Yatish Gupta vs State Of Himachal Pradesh

Anoop Chitkara, J

The petitioner whose marriage was fixed with the complainant and in the intregnum committed coitus with her and also promised to marry her and

subsequently resiled from marrying, which led to registration of FIR and his arrest. The petitioner after two months of his custody sought interim bail

to marry the complainant, which was granted. The petitioner solemnized marriage with the complainant on 7.12.2018 during interim bail and after that

keeping in view his conduct, learned Sessions Judge, Shimla granted regular bail to him vide order dated 2.11.2018. Subsequently, the accused mis-

behaved, ill-treated and thrown the victim out of his house. Feeling cheated, the victim filed an application under Section 439(2), Cr.PC before

Sessions Court, Shimla for cancellation of bail. Looking at the conduct of the accused, learned Additional Sessions Judge-1, Shimla vide order dated

9.12.2019 cancelled his bail. After that, the petitioner was arrested and his another application filed before the same Court was also rejected vide

order dated 25.8.2020. Feeling aggrieved, the petitioner has come up before this Court seeking regular bail.

The police arrested the petitioner in FIR No.196 of 2018, dated 23.9.2019, registered under Section 376, 354, 420 and 120B of Indian Penal Code,

1860, (IPC), in Police Station, Dhalli, District Shimla, Himachal Pradesh, disclosing cognizable and non-bailable offences.

Briefly, the allegations against the petitioner are that:

a. on 23.9.2018, the victim handed over a written complaint to SHO, Police Station, Dhalli, Shimla. She contended that she was a resident of Sanjauli,

Shimla and in June, 2017. the proposal of her marriage started with Yatish Gupta (accused-petitioner). In October, 2017, the marriage was fixed and it

was decided that the marriage would take place in February, 2018. After that, there were some disputes about the wedding and she had gone to

Chandigarh to search a job.

b. Then, in the meantime, she called Yatish Gupta on phone and Yatish Gupta told her that if she wanted to marry him, then she should visit Dehradun,

and even his mother would meet her, and whatever differences have arisen would also be resolved. Upon this, on 24th December, she went to

Dehradun and met family members of Yatish Gupta. After that, the petitioner and his family members assured her about wedding, and then he also

took her for sight seeing. He brought her to Shivam Guest House. Since there was no conveyance available, they stayed in this Guest House. In the

Guest House, the petitioner intimidated her, threatened her and without her will and consent, established coitus with her, Next morning, petitioner and

his family again assured her of wedding.

c. On 12.5.2018, Roka ceremony took place in Dehradun and the date of wedding was fixed for 12th December. The victim further alleged that they

were misleading her about wedding and started demanding dowry articles. She further stated that in April, 2018 when they had gone to Haridwar, then

Yatish Gupta had molested her. She further stated that they were supposed to engage on 21.4.2018, but Yatish Gupta refused for engagement on the

ground that the victim was very fast and was inquiring from his friends about his habit of consuming marijuana (Ganja).

d. She further stated that in her society once the wedding would break, then nobody would re-marry the said girl and accordingly, the petitioner spoiled

her life. She further stated that on 25.5.2018 when Yatish Gupta had visited Shimla, then again he had molested her. She stated that he treated her like

his toy. Whenever he wanted to play with her, he would play and whenever he was fed up, he would leave her. She further stated that the petitioner

would threaten her about his influencial resources and told her that nothing would happen to him because of his connections with political party in

power. The complainant also alleged that in a temple on Musoori road, the accused had also put ‘Sindoor’ on her parting.

e. She also levelled other allegations leading to demand of gifts etc. She also stated that she did not want to register FIR. However, the police prima

facie found a case punishable under Section 376, 354, IPC and registered the FIR.

f. During the investigation, the police took the victim for her medical examination and also got her statement under Section 164, Cr.PC. recorded.

g. The investigator also found the involvement of Shri Satish Gupta, father of the petitioner, Smt. Sudha Gupta, mother of the petitioner and Shri

Arvind Gupta, uncle of the petitioner and as such, added Sections 420 and 120B in the said FIR. The police arrested the accused on 29.9.2018.

h. The petitioner filed an application for bail before the learned Sessions Judge, Shimla, which was registered as bail application No.256-S/22 of 2018.

Vide order dated 2.11.2018, learned Sessions Judge, Shimla granted bail to the petitioner on the grounds that in the status report, it was mentioned that

the accused had sought interim bail for performing marriage with the complainant and the said interim bail was granted on 13.10.2018 and the accused

was released on interim bail for one week. Status report further revealed that the accused solemnized marriage with the convict on 30.10.2018 and

produced the documents of marriage with the police. Status report further revealed that both the complainant and the accused were happy with the

marriage and there was no objection if bail petition was allowed. Consequently, the learned Sessions Judge, Shimla released the petitioner on bail.

