Allowed

Naresh Kumar v. State of Hp

Himachal Pradesh HC6 Sept 2024CRMPM/1536/2024

Case brief

AI extract

What is this about?

The petitioner sought regular bail in an FIR alleging rape and forgery. The court noted that the investigation revealed the victim was a major, had voluntarily executed documents, and had married the petitioner. Finding no prima facie case and noting the charge sheet was filed, the court granted bail.

What did the court decide?

Released on bail by furnishing bail bonds of ₹ 50,000/- with one surety.

Naresh Kumar Vs State of Hp — Bail and Remand | Himachal Pradesh HC (2024)

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Neutral Citation No. ( 2024:HHC:8003 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MP (M) No. 1536 of 2024 Reserved on: 08.08.2024 Date of Decision: 6^th September, 2024

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Naresh Kumar ...Petitioner Versus

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State of Himachal Pradesh ...Respondent

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Coram Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No

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For the Petitioner	:	Mr. Parikshit Rathour, Advocate.
For the Respondent	:	Ms. Ayushi Negi, Deputy Advocate General.

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Rakesh Kainthla, Judge

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The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested for the commission of offences punishable under Sections 376 and 506 of the Indian Penal Code (in short ‘IPC’) registered in Women Police Station, Baddi, District Solan. As per the FIR, the petitioner had taken the Aadhar Card, PAN Card and Matriculation Certificate of the victim and he misused them for preparing the false Marriage Certificate. He took the victim to a

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Neutral Citation No. ( 2024:HHC:8003 )

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hotel and raped her. When the victim demanded the documents from the petitioner, he sent a certificate stating it to be a marriage certificate of the petitioner and the victim. The police registered the FIR and conducted the investigation. The police filed a charge sheet before learned Additional Chief Judicial Magistrate, Nalagarh. The investigation is complete. No recovery is to be effected from the petitioner. The marriage between the parties was solemnized with the consent and participation of the victim. When the parents and relatives of the victim came to know about the marriage, they threatened the petitioners as the petitioner belonged to a different caste. The FIR was lodged by the victim at the instance of her relatives. The allegations in the FIR do not constitute the commission of a cognizable offence. The petitioner is a young boy aged 24 years and his detention is not justified. His continued detention will affect his career. He will abide by all the terms and conditions, which the Court may impose. Hence, the petition.

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The petition is opposed by filing a status report asserting that the victim made a complaint to the police stating that she knew the petitioner. The petitioner raped her when she was a minor. The petitioner took her to a hotel on 23.12.2023

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Neutral Citation No. ( 2024:HHC:8003 )

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where he had raped her. He demanded the documents from the victim and obtained her signatures on the blank papers. He prepared a false marriage certificate showing that the victim had married him. When the victim demanded her documents, the petitioner threatened to make her video and photographs viral. The victim talked to the petitioner’s mother but she also abused her. The police registered the FIR and conducted the investigation. The police found after the investigation that the victim was aged 19 years on the date of the incident. She was born on 03.12.2004 and was a major. No offence punishable under Section 6 of the POCSO Act was made out. The police also found that the victim had voluntarily accompanied the petitioner in executing the affidavits. She had purchased the stamp papers from the vendor after putting her signatures. She had married the petitioner in Guru Ravi Dass Temple and had signed the marriage certificate. The other persons were not involved in the commission of the offence. The petitioner and the victim had visited the hotel on 17.12.2023. The medical examination of the victim and the petitioner were conducted. The mobile phone has been sent to the Forensic Science Laboratory for retrieval of the data. Hence, the status report.

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Neutral Citation No. ( 2024:HHC:8003 )

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I have heard Mr. Prikshit Rathour, learned counsel

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for the petitioner and Ms. Ayushi Negi, learned Deputy Advocate General, for the respondent/State.

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Mr. Parikshit Rathour, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. The police found after investigation that many of the allegations of the victim are false. She was found to be major on the date of the incident. She had voluntarily executed the documents with the petitioner and her story that the documents were got executed fraudulently was not found to be correct. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail.

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Ms Ayushi Negi, learned Deputy Advocate General for the respondent/State submitted that the allegations in the FIR show that the petitioner had raped the victim. The allegations against the petitioner are heinous and he should not be released on bail. Hence, she prayed that the present petition be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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5 Neutral Citation No. ( 2024:HHC:8003 )

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7. The Hon’ble Supreme Court discussed the

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parameters for granting the bail in Bhagwan Singh v. Dilip Kumar, 2023 SCC OnLine SC 1059 as under: -

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12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;

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(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;

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(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

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(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.

