Allowed

Vikram Singh v. State of Hp

Himachal Pradesh HC11 Oct 2023CRMPM/1371/2023

Case brief

AI extract

What is this about?

In a bail application under Section 439 Cr.P.C. for alleged rape and offences under the SC&ST Act, a Single Judge of the Himachal Pradesh High Court held that the appellant could be enlarged on bail subject to conditions. The Court noted that while the offence was serious, the appellant had complied with summons indirectly by arranging travel to India and was appearing for trial. The Court declined to examine merits of the accusation but emphasized the need to balance individual liberty with societal interest, imposing strict bail conditions including a personal bond and prohibition on leaving India.

What did the court decide?

Appellant enlarged on bail with personal bond of Rs. 1,00,000/- and two sureties; conditions imposed include prohibition on leaving India, tampering with evidence, and imposing similar offences.

Vikram Singh Vs State of Hp — Bail and Remand | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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	Cr.M.P. (M) No. 1371 of 2023
	Date of decision: 11.10.2023
Vikram Singh. State of Himachal Prad	…Petition Versus esh. …Respond	er. ent.
*Coram* *The Hon’ble Mr. Justic*	*e Vivek Singh Thakur, Judge.*
*Whether approved for r*	*eporting?*¹
*For the Petitioner.*	*Mr.N.S. Chandel, Senior Advocate, along* *Mr.Rajesh Kumar, Mr.Kshitij Thakur* *Mr.Vishal Verma, Advocates.*	*with* *and*
*For the Respondent*:	*Mr.Manoj Chauhan, Additional Advo* *General for respondent No. 1-State.*	*cate*
	*Mr.Shrawan* *Dogra,* *Senior* *Advo* *alongwith* *Mr.Yudhvir* *Singh* Th *Mr.Rakesh Sharma and Mr.Manik S* *Advocates,* *for* *respondent* *No.* *complainant.*	*cate,* *akur,* *ethi,* 2-

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Vivek Singh Thakur, Judge (Oral)

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Petitioner has approached this Court, invoking provisions of Section 439 Code of Criminal Procedure (in short ‘Cr.P.C.’), seeking bail in case FIR No.143 of 2019, dated 12.9.2019, registered in Police Station Manali, District Kullu, H.P. under Sections 376, 506 of the Indian Penal Code (hereinafter referred to as the “IPC”) and Section 3(1) of the Schedule Caste & Schedule Tribe (Prevention of Atrocities Act), 1989 (hereinafter referred to as ‘SC&ST Act).

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Status report stands filed. Record was also made available. Records of Cr.MMO No. 442 of 2022, titled Vikram Singh Vs. State of H.P. & others, filed on behalf of petitioner under Section 482 Cr.P.C. for quashing

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Whether the reporters of the local papers may be allowed to see the Judgment? Yes

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FIR as well as proclamation order dated 28.8.2020, pending adjudication in this High Court and CWP No. 3987 of 2019, titled as Nirmala Devi Vs. State of H.P. & others, decided on 22.5.2023, were also requisitioned and perused. Learned counsel for the complainant has also placed on record daily order sheets of CWP No. 3987 of 2019 and other documents with regard to termination of marriage of victim with Gagandeep Joshi.

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Facts emerging from the material available are that the petitioner was residing in Australia for his studies, on study VISA, and being member of a farmer’s family, was also running a Taxi as part time job to raise money in order to live in Australia. Lastly, petitioner was residing at 64, Angelwing Street, The Ponds NSW 2769 Sydney, Australia. Prior to 2019, he was residing at 28, Woolgunyah Parkway Flinders, NSW, Sydney. Complainant met petitioner in a club in January, 2018 and thereafter they developed intimacy and complainant started living in relationship with petitioner in Parkway Flinders and they lived as such till June, 2019.

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In July, 2019 a complaint dated 9.7.2019 received from complainant through post in Police Station Sadar, Shimla on 15.7.2019 was made basis for registration of FIR No. 151 of 2019 in Police Station, Sadar, Shimla, wherein it was alleged that petitioner had committed an offence under Section 376 and 506 of IPC by violating the person of complainant by misrepresentation, extending false promise and assurances to marry her and he had also uttered words attracting the provisions of SC&ST Act, as complainant was belonging to a Scheduled Caste.

