Mohit And Others vs State Of Himachal Pradesh

Virender Singh, J

The above-titled three bail applications are being disposed of by the common order, as, all the three bail applications have been filed, in the same FIR, i.e. FIR No. 34 of 2023, dated 20th March, 2023, registered with Police Station Parwanoo, District Solan, H.P., under Sections 376-D and 34 of the Indian Penal Code (hereinafter referred to as ‘IPC’).

By way of the above-titled bail applications, filed under Section 439 of the Code of Criminal Procedure (hereinafter referred to as ‘CrPC’), the applicants have sought the relief that they may be released on bail, during the pendency of trial, in the above-noted case.

According to the applicants, they are innocent persons and have falsely been impleaded by the police, in this case.

Doubting the case of the prosecution, it is the case of the applicants that they are presently in judicial custody and no useful purpose would be served by keeping them in judicial custody.

According to applicants, they are not required for investigation by the police. They have also highlighted the contradictions made by the complainant-victim in her statements, recorded at different stages of proceedings/ investigation.

Apart from this, the applicants have also given certain undertakings, for which they are ready to abide by, in case, released on bail, during the trial of the case.

The applicants have also tried their luck by moving bail applications, under Section 439 CrPC, before the Court of learned Additional Sessions Judge, Solan, District Solan, H.P., however, the applications were dismissed, vide order, dated 7th June, 2023.

When put to notice, the police has filed the status report, disclosing therein, that on 19th March, 2023, at about 10:39 p.m., police of Police Station, Parwanoo received a telephonic information from Police Control Room, Solan that the victim had made a complaint telephonically at Police Head Quarter at Shimla that she had come to Himachal Pradesh with her friends from Haryana and had stayed at hotel Red Chimney Chakkimor. It was further alleged that victim was locked in the hotel room by her friends.

8.1. On this information, HC Ajay Gupta, alongwith other police officials, and one Lady Constable went to the spot. On reaching Hotel Red Chimney, the police party found the applicants in Room No. 203 of the Hotel. On the checking of Room No. 204, victim was found alone in the room. On inquiry, the three boys in room No. 203 disclosed their names as Mohit, Amit Kumar and Jaiveer (applicants).

8.2. Thereafter, a written complaint was filed by the victim to the police, stating therein, that on 19th March, 2023, she had come from Haryana to Himachal alongwith her friend Mohit (applicant in CrMP (M) No. 1440 of 2023), who is known to her for about 2-3 months. When they reached at Red Chimney Hotel, at about 7:30 p.m., she found one girl and two boys in the room and all of them celebrated birthday of Mohit (applicant in CrMP (M) No. 1440 of 2023).

8.3. Thereafter, she alongwith Mohit (applicant in CrMP (M) No. 1440 of 2023) went to another room, where, she had physical relations with Mohit (applicant in CrMP (M) No. 1440 of 2023) with her consent. Thereafter, victim moved back alongwith Mohit (applicant in CrMP (M) No. 1440 of 2023) to that room where birthday was celebrated, to consume beer, where the applicants forcibly made physical relations with her against her will.

8.4. On the basis of the complaint made by the complainant, FIR was registered and investigation was carried out. During investigation, on the demarcation of the victim, spot map was prepared, photographs of the spot were also clicked, the CCTV footage from the hotel was also taken into possession, double bed sheets from the hotel rooms alongwith six packets of condom (sealed) were also taken into possession by the police vide separate memo. Car bearing No. HR-31N-7932, alongwith its documents and keys, was also taken into possession. Medical examination of the victim was got conducted and her MLC was obtained.

8.5. Thereafter, the accused persons (applicants) were arrested, in the present case. The statement of victim, under Section 164 CrPC, was also got recorded. The other codal formalities were also completed by the police.

8.6. It is the further case of the police that after completion of the investigation, challan against the accused persons (applicants) has already been filed before the Court of learned ACJM, Kasauli, on 17th May, 2023.

8.7. According to the status report, the DNA report is yet awaited and after receiving the same, the supplementary challan would be filed in the Court.

8.8. Apart from this, highlighting the fact that the offence involved, in the present cases, is a heinous crime, it has been argued by the learned Additional Advocate General, appearing for the State, that the applicants are residents of Haryana and in case, they are released on bail, they may coerce the witnesses and will not be available for the trial.

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

First of all, so far as the alleged contradictions in the statement of the victim, as highlighted by the applicants, are concerned, for the purpose of deciding the bail applications, those contradictions are not liable to be taken into consideration, at this stage, because, that is the sole prerogative of the learned trial Court. At the time of deciding the bail applications, the detailed discussion about the merits and de-merits of the evidence, so collected by the Investigating Officer, during the investigation, should be avoided, as it would cause prejudice to the case of the prosecution or to the case of the accused.

Moreover, considering the factual position, as mentioned in the status report, the challan has already been filed against the applicants. Meaning thereby, they are no longer required for the investigation by the police. The chances of the commencement and conclusion of the trial against the accused persons (applicants) are not so bright, as such, no useful purpose would be served by keeping them in judicial custody.

Even otherwise, the bail applications cannot be rejected as a matter of punishment, as, pre-trial punishment is prohibited under the law. The role allegedly played by the applicants, in the commission of the alleged crime, will be proved during the course of the trial.

In the status report, no other criminal history of the applicants has been pleaded or argued.

So far as the apprehensions, which have been highlighted by the learned Additional Advocate General, appearing for the State, are concerned, for those apprehensions, reasonable conditions can be imposed, in case, their bail applications are allowed.

The cumulative effect of the above discussion is that the applicants are entitled to be released on bail. Consequently, their bail applications are allowed.

The applicants are ordered to be released on bail, in case FIR No. 34 of 2023, dated 20 th March, 2023, registered with Police Station Parwanoo, District Solan, H.P., under Sections 376-D and 34 IPC, on their furnishing personal bail bonds, in the sum of ₹ 1,00,000/- each, with one surety each of the like amount, to the satisfaction of learned CJM, Solan/ACJM, Kasuali. This order, however, shall be subject to the following conditions:

a) They 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) They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c) They 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) They 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 applications.

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 applicants.

The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, Solan, through e-mail, with a direction to enter the date of grant of bail in the e-prison software.

In case, the applicants are not released within a period of seven days from the date of grant of bail, the Superintendent of Jail, Solan, is directed to inform this fact to the Secretary, DLSA, Solan. The Superintendent of Jail, Solan is further directed that if the applicants fail 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.