Gulshan Kumar vs State Of H.P

Anoop Chitkara, J

An Indian Army soldier, who is apprehending arrest for establishing sexual relations with a married lady aged 28 years, under the false promise of

marrying her, came up before this Court under Section 438 CrPC, seeking anticipatory bail.

Earlier, the petitioner had filed the following bail petition:

(a) Bail Application No.28-D/XXII/2021 filed before learned Additional Sessions Judge-III, Kangra at Dharamshala, District Kangra, H.P., dismissed

on 1.4.2021.

The bail petition is silent about criminal history, however, Mr. Hitesh Chopra, Ld. 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 19.2.2021, the complainant made a complaint to the Station House Officer, Police Station

Damtal (Himachal Pradesh) against accused Gulshan Kumar, S/o Bodh Raj, R/o Village Chann Arorian Tehsil and District Kathua for enticing and

committing fraud with her on the pretext of false promise to marry and used her for fulfilling sexual lust which resultantly led to immense mental

trauma and depression to her and also to her private life. The complainant submitted as under:

(i) That the complainant lady was married with one Gulshan Kumar, S/o Nagar Mal, R/o village Chack Sajjan Govindsar Kathua and she herself is the

R/o village Ramkalwan, P.O Bamiyal, Tehsil and District Pathankot and was living happily with her husband at her matrimonial home.

(ii) That on one occasion, complainant lady met with her aunt’s daughter who was already in contact with accused Gulshan Kumar, S/o Bodh Raj

and this thing was never disclosed to the complainant lady and both of them visited the house of accused where accused Gulshan met with

complainant and even asked her to provide her cell number but the complainant refused to provide.

(iii) That after few days accused made call to complainant’s aunt’s daughter and requested her that he wanted to talk to the complainant.

Thereafter a long conversation was made between the complainant and the accused when the accused pressurized her to meet him personally.

(iv) That the complainant lady came under the influence of accused person who is a government employee in defence service and earned handsome

salary and the accused proposed the lady for marriage and on this complainant told the accused that she is already a married lady and cannot marry

again but the accused who was mischievous, fraudulent and dishonest person tried every possible effort to persuade the complainant and even provide

a new SIM card number to the complainant forcibly with the request that he cannot live without her.

(v) That on 15th June, 2018 accused started calling her on the mobile number purchased by him and after which complainant came into the influence

of accused who was very clever and mischievous person.

(vi) That accused firstly called the complainant when he came on leave in the month of October/November 2018 and in the meanwhile accused

showed to the complainant the dreams of husband and wife and said “hum dono jaldi hi ek ho jayenge â€" apko duniya ki har khushi dunga main.â€

The illiterate complainant lady who had never come outside of her home without any reason was got trapped into the sweet words of accused and

resultantly went with him to Hotel Exotica, Near Durga Mata Mandir, Hilltop, Damtal where he hired a room and indulged into physical relations with

complainant.

(vii) That accused came to this above mentioned hotel with complainant two three times for fulfilling his sexual desires and nothing else.

(viii) That just to defraud and deceive the complainant, accused asked her to first take divorce from her husband so that they can solemnize marriage

without any hurdle. The complainant lady who was unaware of the evil motive of accused, started pressurizing her husband Gulshan Kumar, S/0

Nagar Mal for divorce and resultantly both of them jointly filed a mutual divorce petition u/s 13-B of Hindu Marriage Act before the family Court at

Pathankot vide No.231 of 30.5.2019 and the copy of same is enclosed herewith as annexure-A.

(ix) That the complainant even showed this copy to accused and told him that now she is ready for marriage. The accused again asked the victim to

meet him in the same hotel and did the wrong act with her.

(x) That when the mutual divorce petition got decided on 4.12.2019, the complainant called the accused many times to inform him, but the mobile

number of accused remained always switched off and even sometimes not reachable.

(xi) That the accused even changed his mobile number just to defraud the complainant.

(xii) That on one occasion when complainant again tried accused cell number he said ‘maine apko use karna tha kar liya. Maine tere sath koi shadi

nhi krni ab tuje jo karna ha kar.’ Upon this complainant got shocked and went into mental trauma and went to the house of accused where his

father asked the complainant to take some money and forget his son.