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After carrying out investigation at Shimla, it was concluded by the Police that no offence was committed by the petitioner at Shimla, but there was material to investigate matter for commission of offence at Manali and thereafter, the case was transferred by the District Magistrate, Shimla to District Magistrate, Kullu, whereupon FIR No. 143 of 2019 was registered in

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Police Station Manali on 12.9.2019. At that time, petitioner as well as complainant were in Australia.

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Later on complainant joined investigation and her statement, including statement under Section 164 Cr.P.C., was recorded by the Police and evidence for corroborating her allegation was collected and notices were issued to the petitioner. As petitioner was not coming to India and thus not available for joining further investigation in November, 2019, a petition CWP No. 3987 of 2019 invoking provision of Article 226 of the Constitution of India was filed by mother of complainant seeking direction to the respondents-State to constitute a Special Investigation Team to investigate the case FIR No. 151 of 2019, dated 20.7.2019, registered in Police Station, Sadar, Shimla, alleging that Shimla Police had arrived at a wrong conclusion that no offence was committed at Shimla and further that the complainant, out of relations with petitioner, was in advanced stage of pregnancy, whereas petitioner was denying his paternity and was not coming to India, rather proclaiming that he would not come to India for want of extradition treaty with Australia and would flee to some other country.

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In CWP No. 3987 of 2019, petitioner was not arrayed as party. After knowing about filing of Writ Petition, petitioner filed an application through his father, by executing attorney in his favour to become partyrespondent in the Writ Petition.

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During pendency of Writ Petition, for want of physical appearance of the petitioner, the Writ Court passed orders on various counts which resulted into declaration of petitioner as proclaimed offender vide order dated 28.8.2020 and cancellation of his study VISA, and petitioner was also declared fugitive under the applicable law including Indian Passport Act, 1987 and ultimately petitioner came to India after obtaining Emergency Travel Document and was arrested on 9^th March, 2023 on arrival in India. Since then petitioner is in judicial custody. On

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completion of investigation challan/chargesheet was filed in the Court at Kullu on 22.9.2020.

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In May, 2022, petitioner, through his father, has also preferred Cr.MMO No. 442 of 2022 for quashing of FIR and also for setting aside of proclamation order dated 28.8.2020. The said petition is pending adjudication in this High Court. According to petitioner, complainant had informed him that she was in Australia since 2009 and was living in Australia as a Green Card Holder with her Australian boyfriend. Later on, she came to reside with the petitioner by saying that her relations with her boyfriend were broken and, therefore, she was in need of shelter for few days till search for her own accommodation and during this time, relations between the petitioner and complainant developed.

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In January, 2019, petitioner came to India for vacation. In February, 2019 complainant also came to India and contacted petitioner for informing that she was also in India and then both of them visited different places in India and went back to Australia in March, 2019.

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As per petitioner, after reaching Australia, complainant planned a trip to Bali (Indonesia) and requested the petitioner to accompany her. Petitioner expressed his inability to spend money on such trips, but complainant assured that she would be bearing all expenses and as such they went to Bali on 3.4.2019 and came back to Australia on 11.4.2019. 12. According to petitioner on 19.5.2019, a message was received by him that complainant was pregnant, but she did not want to have a child, whereupon petitioner responded that if she was not comfortable then she could abort the child and complainant also contacted the doctor, but according to doctor, abortion was not possible and, therefore, complainant suggested the petitioner to visit another country, India or Bali, for abortion, wherever it was possible. On refusal of the petitioner to co-operate her in this regard, complainant became upset and started shouting upon the

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petitioner and asked him to leave the house. Whereafter, petitioner left the house and started living with his friend in Blacktown Australia. Thereafter, complainant started harassing the petitioner by making telephone calls, messages extending threats to the petitioner asking him to come back otherwise she would make complaint to the Police. When petitioner did not succumb to her pressure, complainant on 24.6.2019 filed a complaint under Crimes (Domestic and Personal Violence) Act, 2007 for apprehended domestic violence order, in Australia.

