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Judgment
Heard Shri N. Ibotombi, the learned Senior Advocate appearing for the applicant/ petitioner; Shri R.S. Reisang, the learned Senior Government Advocate (PP) and Shri Kh. Mani, the learned Senior Advocate appearing for the victim.
This is an application filed by the petitioner under Section 438 of the Code of Criminal Procedure, 1973 praying for issuing a direction to the Investigating Officer for releasing him on bail in the event of his being arrested in connection with FIR Case No. 7(5)2017 WPS u/s 376/493/494/34 IPC & 66E I.T. Act.
1. The facts of the case as narrated in the application, are that on 12-05-2017 one Khumukcham Nickita Devi (referred to hereinafter as "the Victim") of Khagempalli Panthak, Bon, Imphal West filed a complaint petition against the petitioner and two others before the Chief Judicial Magistrate, Imphal West on the allegation that the petitioner committed certain sexual acts against her in the year 2015 and 2016 and on receipt thereof, the Chief Judicial Magistrate, Imphal West forwarded the same to the Officer-in-Charge, Women P.S., Imphal West for investigation under Section 156(3) Cr.P.C. for which a case under FIR No. 7(5)2017 WPS u/s 376/493/494/34 IPC & 66E I.T. Act. was registered by them. 3.2. The backgrounds on the basis of which the said complaint petition was filed by the victim, according to the petitioner, are that the victim became acquainted and friendly with the petitioner through the social network which developed a platonic relationship between them for some time and thereafter, they slowly drifted apart owing to certain differences. The victim could not digest the idea of separation and kept on persisting for maintaining the relationship. On 04-11-2016 the petitioner married with one Narmada Hidangmayum and the victim, upon hearing the news of the marriage, came to the residential quarter of the petitioner on 09-11-2016 and threatened to commit suicide if she was forcibly sent away from the quarter. The efforts made by the petitioner and the members of his family to convince her to refrain from taking such a drastic step, felt on her deaf ears and accordingly, the members of victim''s family were informed over the phone and since they did not turn up till late night, the family members of the petitioner were compelled to allow her to stay the night but taking advantage of the situation, the victim claimed that she eloped with the petitioner on 10-11-2016.
3.3. On 22-02-2017 the victim filed a complaint before the Manipur State Commission for Women (referred to hereinafter as "the Hon''ble Commission") with regard to the same matter and as the allegations levelled against the petitioner were false and baseless, the Hon''ble Commission closed the case on the condition that the party should meet on 10-05-2017. Being not satisfied with the findings of the Hon''ble Commission, the victim filed another complaint to the Hon''ble Chief Minister, Manipur on 24-04-2017 by adding certain allegations as regards the offences viz. rape, taking indecent pictures, blackmailing to upload obscene pictures, threat, etc. which were not mentioned in the earlier petition filed before the Hon''ble Commission. The meeting scheduled to be held on 10-05-2017 as directed by the Hon''ble Commission, was differed due to certain exigencies of its Chairman.
3.4. The petitioner filed an application being Cril. (A.B) Case No. 87 of 2017 before the Court of Sessions Judge, Imphal West praying for grant of pre-arrest bail which was rejected by the Court vide its order dated 24-05-2017 without considering the materials on record. After the said bail application being rejected by the Court of Sessions Judge, Imphal West, a wireless message dated 27-05-2017 was issued to the petitioner by the Superintendent of Police, Imphal West through the Director (MAHUD), Government of Manipur directing him to appear before the Officer-in-charge on 29-05-2017 for the purpose of examination and recording his statement in connection with the said FIR. As the petitioner was on leave and was out of station w.e.f. 23-05-2017 in connection with his medical treatment, he had no information or knowledge about the said message and accordingly, his father vide his application dated 29-05-2017 informed the Officer-in-charge that his son was out of station and requested him to fix another date preferably in the 2nd week of June, 2017. In spite of the said application being submitted by his father, the Officer-in-charge was hounding the residence and quarter of the petitioner with an ulterior motive at the instigation of the victim and her well wishers including the high police officials. Thus, the petitioner being apprehensive of his being arrested by the police, filed the instant application on the inter-alia grounds that the petitioner had been falsely implicated by the victim; that the petitioner being a respectable government servant, he is deeply rooted in the society having established good reputation and reliability in his locality; the question of his absconding from the lawful authority in the event of his being released on pre-arrest bail, does not arise; that the instant application is being filed not because of the fact that he has a guilty mind but to prevent unnecessary and unwarranted harassment in the hands of the police; that the petitioner is always ready and willing to cooperate with the Investigating Officer as and when required by her/ him and that in the event of his application being rejected by this Court, it is likely to cause irreparable injury and damage to the livelihood, standing in society of the petitioner which cannot be compensated in terms of money and moreover, the purpose of filing this petition is likely to be defeated.