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(d) Frivolity of 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 have an order of bail.

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13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu

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6 Neutral Citation No. ( 2024:HHC:8003 )

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Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts have been explained in the following words:

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“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

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( a ) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

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(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

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(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124] .)”

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A similar view was taken in State of Haryana vs

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Dharamraj 2023 SCC Online 1085, wherein it was observed:

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7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan

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Neutral Citation No. ( 2024:HHC:8003 )

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Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 . In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 , the relevant principles were restated thus:

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‘9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

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(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

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(ii) nature and gravity of the accusation;

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(iii) severity of the punishment in the event of conviction;

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(iv) danger of the accused absconding or fleeing, if released on bail;

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(v) character, behaviour, means, position and standing of the accused;

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(vi) likelihood of the offence being repeated;

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(vii) reasonable apprehension of the witnesses being influenced; and

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(viii) danger, of course, of justice being thwarted by grant of bail.’

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The present case has to be decided as per the

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parameters laid down by the Hon’ble Supreme Court.

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8 Neutral Citation No. ( 2024:HHC:8003 )

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The status report shows that many of the allegations

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made in the FIR were found to be incorrect after the investigation. The victim was not found to be minor as claimed by her. The documents were not forged by the petitioner but were prepared by the victim by going to the Stamp Vendor and the Notary. The victim had married the petitioner in a temple. He had also not taken her to the hotel on 23.12.2023 but she had accompanied the petitioner to the hotel on 17.12.2023 when she was major. All these findings of the investigation show that the involvement of the petitioner in the commission of the rape, prima facie is not established at this stage.

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The police have filed the charge sheet. The matter is listed for consideration of charge. It means that the investigation is complete and the custodial interrogation of the petitioner is not required. Keeping in view the nature of the allegations and the findings recorded during the investigation, the pre-trial detention of the petitioner is not justified.

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In view of the above, the present petition is allowed and the petitioner is ordered to be released on bail subject to his furnishing bail bonds in the sum of ₹ 50,000/- with one surety

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Neutral Citation No. ( 2024:HHC:8003 )

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in the like amount, to the satisfaction of the learned Trial Court.

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While on bail, the petitioner will abide by the following conditions:

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(i) The petitioner will not intimidate the witnesses nor will he influence any evidence in any manner whatsoever.

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(ii) The petitioner shall attend the trial and will not seek unnecessary adjournments.

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(iii) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of the intended visit to the concerned Police Station and the Court.

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(iv) The petitioner will furnish his mobile number, and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change.

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It is clarified that if the petitioner misuses the liberty

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or violates any of the conditions imposed upon him, the investigating agency shall be free to move the Court for cancellation of the bail.

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Neutral Citation No. ( 2024:HHC:8003 )

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The observations made hereinabove are regarding

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the disposal of this petition and will have no bearing, whatsoever, on the case's merits.

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The petition stands accordingly disposed of. A copy of this order be sent to the Superintendent, M.C. Jail Kanda, H.P. and the learned Trial Court by FASTER.

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A downloaded copy of this order shall be accepted by the learned Trial Court while accepting the bail bonds from the petitioner and in case, said Court intends to ascertain the veracity of the downloaded copy of the order presented to it, same may be ascertained from the official website of this Court.

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( Rakesh Kainthla) Judge

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6^th September, 2024 (saurav pathania )

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Digitally signed by KARAN SINGH GULERIA DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL KARAN PRADESH SHIMLA, Phone=e5d61f6599be410af7c5f0b57379e22587 8f23c9ea27b281046985b3b1fe0b75, PostalCode=171001, S=Himachal Pradesh, SINGH SERIALNUMBER=f72cf9165791d55ec9393752 91962d0d90d094876bd59591426c0b1ce651f01f , CN=KARAN SINGH GULERIA Reason: I have reviewed this document Location: GULERIA Date: 2024-09-06 13:14:38

Naresh Kumar v. State of Hp

Case brief

What is this about?

What did the court decide?

Naresh Kumar v. State of Hp

Case brief

What is this about?

What did the court decide?

What the court decided

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