(i) After that, the complainant filed an application under Section 439(2), Cr.PC before Sessions Court, Shimla for cancellaion of bail, Vide order dated

9.12.2019 passed in Cr.MP No.3150/2019-310-S of 2019, learned Additional Sessions Judge-1, Shimla cancelled the bail granted by the learned

Sessions Judge, Shimla on the grounds that after solemnizing marriage, the accused deserted the victim. Learned Additional Sessions Judge-1, Shimla

was of the opinion that the accused had solemnized marriage with ulterior motive only to get bail and once he got bail, he started irritating the victim to

teach her a lesson. The learned Additional Sessions Judge-1, Shimla also observed that the conduct of the accused did not justify the bail.

(j) After that, the petitioner filed a bail application under Section 439, Cr.PC before Sessions Court, Shimla and vide order dated 25.8.2020 passed in

bail application No.21/2020-2/S/22 of 2020, learned Additional Sessions Judge-1, Shimla dismissed the bail on the ground that there were no changed

circumstances after the cancellation of the bail by the Court. Feeling aggrieved, now, the petitioner has come up before this Court under Section 439,

Cr.PC seeking regular bail.

I have gone through the record of the case and heard learned counsel for the parties. I have also heard the complainant through video conferencing

alongwith her counsel, Shri Manish Datwalia and she has opposed the bail.

While opposing the bail, the alternative contention on behalf of the State is that if this Court grants bail, such order must be subject to conditions.

ANALYSIS AND REASONING:

In Gurbaksh Singh Sibbia and others v. State of Punjab, 1980 (2) SCC 565, (Para 30), a Constitutional bench of Supreme Court held that the bail

decision must enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail. In Kalyan Chandra Sarkar v. Rajesh

Ranjan @ Pappu Yadav, 2005 (2) SCC 42, (Para 18) a three-member bench of Supreme Court held that the persons accused of non-bailable offences

are entitled to bail, if the Court concerned concludes that the prosecution has failed to establish a prima facie case against him, or despite the existence

of a prima facie case, the Court records reasons for its satisfaction for the need to release such persons on bail, in the given fact situations. The

rejection of bail does not preclude filing a subsequent application, and the Courts can release on bail, provided the circumstances then prevailing

requires, and a change in the fact situation. In State of Rajasthan, Jaipur v. Balchand, AIR 1977 SC 2447, (Para 2 & 3), Supreme Court noticeably

illustrated that the basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or

thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who

seeks enlargement on bail from the court. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of

justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. In Gudikanti Narasimhulu v. Public

Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240, (Para 16), Supreme Court in Para 16, held that the delicate light of the law favours

release unless countered by the negative criteria necessitating that course. In Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22, (Para 6),

Supreme Court held that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is

unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict

as to be incapable of compliance, thereby making the grant of bail illusory.

Pre-trial incarceration needs justification depending upon the offense's heinous nature, terms of the sentence prescribed in the statute for such a

crime, probability of the accused fleeing from justice, hampering the investigation, criminal history of the accused, and doing away with the victim(s)

and 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. However, while deciding bail applications, the Courts should discuss evidence relevant only for determining bail. The difference in

the order of bail and final judgment is similar to a sketch and a painting. However, some sketches are in detail and paintings with a few strokes.

The petitioner was initially arrested on 30.9.2018 and he was released on bail vide order dated 2.11.2018, which means that the petitioner had

remained incarcerated for more than two months. When the learned Additional Sessions Judge-1, Shimla cancelled his bail vide order dated 9.12.2019,

the petitioner was arrested and he is continuing in judicial custody for the last more than one year. In all, the petitioner has remained in custody for

around 14 months.

The victim who was not a child or a kid, she would know the ethics prevalent in her society, her conduct in travelling alone to Dehradun. Even if it

is presumed that despite alleging that in Dehradun the accused had raped her without her will and consent, she continued to be in his company, and

wanted to marry him and tolerated molestation on 2-3 times. All this conduct does not seem to be as simple and plain, she has alleged.

Without commenting at this stage about the justification for cancellation of bail or such a long incarceration, it would suffice to say at this stage,

that the petitioner is released on bail without any further delay.

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.

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

fleeing justice, can be taken care of by imposing elaborative conditions 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.

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.