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After receiving the complaint, inquiry was conducted by the Australian Police with video recording of the investigation and ultimately on 28.8.2020, application for apprehended violence order was withdrawn and dismissed. According to petitioner, due to pendency of aforesaid Criminal Case in Australia, he could not leave Australia till dismissal of the case on 28.8.2020.

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In complaint filed in India in July, 2019, complainant had alleged commission of rape by the petitioner by making false promise of marriage and commission of offence under SC&ST Act by criminally intimidating and using defamatory and derogatory words about caste of the complainant and extending threats to her. As per this complaint, both of them met in January, 2018 and with an ulterior motive, petitioner started meeting her frequently and expressed his willingness to marry her for which complainant, initially was not ready, but for expression of too much love towards her with communication that petitioner could not live without complainant and assurance to talk with family of the victim in this regard and also introducing her with his family, complainant developed intimacy with petitioner. Further that petitioner came to India in January, 2019 and she came to India in February, 2019 and they stayed in hotel Shangrilas’ at New Delhi for two days and thereafter stayed at Shirdi in a hotel for one day, two days in Aurangabad, and the petitioner tried to develop physical relations with

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complainant, which was resisted by her by saying that as per tradition such relations should be after marriage, but the petitioner told that he had been considering her as his wife and advised her also to consider him as her husband and promised that very soon their marriage shall be solemnized, for which they had come to India and thus convinced the complainant to develop physical relations under the belief that petitioner was her husband and thereafter on many occasions and different places, petitioner violated her. Petitioner also met brother and mother of complainant in India and both of them i.e. petitioner and complainant went to Manali together alongwith brother of complainant and his fiancée and stayed there for two days, i.e. 22.3.2019 and 23.3.2019, where also petitioner committed sexual intercourse with her. They also stayed at Chandigarh for one day, where petitioner met her mother and expressed his intention and willingness to marry complainant with assurance that he was going to talk with his family very soon. According to complaint, petitioner also stayed at parental house of complainant at Shimla and during that stay also when her mother left the house for job and brother of complainant was not available, petitioner violated her person by making her to believe that he was her legal husband and despite her resistance he did not stop violation of her person, at her parental house of Shimla.

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According to complaint, complainant returned to Sydney in March, 2019 and thereafter it was petitioner who planned a trip to Bali (Indonesia) and they went to Bali from 3.4.2019 to 11.4.2019 and entire expenses were incurred by complainant. At Bali also, petitioner violated her person and pretended the couple as husband and wife in Bali. After returning to Australia, complainant made several requests to the petitioner to arrange marriage and in response petitioner assured her that within one or two months marriage or roka ceremony will be organized with consent of his family.

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According to complaint, in May, 2019, complainant on account of ailment went to the doctor and during medical examination she came to know that she was pregnant from the loins of the petitioner and the said fact was intimated to the petitioner with request to arrange marriage at the earliest, but attitude of the petitioner was hostile and he expressed that their relation was only for fulfilling the lust of sex and he would never solemnize marriage with her and petitioner forced the complainant to abort the child, whereupon complainant was shocked but again requested petitioner to solemnize marriage, however in response thereto, petitioner assaulted, abused, harassed and humiliated the complainant regarding which complainant lodged a complaint with Australian Police which was pending investigation at the time of submitting the complaint to the Police at Shimla. It was stated in the complaint preferred at Shimla that petitioner was extending threats to kill complainant, her mother, her family members with open refusal to accept the complainant and her unborn child and mounting pressure to abort the child. On the basis of aforesaid complaint, FIR was registered in Shimla, referred supra, which on transfer to Manali was registered.

