Kailash Chand vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

Instant regular bail petition arises out of the FIR No.23/21, dated 30.11.2021 registered at Women Police Station, Dharamshala, District Kangra (HP). The petitioner is facing accusations therein under sections 376, 384, 201 and 506 of the Indian Penal Code.

According to the prosecution, FIR in question was registered on the basis of a complaint of the prosecutrix presented to the Deputy Commissioner Kangra, Dharamshala on 30.11.2021. The complainant stated therein that:- Around six- seven months ago, because of her family’s pitiable and poor condition, she ventured out from her home for search of a job. She became a labourer in a tea garden at Palampur. She met an old woman there, who had a daughter and a son name Kailash Jamwal (bail petitioner). One day, while at work, something had entered her clothes. To inspect the same, she went inside a room and took out her clothes. She was not aware at that time that the petitioner had clicked her photographs and made a video of her. He started blackmailing her thereafter, using those photos and videos. Under threat of the blackmail, petitioner established physical relations with the prosecutrix many times. The complainant/prosecutrix being a simple lady, unaware of law, acceded to the petitioner’s demand under the threats of defamation and blackmail. Though she complained about her sexual exploitation in the hands of the petitioner to his mother and sister, but they in turn accused her and threatened that she would be defamed in village in case she disclosed the incident to anyone. Petitioner under the threat of making public her obscene video also forced her to bring money & jewelery. In this manner, she handed over her gold ring, bangle and necklace to the petitioner. When she wanted to end her life, her brother-in-law came to know about it and inquired the entire matter. He instilled confidence in her, as a result of which, she mustered the courage to lodge the complaint against the petitioner.

On the basis of above complaint dated 30.11.2021, the FIR was registered the same day. Statement of prosecutrix was recorded under Section 161 of the Code of Criminal Procedure on 30.11.2021 and further on 5.12.2021. The prosecutrix was medically examined on 30.11.2021, but on account of stated menstrual problem, she was medically examined again on 25.01.2022. Her statement under Section 164 of the Code of Criminal Procedure was recorded on 2.12.2021. The petitioner was arrested on 01.12.2021 i.e. the very next day after lodging of the complaint and registration of the FIR. He is in custody w.e.f. 01.12.2021.

Learned counsel for the petitioner pleaded that the bail petitioner and the prosecutrix were very well acquainted with each other. They both are married and have children. Both of them were very well aware about each others’ marital status. The petitioner and the prosecutrix were in contact with each other out of their own free will and consent. The prosecutrix has lodged the complaint trying to save her face in front of her family members. Learned counsel further submitted that the petitioner is a labourer and a local resident. He is not in a position to either influence the prosecution witnesses or tamper with the prosecution evidence. The petitioner also undertakes not to influence or tamper the prosecution evidence, in case of his enlargement on bail. He will abide by all the terms and conditions of the bail and will not threaten or induce the prosecution witnesses including the complainant and her family members.

Mr. Arvind Sharma, learned Additional Advocate General opposed the bail petition and submitted that the petitioner had committed a heinous offence. He had blackmailed the prosecutrix in order to have physical relations with her. Learned Additional Advocate General further submitted that they have enough evidence against the petitioner at this stage to support the allegations levelled by the complainant. In case of release on bail, the petitioner can intimidate the complainant and the witnesses. Hence, he prayed for dismissal of the present petition.

I have heard learned counsel for the parties and gone through the status report and record produced by the investigating agency.

As per status report and the record of the case, Regional Forensic Science Laboratory Northern Range, Dharamshala (HP) had submitted its report on 07.05.2022. According to the report, no obscene video of the victim was found in the extracted data of Exhibit-1. During hearing of the case, learned Additional Advocate General informed that Exhibit-1 is the mobile phone in question belonging to the accused petitioner. Further as per report, the audios, images and whatsapp chat (upto 30.11.2021) found in extracted data of Exhibit-2 were bookmarked and supplied in CD. Learned Additional Advocate General apprised that Exhibit-2 was the mobile phone belonging to the prosecutrix. Thus, on the basis of RFSL report prima facie it appears that neither obscene video of the victim/prosecutrix was found in the mobile phone of the petitioner nor in the mobile phone of the victim.

Prosecutrix in her complaint lodged on 30.11.2021, mentions about obscene photographs and a video allegedly made by the petitioner. It seems that in her statement under Section 161 of the Code of Criminal Procedure recorded the same day i.e. 30.11.2021, she improved upon the complaint by saying that she was not aware as to whether the petitioner had made her obscene video or not, but said that she was blackmailed under the threat of her obscene video being there with the petitioner. In fact the gist of her statement under Sections 161 & 164 of Code of Criminal Procedure is that under the threat of blackmail on count of her obscene video, the petitioner had forced her to have physical relations with him. The prosecutrix is a married lady with two children. She was aged 35 years at the time of filing of the complaint. As per her statements recorded under Sections 161 & 164 CPC, she herself had not seen her obscene video. As already noticed above, RFSL report has not found any obscene video of the victim in the mobile phones belonging to the petitioner and the victim.

Investigation in the matter is stated to be complete. Challan was presented in the Court of competent jurisdiction on 21.07.2022. Supplementary challan has also been filed on 02.04.2022. As per the status report, the petitioner was arrested on 01.12.2021. Bail Petitioner has submitted in the petition that he is resident of Village & Post Office Thandol, District Kangra, H.P., therefore, his presence can always be secured in the trial. Nothing is to be recovered from the petitioner. In the facts and circumstances of the case, no significant object will be achieved by keeping him confined any further. The apprehension that the petitioner can intimidate the prosecutrix and the prosecution witnesses can be taken care of by imposing stringent conditions upon the petitioner including the one that he will not contact the prosecutrix and her family members and further that he will not threaten them in any manner whatsoever. Consequently, the present petition is allowed. Petitioner is ordered to be released on bail in the aforesaid FIR on his furnishing personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand only) with one local surety in the like amount to the satisfaction of the learned trial Court having jurisdiction, subject to the following conditions:-

(i) Petitioner is directed to join the investigation of the case as and when called for by the Investigating Officer in accordance with law. He shall fully cooperate the investigating officer and will appear before him in the concerned police station as and when called in accordance with law’

(ii). Petitioner shall not tamper with the evidence or hamper the investigation in any manner whatsoever;

(iii). Petitioner shall not contact the complainant or her family members in any manner whatsoever. He shall also not contact, threaten or intimidate the victim in any manner whatsoever.

(iv) Petitioner will not leave India without prior permission of the Court;

(v). Petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer;

(vi) Petitioner shall attend the trial on every hearing, unless exempted in accordance with law.

(vii). Petitioner shall inform the Station House Officer of the concerned police station about his place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of their Aadhar Card, Telephone Number, E-mail, PAN Card, Bank Account Numbers, if any;

In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter. Any observation hereinabove shall not be taken as an expression on merits of the case and learned Trial Court shall decide the matter uninfluenced by any of observations made hereinabove.

With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous applications, if any.