3.5. During the pendency of this application, the petitioner filed an additional affidavit stating therein that the petitioner joined the investigation and was fully cooperating with the Investigating Agency and as there was no possibility of his absconding, his custodial interrogation was not required at all. It is further stated that the Hon''ble Commission gave its findings dated 03-07-2017 to the effect that since the victim wanted to live with the petitioner as his wife and the petitioner was ready to marry her as his second wife to settle the matter peacefully, the Hon''ble Commission further observed that there was no requirement for further hearing of the case and accordingly, the case was closed.
The victim filed a reply to said additional affidavit filed by the petitioner contending inter-alia that the additional affidavit is not maintainable as the petitioner has not come before his court with clean hands. It is also stated in the said reply that as the petitioner has not joined the investigation, his custodial investigation is required by the police. The petitioner did join the investigation only after the interim order being passed by this court in his favour. It is further stated that the Chief Judicial Magistrate, Imphal West had already passed an order dated 31-05-2017 by which a warrant of arrest had been issued against the petitioner. No any agreement was entered into between the victim and the petitioner before the Hon''ble Commission and the victim had no any idea of such an order being passed by the Hon''ble Commission and came to know about it only when a copy thereof was filed before this court by the petitioner along with his additional affidavit. Since the order passed by the Chief Judicial Magistrate is still in operation, the instant application filed by the petitioner is not maintainable and is liable to be rejected.
Section 438 of the Cr.P.C is a provision by which any person who has reason to believe that he may be arrested on accusing of having committed a non-bailable offence, may apply to the High Court or the court of Session for direction that in the event of his being arrested, he shall be released on bail. Before granting the direction, the court may consider the factors as mentioned therein. It is well settled that since the power conferred upon the court under this provision, is a discretionary power, the same should be exercised with care and caution. The amplitude of judicial discretion given by Section 438 Cr.P.C. came to be examined by a bench of Five Judges of the Hon''ble Supreme Court in Gurubaksh Singh Sibbia Vs. State of Punjab, reported in (1980) 2 SCC 565, which propounded certain principles. In a recent case namely Siddharam Satlingappa Mhetre Vs. State of Maharastra & ors., reported in (2011) 1 SCC 694, the Hon''ble Supreme Court, after analysing various previous judgments, has enumerated factors and parameters that can be taken into consideration by the courts while dealing with applications under Section 438 of Cr.P.C, the relevant para of which is reproduced herein below:
"112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused''s likelihood to repeat similar or other offences;
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
However, the Hon''ble Supreme Court has observed that these factors and parameters are not exhaustive but only illustrative in nature. The reason behind this observation of the Hon''ble Supreme Court appears to be that in a criminal case, the findings are to be arrived at only on the basis of the evidence available on record which may differ from case to case. The Hon''ble Supreme Court expressed its view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with the legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case.
During the course of hearing, Shri N.Ibotombi, the learned Senior Advocate appearing for the petitioner vehemently has submitted that the petitioner being a respectable government servant, he is deeply rooted in the society having established good reputation and reliability in his locality. The petitioner has extended full co-operation in the investigation and he is always ready and willing to co-operate with the Investigating Officer as and when required by him and therefore, the question of his absconding will not arise at all. In support of his contention, he has placed reliance in State of Rajaasthan, Jaipur Vs. Balchand Alias Baliay, reported in (1977) 4 SCC 308 wherein the petitioner moved for bail having surrendered after leave was granted to the State to file an appeal against the acquittal by the High Court, the Hon''ble Supreme Court held:
"2. 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. We do not intend to be exhaustive but only illustrative."