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Record of complaint filed by the complainant in Australia is also available in the file of Cr.MMO No. 442 of 2022. FIR in India was registered subsequent to lodging of complaint by the complainant with Australian Police in June, 2019. In Criminal proceedings in Australia, it was claimed by complainant that both of them, petitioner and complainant, were living together in relationship since last 1 and ½ year (i.e. January 2018) and she was pregnant at that moment out of said relationship and further that petitioner was not happy with pregnancy and, therefore, pressurized the complainant to terminate the pregnancy and she tried to terminate the same, but in followup checkups she was again confirmed pregnant and they were trying another attempt for termination, but when complainant refused for

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termination of pregnancy, petitioner became upset and angry and tried to strangulate her and pushed her and started threatening her and since then they were not talking to each other much and on Wednesday she moved out, and the petitioner had approached her family in India and was intending to create trouble for them as well as the complainant. The complainant also claimed that she was a single girl and as per Indian culture single girl is not supposed to carry pregnancy and, therefore, she was pressing the petitioner to solemnize marriage, whereupon petitioner became aggressive and refused to marry her and became violent.

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The aforesaid complaint, in Australia, after conducting inquiry, was placed before the Magistrate. In statement by the petitioner in response to the complaint, petitioner claimed that he never gave any suggestion regarding termination of pregnancy and every decision, either to carry pregnancy or to terminate the same, was of complainant and was acceptable to him and it was complainant who was not interested to carry child and was planning to terminate the same and further that complainant had made a call to his parents and brother in India and extended threats by saying that in case petitioner did not live with her, she would file a case against him in India too. In his statement, petitioner had submitted that they were in domestic relationship since March, 2018.

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It is claim of the petitioner that complainant was not a single girl, but was a married lady, who had been married twice. Firstly to Lakhvir Singh on 20.7.2008 and the said marriage was dissolved on 23^rd May, 2015 through a divorce order passed by the Federal Court of Australia in File No. (P) PAC 1061 of 2015 pertaining to the marriage of Lakhvir Singh and Gaurvi Gharu (complainant).

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A certificate issued under Hindu Marriage Act (Rule 5A) has also been placed on record indicating that marriage between Lakhvir Singh

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and complainant was solemnized on 20.7.2008 at Jandiala, District Jalandhar, for registration of which application was made on 28.7.2008.

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Copy of another marriage certificate under Hindu Marriage Act (Rule 10) has also been placed on record to established that on 5.9.2015 marriage of complainant Gaurvi Gharu was solemnized with Gagandeep Joshi at Prachin Mandir Sidh Baba Balak Nath Ji Garshankar in District Shahid Bhagat Singh Nagar, Punjab and application for registration whereof was submitted on 8.9.2015 and it was registered on 17.9.2015. The aforesaid facts with regard to earlier marriages of the complainant have not been denied, instead a photocopy of divorce order passed under Family Law Act, 1975 by Federal Court of Australia in File No. (P) PAC 3457/18 with respect to marriage between Gagandeep Joshi and Gaurvi Gharu dissolving their marriage on 4.5.2019, has been placed on record, claiming that in June, 2019, at the time of submitting the complaint to Australian Police, complainant was single girl.

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As per petitioner, for registration of Criminal Case of Domestic Violence, he was not able to leave Australia till August, 2020 and in the meanwhile International Flights were not available easily for spread of Covid-19 and later on for orders passed by the Division Bench of this High Court in CWP No. 3987 of 2019, Passport of the petitioner was cancelled and he was treated as a fugitive and thus he had to manage return to India by obtaining Emergency Travel Document, and further that during this period he was also pursuing his study and that due to Covid-19 flights were also not easily available, he could not come to India before March, 2023. Further that in March, 2023 also petitioner himself had informed, about his travel, to the Police by supplying details of Flight and its scheduled arrival at Delhi, whereupon Police was able to arrest him at Airport itself.

