Allowed

Swarit Malhotra v. State of Hp

Himachal Pradesh HC8 Sept 2022CRMPM/1958/2022

Case brief

AI extract

What is this about?

High Court allowed Criminal Misc. Petition 1958/2022 granting regular bail to petitioner accused in rape and threatening offences, holding that bail is rule and cancellation of prior bail and LDRC allegations required corroboration for denial of liberty.

What did the court decide?

Petitioner ordered released on bail in FIR No.09.2022 subject to personal bond of Rs.50,000/ with surety and conditions against tampering, leaving country, and delaying trial.

Swarit Malhotra Vs State of Hp — Bail and Remand | Himachal Pradesh HC (2022)

¶1

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA ON THE 8^th DAY OF SEPTEMBER, 2022.

¶2

BEFORE

¶3

HON'BLE MR. JUSTICE SATYEN VAIDYA

¶4

CRIMINAL MISC. PETITION (MAIN) No. 1958 OF 2022.

¶5

Between:-

¶6

SH. SWARIT MALHOTRA S/O SH. VINAY MALHOTRA, AGED ABOUT 37 YEARS, R/O HOUSE NO.276, WARD NO.6, KOTWALI, BAZAAR, DHARAMSHALA, DISTRICT KANGRA, HP

¶7

….PETITIONER.

¶8

(BY MR V.S. CHAUHAN, SENIOR ADVOCATE WITH MR. AJAY SINGH KASHYAP, ADVOCATE)

¶9

AND

¶10

STATE OF HIMACHAL PRADESH

¶11

….RESPONDENT.

¶12

(BY MR. DESH RAJ THAKUR, ADDL. ADVOCATE GENERAL AND MR. NARENDER THAKUR, DEPUTY ADVOCATE GENERAL)

¶13

This petition coming on for admission before notice this day, the Court passed the following:-

¶14

…2…

¶15

O R D E R

¶16

By way of this petition, the petitioner has prayed for grant of regular bail under Section 439 of the Cr.P.C., in case FIR No. 09.2022, dated 17.04.2022, under Sections 376 and 506 of the IPC, registered at Women Police Station Dharamshala, District Kangra (HP).

¶17

Brief facts necessary for adjudication of the petition are that on 17.04.2022, a complaint was made by the prosecutrix alleging sexual exploitation at the hands of petitioner under false promise to marry. It was alleged that the prosecutrix was a married woman, but had strained relations with her husband. Taking advantage of the situation, the petitioner had promised to get her divorced from her husband and to marry her thereafter and under such false promise continued to sexually exploit her from 2015 till February, 2022.

¶18

FIR No.09 of 2022 was registered and investigated and now the challan is also stated to have been filed.

¶19

…3…

¶20

The petitioner was released on bail in FIR No. 9 of 2022 on 07.05.2022 by learned Additional Sessions Judge-III, Kangra at Dharamshala.

¶21

On 18.05.2022, prosecutrix committed suicide. On the statement of sister of prosecutrix recorded under Section 154 of the Cr.P.C., another FIR No. 56 of 2022 was registered on 18.05.2022. In her statement under Section 154 Cr.P.C., the sister of the prosecutrix in addition to alleging abatement of suicide against the petitioner also made allegations against him that he had not only threatened the prosecutrix by visiting her house on 16.05.2022, but had also threatened her brother and another sister of dire consequences in case the case registered against him was not withdrawn.

¶22

The respondent/State filed an application before the learned Additional Sessions Judge-III, Kangra at Dharamshala. For cancellation of bail granted to the petitioner in FIR No. 9 of 2022. Vide order dated 02.07.2022, the bail granted to the petitioner in case FIR

¶23

…4…

¶24

No. 9 of 2022 was ordered to be cancelled. However, the petitioner was already in custody in FIR No. 56 of 2022. Petitioner is stated to be still in custody in FIR No. 56 of 2022.

¶25

As per the averments made in the instant petition, the petitioner has specifically submitted that the allegations of threatenings extended by him to the prosecutrix or her family members were totally incorrect. In fact, the petitioner had married some other woman and the allegations against him were motivated. His prolong incarceration in FIR No. 9 of 2022 is alleged to be violation of his right under Article 21 of the Constitution. It is further submitted that the petitioner has no criminal antecedents. He is permanent resident of House No. 276, Ward No.6, Kotwali Bazaar, Dharamshala, District Kangra, H.P.

¶26

Prayer of the petitioner has been opposed on the grounds firstly that on grant of bail, petitioner may try to tamper with the prosecution evidence and

¶27

…5…

¶28

influence the witnesses and secondly, that he is an accused of serious and heinous offence.

