPC. The failure of the petitioner to reimburse the State shall entitle the trial Court to order transfer of money from the bank account(s) of the petitioner. However, this recovery is subject to the condition that the expenditure incurred must be only to trace the petitioner and relates to the exercise undertaken solely to nab the petitioner in that FIR, and during that voyage, the Police had not gone for any other purpose/function what so ever.

(k) The petitioner shall abstain from all criminal activities, if he does so, then in the fresh FIR, the Court shall take into account that even earlier the Court had cautioned the accused not to repeat the offence.

(l) The petitioner shall surrender all firearms along with ammunitions, if any, and the arms license to the concerned authority within 30 days from today.

(n) The petitioner shall inform the SHO about the place of residence during trial. The petitioner shall intimate about the change of residential address, within two weeks from such change, to the police station, and after filing of the Police report also to the trial Court.

(o) In case of violation of any of the conditions as stipulated in this order, the State/Public Prosecutor may file an application for cancellation of bail of the petitioner, and even the trial Court shall be competent to cancel the bail.

In case the petitioner finds the bail condition(s) as violating fundamental or other rights, including any human rights, or faces any other difficulty due to any condition, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, before the Court taking cognizance or the trial Court, as the case may be and the trial Court shall also be competent to modify or delete any condition.

The Counsel representing the accused and the Judicial officer accepting the bail bonds, shall explain all conditions of this bail order to the petitioner, in vernacular.

The petitioner undertakes to comply with all directions given in this order, and the furnishing of bail bonds by the petitioner is acceptance of all such conditions.

Consequently, the petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing personal bond in the aforesaid terms.

The Court attesting the personal bonds shall ascertain the identity of the bail-petitioner, his family members, through AADHAR Card. The petitioner shall give details of AADHAR Card, phone number(s), WhatsApp number, e-mail, Facebook account, etc., Pan Card and Passport if available, on the reverse page of the personal bonds. The petitioner shall also furnish details of personal bank account(s).

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

The present bail order is only for the FIR mentioned above. It shall not be a blanket order of bail in all other cases, if any, registered against the petitioner.

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

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.

Therefore, keeping in view the statement of the prosecutrix/victim, under Section 164 Cr.P.C., the petition stands allowed in the terms mentioned above.

The Court Master shall handover this order to the concerned branch of the Registry of this Court, and the said official shall immediately send a copy of this order to the District and Sessions Judge, concerned, by e-mail. The Court attesting the personal bonds shall not insist upon the certified copy of this order, and shall download the same from the website of this Court, or accept a copy attested by an Advocate, which shall be sufficient for the purposes of the record.

The Court Master shall handover an authenticated copy of this order to the Counsel for the Petitioner, and to the Learned Advocate General, if they ask for the same.