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It is claimed by the petitioner that at the time of lodging FIR, submitting complaint for registration of FIR, petitioner was residing at

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Australia, as also stated in the complaint, on the basis of which FIR has been registered. Police as well as Court was well aware about his place of residence and despite that summons were issued at his local address of India, i.e. VPO Urlana Khurd, Tehsil Madlauda, District Panipat (Haryana) and it was reported that petitioner was not available and instead of issuing notices/summons to the petitioner through Embassy, petitioner was declared proclaimed offender. Further that whereabouts of petitioner alongwith documents were disclosed by his father in application under Order 1 Rule 10 CPC filed in CWP No. 3987 of 2019 in September, 2021 and, therefore, Police was also having address of the petitioner as supplied through father in CWP No. 3987 of 2019. It has been further submitted on behalf of petitioner that there was no allegation of cheating and caste in complaint filed in Australia, but in contrast such allegations have been included in the complaint sent to the Superintendent of Police, Shimla by post. Further, in both complaints, there is non-disclosure of marital status of the complainant and despite supplying copies of certificates of marriages of the complainant, Investigating Officer did not look into and investigate on this line.

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According to petitioner entire facts and circumstances on the record clearly indicate that the complaint in India has been lodged for mounting pressure on the petitioner and his family to solemnize marriage with complainant, to which petitioner never promised. It has been further submitted that as per FIR, petitioner developed physical relations under the false promise to solemnize marriage, in January, February and March, 2019, whereas it is admitted case of the complainant, in complaint of Domestic Violence preferred in Australia that the petitioner and the complainant had been living in relationship since January-March, 2018 and even in case it is considered that second marriage of complainant was dissolved in May, 2019, even then complainant was not a single since January, 2018 till May, 2019 during which she had been living in relationship with the petitioner and,

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therefore, there was no question of misrepresenting the complainant with false promises to marry as she had already been married to someone else. 25. During pending investigation child was born and on matching DNA profiling of the child with the petitioner, it has been found that petitioner is biological father of the child.

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Learned counsel for the petitioner has submitted that even giving birth to the child of the petitioner by complainant, it is not established that there was misrepresentation or false promise to solemnize marriage with the complainant by the petitioner as at the time of alleged development of relations between the petitioner and the complainant, even if it is taken to be January to March, 2019 only, there was no occasion for solemnization of marriage of complainant with the petitioner because complainant at that time was not single, but was a married wife of Gagandeep Joshi and further that as admitted in the complaint under Domestic Violence, complainant was in relationship with the petitioner since January, 2018 and for about one year there was no complaint or request by the complainant to solemnize marriage with her as she was knowing that she was already married to someone else.

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It has been further submitted that even if it is considered that relationship between the parties was to the extent that they were intending to marry with each other, then also for broken relationship, marriage was not solemnized, but it could not be presumed that there was a false promise to marry with intention to develop physical relations by misrepresenting and assuring to solemnize the marriage and, therefore, it has been claimed that petitioner is entitled for bail.

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Though petitioner has preferred Cr.MMO No. 442 of 2019 for setting aside order dated 28.8.2020 declaring him proclaimed offender alongwith prayer for quashing of FIR, but as the petitioner has been arrested during pendency of the said petition, prayer for setting aside the order dated 28.8.2020 has become infructuous because declaration of proclaimed

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offender is made for assuring presence of an accused and in present case petitioner has made himself available by informing his arrival in India to the Police and after his arrest the order dated 28.8.2020 has lost its relevancy and efficacy. After arrest of the petitioner, it was duty of Arresting Officer to inform the concerned Police Station about arrest of the petitioner. Declaration of as proclaimed offender on availability of accused for trial is rendered otiose and ceases to operate.

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Vide order dated 22^nd May, 2023, CWP No.3987 of 2019 has been disposed of by recording that since the petition has achieved its purpose, therefore, the same is rendered infructuous. 30. Learned counsel for the petitioner to substantiate his plea for enlarging the petitioner on bail has placed reliance upon Cr. Appeal No. 2322 of 2010, titled as Deepak Gulati Vs. State of Haryana (Supreme Court) ; Cr. Appeal No. 175 of 2013, titled as Prashant Bharti Vs. State of NCT of Delhi (Supreme Court) ; Cr.MMO No. 153 of 2016, titled as Dushyant Kumar Vs. State of Himachal Pradesh & another (High Court of Himachal Pradesh) ; Criminal Appeal No. 257 of 2023, titled as Naim Ahamed Vs. State (NCT of Delhi) (Supreme Court) ; Criminal Appeal No. 1030 of 2018, titled as Salim Abdul Shaikh Vs. The State of Maharashtra (Bombay High Court) ; Criminal Appeal No. 1165 of 2019, titled as Pramod Suryabhan Pawar Vs. The State of Maharashtra & another (Supreme Court) ; Criminal Revision Application No. 434 of 2021, titled as Rohit Dinanath Ray Vs. State of Gujarat (High Court of Gujarat) ; Criminal Misc Anticipatory Bail Application No. 7653 of 2021, titled as Vinay Kumar Chaurasiya Vs. State of U.P. and another (Allahabad High Court) ; Criminal Appeal No. 1231 of 2022, titled a Shambhu Kharwar Vs. State of Uttar Pradesh & another (Supreme Court) ; Cr. MC No. 1819 of 2019, titled as Tino Thankachan Vs. State of Kerala (Kerala High Court) ; Criminal Misc. Bail Application No. 23551 of 2023, titled as Vivek Kumar