He has place further reliance in Sanjay Chandra Vs. Central Bureau of Investigation, reported in (2012) 1 SCC 40 wherein the allegations against the appellants were of criminal conspiracy for providing telecom services to otherwise an ineligible company to get UAS licences, the Hon''ble Supreme Court held:
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson."
Having kept in mind the factors and parameters as aforesaid and laid down by the Hon''ble Supreme Court, this court proposes to go into the materials available in respect of this case to find out if there is any prima facie case in favour of the petitioner so that an anticipatory bail can be granted in his favour. The allegations of the victim are inter-alia that taking advantage of her friendship, on 17-03-2015 the petitioner took her to a restaurant, Marinda Cafe near Maiba Lokpa Ching and had forcibly sexual intercourse and took photographs of the sexual acts without her consent. The petitioner threatened her not to disclose about the rape being committed by him with the temptation that he would marry her at the earliest possible date, because of which she could not disclose about the sexual exploitation to anyone, although it disturbed her mind without knowing as to what she should do at that juncture. On 12-08-2015 the petitioner, on the pretext of celebrating his birth day, called her out and took her to a restaurant at Utlou, Heibimakhong, Nambol and rape her again by threatening that he would upload the obscene photographs, if objected to it by her. In the same manner, the petitioner raped her on 21-10-2016 at Universal Caf?, Lamshang but she being a girl and because of the threat laid upon her by the petitioner, did not disclose to anyone. The further allegation of the victim is that on 09-11-2016 the petitioner eloped her and as per the customary practice prevailing amongst Hindus in Manipur, on the next day "Nupi Haidokpa" and "Nupi Hanba" were performed and accordingly, the victim was brought back to her parental house by the members of the petitioner''s family along with some women folk. On the basis of the above allegations, a case under FIR No. 7(5)2017 WPS u/s 376/493/494/34 IPC & 66E I.T. Act. has been registered against the petitioner. It is not in dispute that the petitioner is a Manipur Civil Services (MCS) Officer presently working as the District Co-ordinator (MAHUD), Government of Manipur and he became acquainted and friendly with the victim through the social network as aforesaid. During the course of the investigation conducted so far, the statements of the victim and accused persons including the statement of victim under Section 164 of Cr.P.C, were recorded thereby revealing that the petitioner has admitted to have sexual intercourse with the victim, as is evident from the order dated 24-05-2017 passed by the Court of Sessions Judge which appears to have not been challenged by the petitioner before any appropriate forum. The findings of the Court of Sessions Judge appear to be based on materials including the statements made by the petitioner before the Hon''ble Commission as well as before the Doctor. On examination of the victim by the Doctor, the finding as regards the hymen is "old tear at 7 o''clock position" and the opinion of the Doctor as regards the signs suggestive of recent penetration of vagina is "sign of defloration is present". It is no doubt true that the truth will come out after the trial but since the petitioner has admitted to have sexual intercourse with the victim, the offences alleged to have been committed by the petitioner are serious one which require thorough investigation. The only defence of the petitioner is that he had sexual intercourse with the victim only with her consent with no force being used against her. In view of this, according to the Investigating Officer, the further investigation is required on the issue as to whether the victim had consented to having sexual acts with the petitioner or not. On perusal of the case diary, it is seen that the petitioner did not co-operate with the investigation before the interim pre-arrest bail being granted and after the application for grant of anticipatory bail being rejected by the Court of Sessions Judge which compelled the Investigating Officer to approach the Chief Judicial Magistrate for issuing a non-bailable warrant of arrest. That is how the Chief Judicial Magistrate passed an order dated 31-05-2017 issuing non-bailable warrant of arrest against the petitioner. It may be noted that the idea of performing customary practices is that since the members of both the families have agreed that the marriage be solemnised in accordance with customary norms, a consensus date be fixed and accordingly, appropriate steps be taken by both the families to complete the performance of the marriage. While the elopement is denied by the petitioner, the performance of the said "Nupi Haidokpa" and "Nupi Hanba" is not denied at all nor has he objected to the performance of the customary practice. Some of the other circumstances which need to be taken into consideration towards the aforesaid issue, are that in a country like ours, a young girl may not agree to have sexual intercourse voluntarily with a man without a promise of marrying her or without any other cause except when she is habituated in indulging in such sexual acts. There appears to be no allegation that the victim is in the habit of indulging in such sexual acts. The courage as exhibited by the victim making statements before the Hon''ble Commission as well as under Section 164 of Cr.P.C alleging that the petitioner had raped her, needs attention and can, in other words, be considered to be inviting upon herself a social stigma. This sort of statement will continue to remain in the mind of the public for all the years to come whether the trial leads to conviction or not. It is hard to believe that the victim will take such a drastic stand, which appears to be under genuine compulsion, without even a thread of truth in it. At the same time, the petitioner being an educated and a responsible officer, is not expected to behave in this fashion and to take it very lightly as if he has done nothing wrong.
