Jolly Bansal vs State of Himachal Pradesh

Piar Singh Rana, J.—Present petition filed u/s 438 of the Code of Criminal Procedure 1973 for grant of anticipatory bail in connection with case FIR No. 12 of 2013 dated 14.6.2014 registered under Sections 292, 465, 469 and 471 of the Indian Penal Code and u/s 6 of Indecent Representation of Women (Prohibition) Act, 1986 and u/s 66E and 67A of the Information Act 2000 at Police Station CID Bharari District Shimla HP.

It is pleaded that applicant is 50 years of age and is established member of the society and having deep roots in the society. It is further pleaded that applicant is a doctor by profession with specialization in field of Cardiology and is practising at Delhi Metro Heart Institute a well-known hospital for cardiac services across India. It is further pleaded that applicant is suffering from pre-frontal lobe-space occupying lesion with cancerous tumor growth in brain and had undergone surgery in the past and at present he is on prescription of oral chemotherapy and is continuously under medication of tablet used for oral chemotherapy i.e. ''Sutin''. It is further pleaded that on dated 14.6.2011 one person by name Hem Singh who was the cook of the then Telecom Minister Pundit Sukh Ram sent a complaint against one Jhonny Bansal to Police Station CID Bharari Shimla HP inter alia alleging that at around 6 AM he found one CD lying on the stairs leading to his house. It is further pleaded that he witnessed a person resembling with the face of Ex Central Minister Pundit Sukh Ram having sexual intercourse with some lady and expressed doubt that one person by name Jolly Bansal had made CD and circulated the same in the city in order to harm and destroy the image of Pundit Sukh Ram. It is further pleaded that on the complaint of Hem Singh FIR No. 12 of 2013 under Sections 292, 465, 469 and 471 IPC and u/s 6 of Indecent Representation of Women (Prohibition) Act 1986 and u/s 66E and 67A of the Information Act 2000 was registered at Police Station CID Bharari Shimla HP against applicant. It is further pleaded that in the month of August 2013 investigating agency at Police Station CID Bharari Shimla HP called the applicant at Himachal Bhawan Mandi House New Delhi and inquired about the alleged incident dated 14.6.2013. It is further pleaded that on dated 20.10.2013 a notice was issued by Police Station CID Bharari Shimla HP to applicant directing him to appear before them. It is further pleaded that on dated 22.10.2013 being aggrieved by notice dated 20.10.2013 and in apprehension of arrest applicant filed anticipatory bail application u/s 438 Cr.PC before learned Sessions Judge Saket Court New Delhi. It is further pleaded that on 23.10.2013 learned Sessions Judge Saket Court New Delhi granted interim bail to applicant. It is further pleaded that on dated 29.10.2013 a certificate was issued by SHO Police Station CID Bharari Shimla stating that applicant along with his Advocate Sh Rajesh Kaushik attended the office. It is further pleaded that on dated 8.11.2013 learned Sessions Judge Saket Court New Delhi dismissed the anticipatory bail application of the applicant. It is further pleaded that on dated 18.11.2013 applicant filed an application u/s 438 Cr.PC for grant of anticipatory bail before learned Sessions Judge Shimla. It is further pleaded that on dated 22.11.2013 applicant was granted interim pre-arrest bail in FIR No. 12 of 2013 dated 14.6.2014. It is further pleaded that on dated 28.11.2013 bail application of the applicant was dismissed as withdrawn as learned Advocate appearing on behalf of the applicant made statement that learned Sessions Judge at Shimla has no territorial jurisdiction to entertain the bail application of applicant as the alleged incident pertains to District Mandi. It is further pleaded that on dated 14.4.2014 SHO Police Station CID Bharari Shimla made application for issuance of warrant of arrest of applicant before learned Chief Judicial Magistrate Mandi. It is further pleaded that on dated 19.4.2014 the learned Chief Judicial Magistrate issued warrant of arrest against the applicant. It is further pleaded that on dated 12.5.2014 a proclamation u/s 82 Cr.PC was issued against the applicant by learned Chief Judicial Magistrate Mandi and the applicant was summoned to be present on dated 10.7.2014. It is further pleaded that applicant had deep roots in the society and there is no likely hood of applicant running from trial. It is further pleaded that applicant is innocent and he has been falsely implicated in the present case. It is further pleaded that applicant was a personal Physician of Pundit Sukh Ram and the matter was covered by both electronic and print media and is in knowledge of Pundit Sukh Ram. It is further pleaded that applicant had already joined investigation in November 2013 and always co-operate with the investigating agency and further undertakes to fully co-operate with investigation. It is further pleaded that applicant had no direct and indirect concern with manufacturing and distribution of CD. It is further pleaded that applicant has not committed any offence and has been falsely implicated in present case. It is further pleaded that all the offences as alleged in FIR No. 12 of 2013 are bailable offences except offence u/s 67A of Information Technology Act 2000. Prayer for acceptance of bail application sought.