Following the decision of this Court in Manish Lal Shrivastava v. State of Himachal Pradesh, Cr.MP(M) No. 1734 of 2020, decided on 1st Dec

2020, the petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. One ten thousand (INR

10,000/-), and shall either furnish two sureties of a similar amount, both of whom, in case of default from putting in an appearance, can produce the

accused before the Court to the satisfaction of the Judicial Magistrate, Shimla/ Chief Judicial Magistrate, District Shimla, HP/ or any other Judicial

magistrate of District Shimla, HP or the aforesaid personal bond and fixed deposit(s) for Rs. Ten thousand only (INR 10,000/-), made in favour of

“Chief Judicial Magistrate, District Shimla, H.P.â€, 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. The arresting officer shall give a time of ten working days to enable the accused to prepare a fixed deposit. Such a

fixed deposit need not necessarily be made from the account of the petitioner. If such a fixed deposit is made on paper, then the original receipt shall

be handed over to the arresting officer. 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. The petitioner or his Advocate shall inform at the earliest, either by e-mail or by

post/courier, the concerned branch of the bank about the fixed deposit, whether made on paper or in any other mode, along with its number as well as

FIR number, that it has been tendered as surety. After that he shall hand over such proof along with endorsement to the Investigator. 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. 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 Officer shall have a lien over the deposits until discharged by substitution, and in

case any Court takes cognizance then such Court, upon which the investigator shall hand over the deposit to such Court, which shall have a lien over it

up to the expiry of the period mentioned under S. 437-A CrPC, 1973, or 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 give security to the concerned Court(s) for attendance. Once the trial begins, the petitioner shall not, in any manner, try to delay

the trial. The petitioner undertakes to appear before the concerned Court, on the issuance of summons/warrants by such Court. The petitioner shall

attend the trial on each date, unless exempted, and in case of appeal, also promise to appear before the higher Court, in terms of Section 437-A CrPC.

b) The attesting officer shall mention on the reverse page of personal bonds, the permanent address of the petitioner along with the phone number(s),

WhatsApp number (if any), email (if any), and details of personal bank account(s) (if available).

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 methods, indecent language, inhuman treatment, etc.

d) The petitioner shall cooperate with the investigation at all further stages as may be required, and in the event of failure to do so, it will be open for

the prosecution to seek cancellation of the bail granted by the present order.

e) 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.

f) Once the trial begins, the petitioner shall not in any manner try to delay the trial. The petitioner undertakes to appear before the concerned Court, on

the issuance of summons/warrants by such Court. The petitioner shall attend the trial on each date, unless exempted.

g) In addition to standard modes of processing service of summons, the concerned Court may serve 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].

h) The concerned Court may also inform the accused about the issuance of bailable and non-bailable warrants through the modes mentioned above.

i) In the first instance, the Court shall issue summons and may send such summons through SMS/ WhatsApp message/ E-Mail.

j) In case the petitioner fails to appear before the Court on the specified date, then the concerned Court may issue bailable warrants, and to enable the

accused to know the date, the Court may, if it so desires, also inform the petitioner about such Bailable Warrants through SMS/ WhatsApp message/

E- Mail.

k) Finally, if the petitioner still fails to put in an appearance, then the concerned Court may issue Non-Bailable Warrants to procure the petitioner's

presence and send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper to achieve the purpose.

l) In case of non-appearance, 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, and also subject to the provisions of Sections 446 & 446-A of CrPC. The petitioner's failure to reimburse the State shall

entitle the trial Court to order the 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 spent to trace the petitioner alone and it relates to the exercise undertaken solely to arrest the petitioner in that FIR,

and during that voyage, the Police had not gone for any other purpose/function what so ever.

m) The petitioner shall intimate about the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, within

thirty days from such modification, to the Police Station of this FIR, and also to the concerned Court.

n) In case of violation of any of the conditions as stipulated in this order, the State/Public Prosecutor may apply for cancellation of bail of the

petitioner. Otherwise, the bail bonds shall continue to remain in force throughout the trial and also after that in terms of Section 437-A of the CrPC.

The learned Counsel representing the accused and the Officer in whose presence the petitioner puts signatures on personal bonds shall explain all

conditions of this bail order to the petitioner, in vernacular and if not feasible, in Hindi or English.

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 before 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 in accordance

with law.

18 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.

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

complainant and the victim, at the earliest. In case the victim notices stalking or any violation of this order, she may either inform the SHO of the

concerned Police Station or write to the Trial Court or even to this Court.

In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.

The petition stands allowed in the terms mentioned above. All pending applications, if any, stand closed.

Copy Dasti.