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Maurya Vs. State of U.P. and 3 others (Allahabad High Court) ; Cr. MC No. 4933 of 2021, titled as Shahul Satheesh Vs. State of Kerala & another (Kerala High Court) ; Cr. M.C. No. 9312 of 2019, titled as Anilkumar Vs. State of Kerala (Kerala High Court) ; Cr. Misc. Petition (Main) No. 2315 of 2021, titled as Mohan Lal Sharma Vs. State of H.P. (Himachal Pradesh High Court) ; Criminal Petition No. 544 of 2021, titled as Prajith R. Vs. Smt. XXXX and another (Karnataka High Court); and Pramod uryabhan Pawar V. State of Maharashtra and another, (2019) 9 SCC 608 (Supreme Court) .

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Mr.Shrawan Dogra, Senior Advocate, under instructions, has argued that bail application preferred by the petitioner has been dismissed by the Trial Court by passing detailed order dated 27.5.2023 by considering all relevant factors and the issues raised by the petitioner, and this Court is not Appellate Court in bail application and reasons stated in the order dated 27.5.2023 are relevant for adjudication of present application which have been rightly recorded by the Trial Court. Further that keeping in view the past conduct of the petitioner, there is every possibility of petitioner fleeing from justice by jumping over the bail, if granted to him, and that in the bail application preferred before the Trial Court, petitioner had alleged that complainant was a lady of easy virtue and, therefore, there was possibility of conceiving the child from someone else, whereas on matching of DNA profile, it stands proved that the petitioner is biological father of the child of the complainant, which indicates that petitioner was trying to shirk from his responsibility, despite the fact that he had developed relations with the complainant by extending false promises to marry. It has been submitted that for considering the bail application, the Court is not expected to go into detailed examination of evidence and elaborative documents, but has to arrive at a prima facie conclusion whether bail has to be granted or not, particularly where an accused, like petitioner, is involved in commission of a

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serious heinous offence. Learned arguing counsel on behalf of complainant, has further contended that bail is a rule where there is no likelihood of absconding of an accused during the course of trial, but like present case where presence of petitioner has been procured with great difficulty with indulgence of the High Court in CWP No.3987 of 2019, that too after about four years of registration of FIR, there is every likelihood that petitioner after his enlargement on bail would not be available during trial and there is reasonable apprehension of absconding of petitioner and tampering with the evidence and extension of threats to the complainant and/or other witnesses and it would not be possible to secure presence of the petitioner at the time of trial.

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It has been contended on behalf of complainant that, as also observed by the trial Court, there is nothing on record to suggest that Medical Officers/Experts, who examined and treated the complainant and were instrumental in getting samples for matching DNA profiling and arriving at conclusion stated in RFSL report, were having any animosity with the bail petitioner in order to implicate him falsely in the case or having proximity with complaiannt. Rather RFSL report reveals that allegations leveled by the complainant upon the petitioner are true and correct.

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It has been further contended by learned arguing counsel for the complainant that in order to shield the society from the hazards of commission of serious crimes and to decrease the potentiality of repeating such crimes, present petition deserves to be dismissed, because, keeping in view the nature and manner of the offence committed by the petitioner, right of individual/personal liberty shall not prevail over the societal interest.

