Ajay Pal Vs State of Hp

¶1

2024:HHC:6558

¶2

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

¶3

Cr. MP(M) No.1207 of 2024 Date of Decision: 07.08.2024

¶4

________________________________________________________________ Ajay Pal ...Petitioner

¶5

Versus

¶6

State of Himachal Pradesh …Respondent

¶7

________________________________________________________________ Coram: The Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?¹

¶8

_______________________ For the petitioner:	______________ Mr. Kashmi	___________________________ r Singh Thakur, Advocate.
For the respondent:	Mr. Vishal and Mr. Advocates	Panwar, Mr. Rajan Kahol B.C. Verma, Additional General, with Mr. Ravi
	Chauhan, along with	Deputy Advocate General, HC Jatinder Singh, No.40,
	I.O., Police District Bad	Station Manpura, Police di, Himachal Pradesh.

¶9

________________________________________________________________ Sandeep Sharma, J. (Oral)

¶10

Bail petitioner, namely Ajay Pal, who is behind the bars since 27.02.2024, has approached this Court in the instant proceedings filed under Section 439 Cr.P.C, for grant of regular bail in case FIR No.11 of 2024, dated 30.01.2024, under Sections 376, 354-D, 506, 509 of IPC and Section 67 of I.T. Act, registered at Police Station Manpura, Police District Baddi, Himachal Pradesh.

¶11

Respondent/State has filed status report and HC Jatinder Singh, No.40, I.O., Police Station Manpura, Police District Baddi, Himachal Pradesh, has come present along with record. Record perused and returned.

¶12

1 Whether reporters of the local papers may be allowed to see the judgment?

¶13

2024:HHC:6558

¶14

2

¶15

Close scrutiny of record reveals that

¶16

victim/prosecutrix (name withheld) lodged a complaint at Police Station Manpura, District Solan, alleging therein that she had been living in village Manpura for last four years. She alleged that though her marriage has not been solemnized, but during COVID-19, she came in contact with person namely Ajay Palpetitioner herein and thereafter, he unauthorizedly clicked her nude/obscene photographs and uploaded the same on Instagram. She alleged that though she as well as her relatives persuaded the bail petitioner not to do such acts, but he again uploaded her nude and obscene photographs on Instagram and as such, appropriate action in accordance with law be taken against him. On the basis of aforesaid complaint lodged by victim/prosecutrix, at first instance, Police lodged FIR under Sections 354D and 509 IPC and Sections 66A and 67 of I.T. Act, however, subsequently, on the basis of investigation, Section 66A of I.T. Act came be deleted, whereas Section 506 of IPC came to be incorporated. Since during investigation, victim/prosecutrix alleged that she was repeatedly sexually assaulted against her wishes by the bail petitioner, as such, offence under Section 376 IPC also came to be incorporated.

¶17

Since Challan stands filed in the competent Court of law and nothing remains to be recovered from the bail petitioner,

¶18

2024:HHC:6558

¶19

3

¶20

he has approached this Court in the instant proceedings for grant of regular bail.

¶21

Mr. Vishal Panwar, learned Additional Advocate General, while fairly admitting the factum with regard to filing of the Challan in the competent Court of law, contends that though nothing remains to be recovered from the bail petitioner but keeping in view the gravity of the offence alleged to have been committed by him, he does not deserve any leniency and prayer made on his behalf for grant of bail deserves outright rejection. While making this Court peruse record, especially photographs allegedly uploaded on Instagram by the petitioner, Mr. Panwar states that there is overwhelming evidence adduced on record suggestive of the fact that bail petitioner not only sexually assaulted victim/prosecutrix against her wishes, but also made her photographs and video viral, as a result thereof, great humiliation was caused to the victim/prosecutrix. Mr. Panwar states that since statement of victim/prosecutrix is yet to be recorded in the trial Court, it may not be in the interest of justice to enlarge bail petitioner on bail, who in the event of being enlarged on bail, may not only flee from justice, but may also cause harm to the victim/prosecutrix.