(xiii) That after this, the complainant had left with no other option except to approach the concerned police authorities.

(xiv) That complainant filed a complaint dated 19.2.2020 to the concerned SSP, Pathankot as well as to the DGP Punjab, Chandigarh, where upon

pursuing the same, they declined to take action because of the fact that incident/cause of action has occurred in the territory/jurisdiction of Damtal

Police, Himachal Pradesh, copies of these complaints are enclosed herewith as Annexure B1 and B2.

(xv) That the life of complainant has now become hell as the accused has committed fraud and rape upon the complainant on the pretext of false

promise to marry and the complainant has gone into depression. Her life has been destroyed and accused is living happily, even her earlier husband not

ready to take her back. The complaint was signed by the victim-complainant. Based on these allegations, the Police registered the FIR mentioned

above.

(xvi) After that on 20.3.2021, the Investigator produced the victim before Judicial Magistrate 1st Class, Indora at Kangra where she made her

statement under Section 164 Cr.PC. In the said statement, she re-iterated the allegations made by her in the complaint. She further stated that the

accused told her that since she did not belong to his caste, as such, his family members would not agree for their wedding.

(xvii) After this, the Investigator came to know that the victim belonged to scheduled caste and consequently obtained her caste certificate.

Thereupon, offence punishable under Section 3(2)va of SC&SCT Act were added. The Investigator also produced the victim for medical examination

where the swabs were obtained from the privates of the victim for scientific comparison. However, the Laboratory did not find any material to

connect the accused.

Ld. Counsel for the petitioner contends that during interim bail, the petitioner joined the investigation, and custodial investigation would serve no

purpose whatsoever. The incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

While opposing the bail, the alternative contention on behalf of the State is that if this Court is inclined to grant bail, such a bond must be subject to

very stringent conditions.

REASONING:

Along with the status report, the Investigator also attached a copy of the victim's statement recorded under section 164 CrPC. The law is no more

Res Integra that under Section 207 CrPC, the accused is entitled to the copy of the statement under Section 164 CrPC only after the concerned Court

takes cognizance of the offence. Still, there is no restriction or bar on an investigating agency to bring the statements recorded under Section 164

CrPC to the notice of the concerned Court by handing over its copies or placing them on record along with the status report; however, despite this, the

accused cannot ask for it. In Miss ""A"" v. State of Uttar Pradesh, (Cr. A 659 of 2020, decided on Oct 8, 2020), a three-judge bench of Hon'ble

Supreme Court holds,

[15]. …It is only after taking of the cognizance and issuance of process that the accused is entitled, in terms of Sections 207 and 208 of the Code, to

copies of the documents referred to in said provisions. The filing of the charge-sheet by itself, does not entitle an accused to copies of any of the

relevant documents including statement under Section 164 of the Code, unless the stages indicated above are undertaken.

[16]. Thus, merely because the charge-sheet was filed by the time the High Court had passed the order in the present matter, did not entitle

Respondent No.2 to a copy of the statement under Section 164 of the Code.

[17]. That apart, the reason that weighed with the High Court in placing reliance on the decision of the Division Bench of the High Court rendered in

the year 2012 which was before the directions were passed by this Court in Shivanna [State of Karnataka by Nonavinakere Police v. Shivanna alias

Tarkari Shivanna, (2014) 8 SCC 913] was completely incorrect. As logical extension of the directions passed by this Court, no person is entitled to a

copy of statement recorded under Section 164 of the Code till the appropriate orders are passed by the court after the charge-sheet is filed. The right

to receive a copy of such statement will arise only after cognizance is taken and at the stage contemplated by Sections 207 and 208 of the Code and

not before.

The petitioner filed this petition under Section 438 Cr.PC. Although the petition is silent that why the petition was not filed as per the procedure

settled for offences committed under Section SC&ST Act, but the petition reveals that it was filed on 7.4.2021. After that, the Investigator filed a

status report on 28.4.2021. A perusal of the status report further reveals that the offences under SCSTPOA were not added in the FIR. It was in the

later status report that offences were added under Section SCSTPOA i.e. after the filing of the bail petition.