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It has also been contended that keeping in view the consequences upon the society, on grant of bail in cases like present one, which are grave offences, bail petition deserves to be dismissed, as the matter under reference is of sensitive nature, having grave impact upon the

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society, as the society has a vital interest in grant or refusal of bail because every offence is offence against the State and, therefore, an order granting or refusing bail must reflect perfect balance between the conflicting interest, namely, sanctity of individual liberty and the interest of the society and in present case the balance of convenience is in favour of interest of society.

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It has been contended that past conduct at the time of filing anticipatory bail is also relevant to reject the bail application.

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It has been contended that there is neither appreciation nor misappreciation by the Trial Court which may be termed to be contrary to law and the Trial Court has passed a detailed order by taking into consideration all aspects and, therefore, present petition deserves to be rejected.

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By referring various daily orders passed by Division Bench of this High Court in CWP No. 3987 of 2019, learned arguing counsel for complainant has contended that there is more than sufficient material on record to construe the intention and conduct of the petitioner for commission of offence, disentitling him for release on bail.

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To substantiate his claim, learned arguing counsel for the complainant has placed reliance upon State of Maharashtra Vs. Captain Buddhikota Subha Rao, AIR 1989 SC 2292; Prahlad Singh Bhati Vs. NCT, Delhi, (2001) 4 SCC 280; Kalyan Chandra Sarkar Vs. Rajesh Ranjan alias Pappu Yadav and another, (2004) 7 SCC 528; Vinod Bhandari Vs. State of Madhya Pradesh, (2015) 11 SCC 502; P. Chidambram Vs. Directorate of Enforcement, (2010) 13 SCC 791 and Jaibunisha Vs. Meharban and another, (2022) 5 SCC 465.

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Learned Additional Advocate General submits that there is ample material on record to construe that there was allurement on the part of the petitioner. Petitioner was well aware about the family of the victim and was well connected to them and it was possible only if petitioner had made mis-representations to marry their daughter and DNA profile report

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has established that petitioner had violated person of complainant at various places in India including Himachal Pradesh at Shimla and Manali and thereafter he moved to Australia and never came back to India, which shows that he was intentionally misrepresenting the complainant to marry her and, therefore, he is not entitled for bail.

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Learned arguing counsel for the petitioner, in rebuttal, has placed reliance upon pronouncement of this Court in Vijay Narain & others Vs. State, 1976 C.L.R. (HP) 68 , wherein it has been held that jurisdiction of the High Court to grant bail under Section 439 Cr.P.C. is independent of its revisisional jurisdiction under Section 397 Cr.P.C and on rejection of bail application by Sessions Court, similar application before the High court is maintainable.

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Learned counsel for the petitioner has re-submitted that there are allegations in the complaint filed in India that petitioner had violated person of complainant by giving false promises to marry, resulting into consent by the complainant on the basis of mis-representations, however, no such allegations have been made by the complainant in the complaint preferred for domestic violence in Australia, as there is not even a whisper about violation of person by the petitioner by giving false promise to marry. The whole case in Australia was that petitioner and complainant were living in relationship since 18 months, i.e. from January, 2018. Whereas to the contrary, in complaint filed in India, the allegations are that relations have been alleged to be developed in January, 2019 on the basis of false promise to marry.

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It has been further submitted that the conduct of the petitioner is to be assessed on the basis of surrounding circumstances, i.e. pendency of Criminal Case in Australia as an obstacle to leave Australia, situation arising on account of Covid-19 pandemic and its impact on the International Flights, cancellation of Passport of the petitioner by order of the Court, treating him

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fugitive, and thereafter time consumed in getting Emergency Travel Document to come back to India, which are relevant factors preventing the petitioner from coming to India and submitting himself to the Court and in case petitioner would have intention to flee from justice, he would not have filed anticipatory bail application by engaging counsel from Chandigarh, which was dismissed on account of mischief played by the said counsel, whereas petitioner had never instructed to do so, as petitioner was not aware about the procedure for approaching the Court to seek anticipatory bail and for any misconduct on the part of Advocate, petitioner should not suffer.

