Vijay Kumar vs State Of Himachal Pradesh

Anoop Chitkara, J

An unmarried boy aged 18 years, who is in custody since 21.3.2020 for establishing coitus with an unmarried minor girl aged 15 years, has come up

before this Court seeking regular bail.

A perusal of the petition reveals that the petitioner straightway filed the bail petition before High Court, which is permissible given the decision of a

three Judges Bench of HP High Court, in Mohan Lal v Prem Chand, AIR 1980 HP 36, (Para 9 & 15), wherein the Full bench holds that a person can

directly apply for an anticipatory bail or regular bail to the High Court without first invoking the jurisdiction of the Sessions Judge.

The bail petition is silent about criminal history, however, Mr. Udayanand Sharma, learned Counsel for the bail petitioner states on instructions that

the petitioner has no criminal past relating to the offences prescribing sentence of seven years and more, or when on conviction, the sentence imposed

was more than three years. The status report also does not mention any criminal past of the accused

Briefly, the allegations against the petitioner are that on 20.3.2020, the victim alongwith her mother reached Police Station and informed about the

victim aged 15 years having raped by two persons namely Vijay Kumar (A-1), petitioner herein and Dina Nath (A-2). Based on this information, the

Police registered FIR mentioned above and arrested both the persons.

Ld. Counsel for the petitioner contends that although the petitioner had filed bail application being Cr.MP(M) No.435 of 2021, but inadvertently due

to wrong mentioning of facts, the same was dismissed vide order dated 23.4.2021. Earlier thereto, the petitioner had also filed bail application being

Cr.MP(M) No.25 of 2021, which was dismissed, but at that time they could not argue the case properly because of voice disruption during the video

conference. Learned counsel further referred to the statement of the victim under Section 164 Cr.PC which makes out a case for bail.

Today, file of Cr.MP(M) No.435 of 2021 was called from the Registry of this Court as complete copy of Challan and status report was annexed

with that file and the Court had directed vide order dated 23.4.2021 that the Court shall resort to such file for the documents. Accordingly, I have gone

through the Challan and status report annexed with this file.

Mr. Nand Lal Thakur, learned Additional Advocate General while opposing the bail, submits that the victim is aged 15 years and, as such, there is

no question of consent. He further argues that if the petitioner is released on bail then on this ground co-accused Dina Nath (A-2) shall also seek bail

on the basis of parity. As such, in case this Court grants bail to Vijay Kumar (A-1), petitioner herein, on the conduct of the victim, then it should be

specified that this order shall not be construed to entitle Dina Nath (A-2) for bail because his case is differently placed.

ANALYSIS & REASONING:

I have heard learned counsel for the parties. The petitioner has placed on record the copy of 173 Cr.PC report. A perusal of the MLC reveals that

the age of the victim is mentioned as 15 years. However, the Doctor during physical examination did not notice any external injuries. The statement of

the victim recorded under Section 154 Cr.PC is also placed on record. A perusal of the statement of the victim under Section 164 Cr.PC recorded on

26.5.2020, i.e. after two months of the incident, apparently due to COVID-19 lockdown, reveals a different story. It is stated that on 18.3.2020, she

had gone to attend a Yajna in the house of her sister. She was returning home alongwith one Lucky and another female friend. On the way back,

Lucky offered her liquor which she took. In the meanwhile, she received a phone call from Boby (Vijay Kumar, petitioner herein) who told her to visit

him otherwise he would die. He also told her that he wanted to marry her. Boby told her to visit him in the vehicle of Sanju. On this, the victim called

Sanju and asked him to come. Sanju came there in his vehicle and she proceeded towards Pathankot in the vehicle of Sanju. On the way to Pathankot,

at a place near Padhar, Sanju stopped the vehicle and raped her forcibly. He also threatened her of dire consequences in case she revealed the

incident to anyone. He further threatened her that in case she would tell this incident to anyone, then he would kill her family members. After that, he

dropped the victim with Boby (Vijay Kumar, petitioner herein), who was in his truck and he himself returned back. Thereafter, Boby in his truck also

committed forcible sexual intercourse with her and went to unload and load the truck. On the way, the mother of the victim alongwith the owner of the

truck intercepted them and brought them to the Police Station.

A perusal of the statement of the victim under Section 164 Cr.PC points out that the victim herself went in the vehicle of Dina Nath @ Sanju (A-2)

to meet Boby @ Vijay Kumar (A-1), petitioner herein. Even when Sanju had raped the victim in his vehicle, still she never told Sanju to drop her back

to her home, but she proceeded to meet Boby @ Vijay Kumar (A-1), petitioner herein. There are no allegations that in the truck while committing

sexual intercourse, Boby used any pressure, threat or intimidation. In fact, there is no allegation of use of any force by Boby @ Vijay Kumar while

committing sexual intercourse. Needless to say, the victim being under 18 years of age could not have consented. But her conduct in voluntarily

visiting Boby and at the time of sexual intercourse absence of pressure, threat or any intimation, coupled with the fact that the petitioner is just 18

years of age and is in custody for more than 13 months, makes out a case for bail.

The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing from

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.

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.

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 Mandi, 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.,

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.

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.

Copy Dasti.