¶29

I have heard learned counsel for the petitioner and learned Additional Advocate General for the respondent and have also gone through the record.

¶30

The order whereby petitioner was granted bail in FIR No. 9 of 2022 by learned Additional Sessions JudgeIII, Kangra at Dharamshala, has been placed on record as Annexure P-1. The factors which had weighed with learned Additional Sessions Judge-III, Kangra at Dharamshala, for granting the bail to the petitioner are extracted as under from bail order dated 07.05.2022:-

¶31

“13. Thus, keeping in view the facts and circumstances of the present case, coupled with the fact that both bail applicant and the prosecutrix were in physical relationship for a considerable period of time i.e., for 7 years and now the complaint has been made against the accused, and without commending upon the merit of the case, this is a fit case where discretion for grant of regular bail can be exercised as the bail applicant was arrested on 17.04.2022 and he

¶32

…6…

¶33

is no more required in the investigation and presently lodged in judicial custody, as such the application is allowed and consequently the bail applicant is ordered to be released on bail in the present case subject to his furnishing of personal bond in the sum of Rs.50,000/- with one surety each in the like amount to the satisfaction of the learned Chief Judicial Magistrate, Kangra at Dharamshala (H.P.) or the learned Judicial Maigstrate First Class-1, Dharamshala or the learned Judicial Magistrate First Class-II, Dharamshala, District Kangra (H.P.).”

¶34

The bail granted to the petitioner has now been

¶35

cancelled by the same Court on the basis of certain allegations made against the petitioner after the prosecutrix committed suicide. The allegations of threatening the prosecutrix and her family members were levelled in a statement under Section 154 Cr.P.C. made by the sister of the prosecutrix. How far such allegations were true is in the realm of suspicion. Learned Additional Sessions Judge-III, Kangra at Dharamshala, considered such allegations to be gospel truth. There is nothing in the status report filed by the respondent/State

¶36

…7…

¶37

that it had found some credible corroboration to the allegations made against the petitioner.

¶38

Liberty allowed to the petitioner by grant of bail by learned Additional Sessions Judge-III, Kangra at Dharamshala, could not have been withdrawn without there bing sufficient proof of the allegations or at least corroborative evidence to the allegations.

¶39

This Court is otherwise in agreement with the learned Additional Sessions Judge-III, Kangra at Dharamshala, on the grounds on which that court allowed the bail to the petitioner vide order dated 07.05.2022. The factors so taken into account for granting the bail to petitioner hold good even today. This is not a case where the pre-trial incarceration of petitioner will serve interest of justice. The right to remain free is a fundamental right and it could be taken away only in accordance with law. Bail is the rule and not otherwise.

¶40

The apprehension of the respondent regarding possibility of petitioner to tamper with the prosecution

¶41

…8…

¶42

evidence and influencing the witnesses can be duly take care of by imposing appropriate conditions. As regards, the seriousness and gravity of allegations against the petitioner, those are to be proved on conclusion of trial, which in all probabilities is likely to take considerable time.

¶43

The investigation is already complete and challan has been filed.

¶44

In peculiar facts of the case, the petition is allowed and the petitioner is ordered to be released on bail in case FIR No. 09.2022, dated 17.04.2022, under Sections 376 and 506 of the IPC, registered at Women Police Station Dharamshala, District Kangra (HP) subject to his furnishing personal bond in a sum of Rs.50,000/with one surety in the like amount to the satisfaction learned trial Court, however, subject to following conditions:-

¶45

(i) That the petitioner shall not directly or indirectly, make any inducement, threat or promise to any person

¶46

…9…

¶47

acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court;

¶48

(ii) That the petitioner shall not leave the country without the express permission of the trial Court and;

¶49

(iii) That the petitioner shall appear before the trial Court on each and every date of hearing of the case and shall not delay the trial of the case.

¶50

(iv) Any violation of the conditions of this bail order shall entail concellation.

¶51

However, it is made clear that the observations

¶52

made hereinabove shall have no bearings on the merit of

¶53

the case and shall be construed for the disposal of the present petition only.

¶54

(Satyen Vaidya) Judge

¶55

8^th September, 2022. (jai)

Swarit Malhotra v. State of Hp

Case brief

What is this about?

What did the court decide?

Swarit Malhotra v. State of Hp

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Narender Kumar and Ors. Vs State of Hp and Ors.

Triveni Kumar and Ors. Vs State of Hp and Ors.

State Vs Hem Chand

Suresh Kumar Vs State of Hp

Lekh Raj Vs State of Hp

Nirmal Kumar Guleria Vs State of Hp