A perusal of the complaint reveals that the victim was aged 28 years and was a married lady. In her statement under Section 164 Cr.PC, she did

mention that accused had told her that his family members will not agree for wedding because of caste, but she never stated that accused had any

objection regarding her caste. If the family members of the accused are racist then accused cannot be held responsible for their biases.

In Prathvi Raj v. Union of India, AIR 2020 SC 1036, a three-Judges Bench of Supreme Court read down S. 18 by declaring as follows:

[10]. Concerning the applicability of provisions of section 438 Cr.PC, it shall not apply to the cases under Act of 1989. However, if the complaint does

not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by section 18 and 18A (i) shall not apply.

A perusal of the allegations does not call for pre-trial incarceration. It would be travesty of justice if accused who is working in Indian Army, is

denied bail on these allegations made by a married lady aged 28 years.

A Co-ordinate Bench of this Court granted interim protection to the bail petitioner vide order dated 9.4.2021. After that, as per the submissions

made on behalf of the petitioner he had joined investigation as and when he was called upon to do so. The State also does not object to such

submission. Now, the investigation is complete.

While recording statement of the victim under Section 164 Cr.P/C, the victim re-iterated the allegations made by her in the written complaint.

However, she further explained that initially when she had visited the accused home there he had established coitus with her. She also made addition

that the accused told her that since she belongs to a different caste, as such, his family members would not agree for their marriage.

The limited question before this Court is to grant bail or not. These observations nowhere suggest his innocence or lesser role.Without commenting

on the case's merits and the circumstances peculiar to this case, the petitioner makes a case for release on bail.

The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing 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. In Sumit Mehta v. State of N.C.T. of Delhi, (2013)15 SCC

570, Para 11, Supreme Court holds that while exercising power Under Section 438 of the Code, the Court is duty-bound to strike a balance between

the individual's right to personal freedom and the right of investigation of the police. While exercising utmost restraint, the Court can impose conditions

countenancing its object as permissible under the law to ensure an uninterrupted and unhampered investigation.

Given the above reasoning, coupled with the peculiar facts and circumstances of the case, 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. Ten thousand (INR 10,000/-),

and shall furnish one surety of Rs. Twenty-five thousand (INR 25,000/-) each, to the satisfaction of the Investigator. Before accepting the sureties,

the Attesting Officer 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 a personal bond of Rs. Ten thousand (INR 10,000/-), and fixed deposit(s) for Rs. Ten

thousand only (INR 10,000/-), made in favour of Chief Judicial Magistrate of the concerned district.

a) The arresting Officer shall give a time of ten working days to enable the accused to prepare a fixed deposit.

b) 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.

c) Such a fixed deposit need not necessarily be made from the account of the petitioner and need not be a single fixed deposit.

d) 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.

e) 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.

f) 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.

g) After that, the petitioner shall hand over such proof along with endorsement to the concerned Court.

h) 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.

i) 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 bond 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 in 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.

The petitioner should stay far away from the place of occurrence while on bail. Thus, the petitioner shall not enter within a radius of

one kilometre from her house. This Court is imposing this condition to rule out any attempt by the accused to incapacitate, influence, or to cause

any discomfort to the victim. Reference be made to Vikram Singh v Central Bureau of Investigation, 2018 All SCR (Crl.) 458); and Aparna Bhatt v.

State of Madhya Pradesh, 2021 SCC Online SC 230.

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, it shall always be permissible to the respondent to apply for cancellation of this bail. It shall further be open for

any investigating agency to bring it to the notice of the Court seized of the subsequent application that the accused was earlier cautioned not to indulge

in criminal activities. 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.

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, and not later than two days. In case the victim notices stalking or any violation

of this order, she may either inform the SHO of the concerned Police Station or the Trial Court or even to this Court.

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.

There would be no need for a certified copy of this order for furnishing bonds, and any Advocate for the Petitioner can download this

order along with case status from the official web page of this Court and attest it to be a true copy. In case the attesting officer wants to

verify the authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.

In the facts and circumstances peculiar to this case, the petition is allowed in the terms mentioned above.

Copy Dasti.