Be that as it may, Shri Kh. Mani, Senior Advocate appearing for the victim, assisting the prosecution, has submitted that the instant application is not maintainable and is liable to be rejected for the reason that before the instant application is filed before this court, the Chief Judicial Magistrate while disposing of the Crl. Misc. Case No.116 of 2017, had passed an order dated 31-05-2017 issuing a non-bailable warrant of arrest against the petitioner. On 05-06-2017 when the instant application was taken up for consideration, this court, without knowing the aforesaid fact, passed an interim order to the effect that in event of the arrest of the petitioner in connection with the aforesaid FIR, he may be released on bail on furnishing a bond of Rs. 50,000/- with surety like amount. The contention of the learned senior advocate appearing for the victim has some force, even though he has not cited any decision of the Hon''ble Supreme Court or any other High Court to substantiate his contention. Any order passed by a competent court will have to be executed and in view of the interim order dated 05-06-2017 passed by this court, the order of warrant of arrest has been kept in abeyance. Since the order dated 31-05-2017 passed by the Chief Judicial Magistrate appears to have not been challenged by the petitioner, the same is in operation and is bound to be executed at some point of time but for the order dated 05-06-2017 passed by this court, the same is being kept in abeyance. Section 70 of the Cr.P.C is relevant in this regard and Section 70(2) provides that a warrant of arrest remains in force until it is cancelled by the court which issued it or until it is executed. The legality and correctness of the order dated 31-05-2017 passed by the Chief Judicial Magistrate is not the subject-matter in issue before this court and this court not being the appellate court against the said order dated 31-05-2017, cannot interfere with it. The short question that arises for consideration by this court, is as to whether the instant application is maintainable in the hands of the petitioner or not, when a warrant of arrest has already been issued by the competent court namely the Chief Judicial Magistrate. The answer appears to be "no" for the reason that anticipatory bail cannot be granted in a case where the Magistrate has issued a non-bailable warrant under Section 70 of Cr.P.C against the applicant/ petitioner. In other words, the petitioner can no longer be said to have the reason to believe that he may be arrested by the police. In fact, he is required to be arrested by the police towards execution of the said non-bailable warrant of arrest and any order passed by this court granting pre-arrest bail to the petitioner in the present facts and circumstances, will render the order dated 31-05-2017 passed by the Chief Judicial Magistrate otiose and redundant. The only proper remedy available to the petitioner is either to go before the same court for cancellation of the of the said warrant of arrest issued under Section 70(2) of Cr.P.C or to approach the High Court under Section 482 Cr.P.C for setting aside it. There can be no dispute about the law laid down by the Hon''ble Supreme Court in the said cases relied upon by the learned counsel appearing for the petitioner but since the facts of the present case are not similar to that of the said cases, the said law laid down by the Hon''ble Supreme Court will have no application to the facts of the present case.
For the reasons stated hereinabove, the application for grant of pre-arrest bail fails and is, accordingly, dismissed and the interim order dated 05-06-2017 passed by this court shall stand vacated.