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Learned arguing counsel for the petitioner to substantiate the plea that due to Covid-19 pandemic, International Flights are not easily available, has referred guidelines dated 21.11.2022 issued by Ministry of Health and Family Welfare to the Government of India and order dated 21.11.2022 issued by Ministry of Civil Aviation, Government of India. 44. It has been further contended by learned arguing counsel for the petitioner that it is not a case where petitioner or his family members were shirking from facing the investigation or other litigation, rather complainant, through her mother, had tried to obtain an order disadvantageous to the petitioner, but without arraying the petitioner as party and it was petitioner only, who, through his father, filed an application to become party in the Writ Petition. Therefore, there is no possibility of petitioner absconding or fleeing from justice. It has been further submitted that any stringent condition as deemed fit by this Court, to ensure presence of the petitioner, may be imposed. It has been submitted that petitioner undertakes to abide by any condition imposed upon him for enlarging him on bail including furnishing local surety as well as surety of some relative.

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It has been argued on behalf of petitioner that proclamation order, issued after issuing summons/warrants on address where petitioner

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was not residing despite knowning the said fact that he, at the relevant point of time, was residing in Australia, is not sustainable in the eye of law and for such proclamation, it cannot be construed that petitioner would abscond or jump over the bail in case he is enlarged on bail particularly when petitioner had been trying to seek anticipatory bail to participate in and joining investigation. The conduct of the petitioner and his family reflects otherwise, indicating that they are law abiding persons ready to submit them to the Court as well as law.

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So far as law cited by either side is concerned, there is no quarrel or dispute about the ratio propounded in these judgments. For considering a bail application, law has to be applied in the given facts and circumstances. In an offence of similar nature, for different facts and circumstances, bail can be granted or rejected, considering the factors and parameters required to be considered for adjudication of bail application.

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Taking into consideration the entire facts and circumstances, but without going into merits of rival contention of parties, but taking into account factors and parameters required to be considered at the time of adjudication of bail application as propounded by the Courts, including the Supreme Court, I am of the considered opinion that at this stage petitioner may be enlarged on bail.

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Accordingly, present petition is allowed and petitioner is ordered to be enlarged on bail, subject to his furnishing personal bond in the sum of ,00,000/- with two sureties each in the like amount, one of which shall be local surety and another shall be relative of the petitioner, as undertaken by him, to the satisfaction of the trial Court and upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to assure presence of the petitioner at the time of trial:-

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(i) That the petitioner shall make himself available to the Police or any other Investigating Agency or Court in the present case as and when required;

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(ii) that the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

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(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;

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(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;

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(v) that the petitioner shall not misuse his liberty in any manner;

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(vi) that the petitioner shall not jump over the bail;

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(vii) that in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by prosecution;

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(viii) that the petitioner shall keep on informing about the change in address, landline number and/or mobile number, if any, for his availability to Police and/or during trial; and

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(ix) the petitioner shall not leave India without permission of the Court.

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It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner, enlarged on bail, as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.

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In case the petitioner violates any conditions imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.

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Learned trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.

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Observations made in this petition hereinbefore shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail applications.

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The parties are permitted to produce copy of order downloaded from the High Court website and trial/concerned Court shall not insist for certified copy of the order, however, if required, passing of order can be verified from the High Court website or otherwise.

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The petition stands disposed of in the aforesaid terms.

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11^th October, 2023 (Keshav)

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(Vivek Singh Thakur), Judge.

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Digitally signed by SUBHASH CHAND DHIMAN SUBHASH DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=3418061207364d8c002725dfc58ff116f678c3d39 289db29b992cce875905119, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=5ce240fac0e1267843f29509683d09a CHAND 9912af10edc4e6cd2ed5d4a8c30134c1b, CN=SUBHASH CHAND DHIMAN Reason: I am the author of this document Location: DHIMAN Date: 2023-10-11 17:02:27

Vikram Singh v. State of Hp

Case brief

What is this about?

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Vikram Singh v. State of Hp

Case brief

What is this about?

What did the court decide?

What the court decided

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