¶22

Having heard learned counsel for the parties and perused the material available on record, this Court finds victim/prosecutrix, aged 22 years, had been meeting and talking

¶23

2024:HHC:6558

¶24

4

¶25

to bail petitioner for the last three years of her own volition. As per statements recorded under Section 161 and 164 Cr.P.C., she had become friends with the petitioner during COVID-19 and since then, they were meeting and talking to each other. Though at first instance, victim/prosecutrix nowhere levelled allegation of rape, however, subsequently during investigation, she alleged that apart from making her video and obscene photographs viral, she was also subjected to forcible sexual intercourse by the petitioner.

¶26

There is no explanation rendered on record that why no complaint was ever lodged by victim/prosecutrix qua the incident of forcible sexual assault, if any, committed by the petitioner, rather, as per own statement, she kept on waiting, till the time, her videos were allegedly uploaded on Instagram by the accused. Allegedly, incident of forcible sexual assault took place in the year 2021, whereas FIR came to be lodged in the year 2024, no explanation qua the delay in lodging FIR has been rendered on record. Once factum with regard to possession of obscene photographs and videos was very much in the knowledge of victim/prosecutrix, she was expected to lodge complaint to the Police or her parents at first instance, so that preventive steps could be taken immediately. Though, victim/prosecutrix in her statement recorded under Section 164 Cr.P.C. alleged that once she had became friend of bail petitioner, he unauthorizedly

¶27

2024:HHC:6558

¶28

5

¶29

clicked her obscene photographs and videos, however, such version of her does not appear to be correct.

¶30

After having perused photographs allegedly uploaded by the bail petitioner on Instagram, this Court is not persuaded to agree with Mr. Vishal Panwar, learned Additional Advocate General that such photos were taken unauthorizedly or under coercion, rather, photographs allegedly uploaded on Instagram appear to have been clicked with the consent of victim/prosecutrix. No doubt, status report reveals that obscene photographs were uploaded from the mobile phone of the petitioner, but such fact, if any, is yet to be established on record by the prosecution by leading cogent and convincing evidence.

¶31

Though aforesaid aspects of the matter are to be considered by Court below in totality of evidence collected on record by the Investigating Agency, but having taken note of the aforesaid glaring aspects of the matter, this Court sees no reason to curtail the freedom of the bail petitioner for an indefinite period during trial, especially when Challan stands filed in the competent Court of law and nothing remains to be recovered from him.

¶32

Hon’ble Apex Court as well as this Court in catena of cases have repeatedly held that one is deemed to be innocent till the time guilt, if any, of his/her is not proved in accordance with law. In the case at hand also, guilt, if any, of the accused is yet

¶33

2024:HHC:6558

¶34

6

¶35

to be proved in accordance with law, by leading cogent and convincing material on record, as such, his incarceration for indefinite period is clear cut violation of Fundamental Right granted under Article 21 of the Constitution of India. Apprehension expressed by the learned Additional Advocate General that in the event of petitioner’s being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions as has been fairly stated by the learned counsel for the petitioner.

¶36

Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has been further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty.

¶37

Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon’ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable

¶38

2024:HHC:6558

¶39

7

¶40

amount of bail. The object of bail is neither punitive nor preventative.

¶41

In Manoranjana Sinh alias Gupta versus CBI , (2017) 5 SCC 218 , Hon'ble Apex Court has held that the object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.

¶42

The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496 , has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced.

¶43

In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, petitioner has carved out a case for grant of bail. Accordingly, present petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of

¶44

2024:HHC:6558

¶45

8

¶46

Rs.2,00,000/- with two local sureties in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions:

¶47

(a) he shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

¶48

(b) he shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

¶49

(c) he shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and

¶50

(d) he shall not leave the territory of India without the prior permission of the Court.

¶51

It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.

¶52

Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. The petition stands accordingly disposed of.

¶53

The petitioner is permitted to produce copy of the order downloaded from the High Court Website and the trial court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.

¶54

( Rajeev Raturi )

¶55

(Sandeep Sharma) Judge

¶56

07^th August, 2024

Ajay Pal v. State of Hp

Case brief

What is this about?

What did the court decide?

Ajay Pal v. State of Hp

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Dhanpat Vs Smt Bansla Alias Bandana Kumari

Satya Devi Vs Jarman Singh

Gian Bhaik Vs Satish Mehta

Ranjeet @Jeet Vs Ravi Kant

State of Hp Vs Prem Singh

M/s Speedup India Multi Trade Pvt. Ltd. Vs Dinesh Chopra