Allowed

Ritesh Kumar v. State of Hp

Himachal Pradesh HC2 Sept 2024CRMPM/1607/2024

Case brief

AI extract

What is this about?

The High Court allowed a bail petition for an offence under Section 376 IPC. The court observed the victim was major and older than the petitioner, the relationship was consensual, and the FIR was lodged after a significant delay following the relationship's breakdown. Bail was granted subject to conditions.

What did the court decide?

Petitioner released on bail subject to furnishing bail bonds of ₹ 50,000/- with one surety of like amount and adhering to specific conditions.

Ritesh Kumar Vs State of Hp — Pension and Retirement Benefits | Himachal Pradesh HC (2024)

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Neutral Citation No. ( 2024:HHC:7725 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MP (M) No. 1607 of 2024 Reserved on: 05.08.2024 Date of Decision: 02.09.2024

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Ritesh Kumar ...Petitioner Versus

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State of Himachal Pradesh ...Respondent

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Coram

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

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For the Petitioner	:	Mr. Surinder Saklani, Advocate.
For the Respondent	:	Mr. Ajit Sharma, Deputy Advocate General.

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Rakesh Kainthla, Judge

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The petitioner has %led the present petition for seeking regular bail. It has been asserted that the petitioner was arrested vide FIR No. 27 of 2024 dated 11.07.2024 for the commission of an o0ence punishable under Section 376 of IPC registered at Women Police Station, Dharamshala, District Kangra, H.P. The petitioner is innocent and he was falsely implicated. He is a respectable person having deep roots in the society. The petitioner has been in custody since 12.07.2024. No

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

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recovery is to be e0ected from him. He is pursuing his studies at CSIR, Palampur, District Kangra. The petitioner is a permanent resident of District Kangra and there is no likelihood of his jumping over the bail. He would abide by all the terms and conditions, which the Court may impose. Hence, the petition.

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The petition is opposed by %ling a status report asserting that the victim became friends with the petitioner. The petitioner proposed to marry her. The petitioner took her to a room in a hotel and tried to establish physical relations; however, the victim declined. Petitioner handed over gifts to her on 12^th February, 2022 and thereafter, raped her. The petitioner had sexual intercourse with the victim 7-8 times on the pretext of marriage. The petitioner was not adhering to his promise of marrying the petitioner. The police registered the FIR. The victim made a statement under Section 183(3)(1) of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) before the learned Magistrate. The police arrested the petitioner. The petitioner and the victim were subjected to a medical examination. The police seized a copy of the visitor register and the identi%cation documents handed over in the cafe and hotel. The challan is yet

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to be prepared. The petitioner has been in judicial custody since 09.08.2024. Hence, the status report.

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I have heard Mr. Surinder Saklani, learned counsel for the petitioner and Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent/State.

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Mr. Surinder Saklani, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. The allegations in the FIR show that the relationship between the parties, if any, was consensual and a false case of rape was made out. The petitioner is a student and his future would be spoiled in case of his continued detention. Hence, he prayed that the present petition be allowed and the petitioner be released on bail. He relied upon the judgments of Ansaar Mohammad versus the State of Rajasthan in Criminal Appeal No. 962 of 2022 decided on 14.07.2022 , Mandar Deepak Pawar vs State of Maharashtra and Anr in Criminal Appeal No. 442 of 2022 decided on 27.07.2022 , Yash Pal versus State of H.P, 2024:HHC:5405 and Mohan Lal Sharma versus State of H.P in Cr.MP(M) No. 2315 of 2024 decided on 08.12.2021 in support of his submission.

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Mr. Ajit Sharma, learned Deputy Advocate General for

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the respondent/State submitted that the petitioner had committed a heinous o0ence. He entered into a sexual relationship with the victim on the pretext of marriage without intending to ful%l the promise so made by him. The o0ence alleged against the petitioner is heinous and the petitioner should not be released on bail.

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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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The Hon’ble Supreme Court discussed the 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 pro%tably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu 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 o0ence. Any order devoid of such reasons would su0er 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 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 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 o%ence;

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(ii) nature and gravity of the accusation;

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Neutral Citation No. ( 2024:HHC:7725 )

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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 'eeing, 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 o%ence being repeated;

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(vii) reasonable apprehension of the witnesses being in'uenced; 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 parameters laid down by the Hon’ble Supreme Court.

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The victim made a statement under Section 180 of BNSS stating that the petitioner proposed to marry her but she stated that she was elder to him. This shows that the victim was not a minor who could have been misled by anyone. The status report shows the age of the petitioner as 30 years, which means that the victim is more than 30 years old. The prosecution case has to be considered keeping in view this aspect in mind.

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As per the victim, the relationship started in August/September 2020. The physical relationship commenced in June 2022. The matter was reported to the police on 11.07.2024 after a lapse of more than 2 years. The victim stated

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that the petitioner had promised to marry her in December 2022 but he blocked her thereafter. This shows that the victim was aware of the fact that he would not marry her in December 2022, however, she did not %le any complaint thereafter.

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A copy of the statement of the victim dated 02.02.2023 recorded by the police has also been %led, which shows that the victim was a friend of the petitioner. They wanted to marry but the petitioner’s family members refused to marry him to the victim. The victim %led a complaint that the petitioner should be called to the Police Station and he should be counselled. The petitioner visited the police station and the victim agreed to provide him one week to think over the matter.

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Signi%cantly, no complaint of sexual intercourse on the pretext of marriage was made on that day. It was laid down by the Hon’ble Supreme Court in Ansar Mohammad (supra) that where the victim aged 21 years was in relation with the accused and the FIR was lodged, when the relationship was not working, no case for the commission of the o0ence was punishable under Section 376 of IPC was made out.

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Similarly, it was held in Mandar Deepak Pawar (supra) that if the relationship was not working, it does not mean that it was a case of rape.

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The allegations in the FIR show that the victim had accompanied the petitioner to the hotel voluntarily. No complaint was ever made by her at the earliest point in time. She had made a complaint to the police earlier in which no allegations of rape were made. The victim is major and elder to the petitioner. Keeping in view all these considerations, the pretrial detention of the petitioner is not justi%ed.

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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 in the like amount, to the satisfaction of the learned Trial Court. 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 inFuence 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 %ve days from the date of the change.

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It is clari%ed 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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The observations made hereinabove are regarding 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, Central Jail, Dharamshala, District Kangra, H.P. and the learned Trial Court by FASTER.

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A downloaded copy of this order shall be accepted by

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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 oIcial website of this Court.

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( Rakesh Kainthla) Judge

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2^nd September, 2024 (saurav pathania )

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KARAN SINGH GULERIA

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Digitally signed by KARAN SINGH GULERIA DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone= e5d61f6599be410af7c5f0b57379e225878f23c9ea 27b281046985b3b1fe0b75, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER= f72cf9165791d55ec939375291962d0d90d094876 bd59591426c0b1ce651f01f, CN=KARAN SINGH GULERIA Reason: I am the author of this document Location:

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Date: 2024.09.02 15:17:14+05'30' Foxit PDF Reader Version: 2023.3.0

Ritesh Kumar v. State of Hp

Case brief

What is this about?

What did the court decide?

Ritesh Kumar v. State of Hp

Case brief

What is this about?

What did the court decide?

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