Per contra reply filed on behalf of non-applicant pleaded therein that Sh Hem Singh son of Sh. Panju Ram resident of House No. 347/215 Sain Mohalla Mandi District Mandi HP has filed complaint that on dated 14.6.2013 at about 6 AM when he awoken he saw one CD was lying inside his room and he checked the CD upon computer. There is further recital in police report that in CD Pundit Sukh Ram Ex Central Minister was shown performing sexual intercourse with woman in the video film. There is further recital in police report that thereafter CD was circulated in the city also. There is further recital in police report that CD was circulated in the city in order to damage the reputation of Ex Central Minister Pundit Sukh Ram. There is further recital in police report that during analysis it was observed that Sh Lawan Thakur who is RTI worker told the citizen of Mandi on dated 14.5.2013 that he had obtained 200 obscene CD against Pundit Sukh Ram Ex Central Minister and he would distribute the same in the city. There is further recital in police report that after obtaining search warrant from learned Chief Judicial Magistrate Mandi, office, hotel and residence of Lawan Thakur were searched. There is further recital in police report that two CDs were recovered on 12.6.2013 and hard disk of computer and laptop also recovered which were took into possession by police officials. There is further recital in police report that Jolly Bansal and Lawan Thakur are familiar to each other. There is further recital in police report that after investigation it was pointed out that applicant Jolly Bansal has sent E-mail ID to Lawan Thakur on 12.5.2013 with the words that Pundit Sukh Ram has been enjoying with females in the age group of 20 and 30 years at India Habitat Center regularly after the death of his wife and the same could be easily seen in the visual recording. There is further recital in police report that E-mail ID [email protected] was sent from E-mail ID [email protected] and the number of E-Mail ID was IP Internet Protocol Address 122.176.209.93 dated 13.5.2013 at 02:19:14 IST. The creation and detail of ISP was obtained from Internet Service Provider and user ID was 01143595612 Modem MAC 001e40f04b91. There is further recital in police report that on dated 16.6.2013 two obscene CD were recovered from the office of Hotel Iron which was sent by applicant Jolly Bansal. There is further recital in police report that applicant Jolly Bansal filed anticipatory bail application on dated 23.10.2013 before learned Additional Sessions Judge East Saket Court New Delhi. There is further recital in police report that applicant has also produced new laptop. There is further recital in police report that thereafter applicant filed anticipatory bail application before learned Sessions Judge Shimla which was withdrawn on dated 28.11.2013. There is further recital in police report that proceedings u/s 82 Cr.PC initiated against applicant and thereafter applicant filed anticipatory bail application before H.P. High Court. There is further recital in police report that applicant did not comply the direction of interim bail granted by Hon''ble High Court of HP and did not join investigation of present case. There is further recital in police report that two FIR i.e. 56 of 1995 dated 9.2.2002 under Sections 302 and 201 IPC was registered against applicant in Police Station Connaught Place Delhi and another FIR No. 187 of 2012 dated 24.12.2012 was registered against applicant u/s 66A of IT Act and u/s 509 IPC at Police Station Greater Kailash Delhi. There is further recital in police report that custodial interrogation of applicant is essential in present case in order to ascertain the factum of preparation of CD. There is further recital in police report that applicant is not co-operating with the investigation of present case. There is further recital in police report that still hard disk of computer/laptop is to be recovered from applicant. There is further recital in police report that mobile phone is also still to be recovered from applicant from which applicant has contacted with Lawan Thakur. There is further recital in police report that custodial interrogation of applicant is essential in the present case. Prayer for dismissal of bail application sought.

Court heard learned Advocate appearing on behalf of applicant and learned Advocate General appearing on behalf of State and also perused record carefully.

Submission of learned Advocate appearing on behalf of the applicant that applicant is innocent and he has been falsely implicated in the present case cannot be decided at this stage till the criminal case is not disposed of finally by learned trial Court after giving due opportunity of hearing to both the parties to lead evidence in support of their case.

Another submission of learned Advocate appearing on behalf of applicant that applicant is suffering from pre-frontal lobe-space occupying lesion with cancerous tumor growth in brain and had undergone surgery in the past and at present he is on prescription of oral chemotherapy and is continuously under medication of tablet used for oral chemotherapy by name ''Sutin'' and on this ground anticipatory bail application be granted is rejected being devoid of any force for the reason hereinafter mentioned. It is well settled law that at the time of granting bail following factors are considered (i) Nature and seriousness of offence (ii) The character of the evidence (iii) Circumstances which are peculiar to the accused (iv) Possibility of the presence of the accused at the trial or investigation (v) Reasonable apprehension of witnesses being tampered with (vi) The larger interests of the public or the State. See Gurcharan Singh and Others Vs. State (Delhi Administration), . Also see The State Vs. Captain Jagjit Singh, . In the present case it is prima facie proved on record that applicant did not join investigation and proceedings u/s 82 Cr.PC initiated against applicant. It is prima facie proved on record that on dated 12.05.2014 learned Chief Judicial Magistrate Mandi issued proclamation u/s 82 Cr.PC to appear before Court on 10.7.2014. Court is of the opinion that applicant is not entitled for relief of anticipatory bail due to his own act and conduct and due to the fact that proceedings u/s 82 Cr.PC initiated against applicant by learned Chief Judicial Magistrate for declaring him as proclaimed offender. It is held that custodial interrogation of applicant is essential in present case in order to ascertain the preparation of CD and in order to ascertain the fact that how the copy of CD transmitted to Mandi. Custodial interrogation of applicant is also essential in present case in order to recover original hard disk of computer and laptop through which obscene recording was conducted and transmitted. Custodial interrogation is essential in present case in order to recover mobile phone through which SMS were sent to co-accused Lawan Thakur. Custodial interrogation of applicant is essential in present case in order to ascertain whether obscene video/CD were prepared in the presence of applicant or not.

It is held that it is not expedient in the ends of justice to grant anticipatory bail to applicant as the proceedings initiated against him u/s 82 of the Code of Criminal Procedure by learned Chief Judicial Magistrate Mandi HP. It is ordered that after arrest the Investigating Agency will provide proper and adequate medical treatment to applicant. It is well settled law that even accused in custody is legally entitled for proper medical treatment. In view of the above stated fact anticipatory bail application filed by applicant u/s 438 of the Code of Criminal Procedure 1973 is rejected. Observations will not effect merits of the case in any manner. All pending application(s) if any are also disposed of.