Criminal Misc. No. M- 22693 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Criminal Misc. No. M- 22693 of 2009 Date of Decision:25.08.2009 Shekhar .....Petitioner Vs. State of Haryana .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. S.K. Garg Narwana, Advocate for the petitioner. Mr. J.S. Bedi, Advocate for the complainant. Mr. Amit Kaushik, Assistant Advocate General, Haryana. **** HARBANS LAL, J. This petition has been moved by Shekhar under Section 438 of the Code of Criminal Procedure seeking his anticipatory bail in case FIR No.207 dated 6.7.2009 under Section 376 of IPC at Police Station Hodal, District Faridabad. The facts in brief are that Neeru wife of Narender Kumar alias Naresh made statement before the Police that her husband Narender Kumar is doing the work of selling vegetables. He is a friend of Shekhar (referring to the petitioner). The petitioner used to visit their house. About one and a half years ago, when she was coming back from Mandir to her house, Shekhar stopped his vehicle in front of her. He said to her that `Bhabhi Ji' I will drop you at home. After believing his words, I sat on his vehicle. At that time, Shekhar gave me sweets to eat. After eating the same, I became unconscious. When I came to my senses, I found myself at an unknown Criminal Misc. No. M- 22693 of 2009 -2- place. Shekhar committed rape upon me and prepared a video clipping. On the basis of this video clipping, he started blackmailing me and used to call me time and again and exploited me sexually and also used to threaten me that if I disclosed this thing to anyone, then he would make this film public. The matter has reached at such a stage that Shekhar has prepared about 20 films and on the same, Shekhar himself and his some friends who are unknown to me raped me continuously for various days. On 2.7.2009, Shekhar came to my house and raped me. At the same time, my husband Narender Kumar reached the house. When he objected to this, he was man- handled. Now, I have disclosed all the secrets to my family members. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Learned counsel for the petitioner submitted with a good deal of force that there is a delay of 4 days in making the complaint by the prosecutrix to the police, though as per the prosecution version, all the facts were in the knowledge of husband of the prosecutrix. Her husband had already filed a complaint to the police. The delay creates a doubt in the story of prosecution and proves that this is the result of consultations and deliberations. Narender alias Naresh, husband of the prosecutrix had moved a complaint in writing to the police inter-alia alleging that on 2.7.2009 at about 8:00 P.M., after selling the vegetables, he was taking rest on the roof of his house, when he heard the screams of his wife, he ran and came down and saw that Shekhar was attempting to commit rape on his wife. Manish son of Suresh was helping Shekhar was catching hold of the legs of the prosecutrix and 3-4 unknown persons having country-made pistols tried to save his wife from their clutches, they mercilessly gave beatings to him and Criminal Misc. No. M- 22693 of 2009 -3- his wife and caused many injuries and threatened Narender and his wife to kill them. This undated application was moved by him on 2.7.2009, whereafter Mr. Harish Kumar, Advocate who is related to the husband of the prosecutrix came into their touch and on his advice, the present complaint was made and on the basis of the same, the present FIR has been registered. These facts prove that this FIR is nothing, but a bundle of concoctions. The place of occurrence is shown to be House No.49 of the prosecutrix and her husband Narender. Actually, the prosecutrix and her husband are living in joint family. The time of occurrence is shown to be 8:00 P.M. So, all the members of the family were in the house. Therefore, the present FIR is totally false and frivolous. It is further argued that on 2.7.2009, the petitioner left for Goverdhan at about 10:30 A.M from Hodal. He was going to Goverdhan, District Mathura for Giriraj Parikarma to attend the Mela celeberations, which is held once in an year. At about 11:00 A.M., his car slightly collided with a motor-cycle near Chatta Railway Crossing. The motor-cyclist fell on the kacha path, but was not injured. He man-handled the petitioner. The co-villagers of the motor-cyclist and other passers-by gathered there and they all went to police post where with the intervention of In-charge of Police Post and the aforesaid co-villagers, the dispute was settled amicably and a compromise was effected which is duly signed by the petitioner, Pappu and others. On 2.7.2009 after reaching Goverdhan, District Mathura, the petitioner fell ill due to abdominal pain. He got prepared his health card from the National Rural Health Mission, District Mathura at Goverdhan Hospital. On the said date, at 4:00 P.M., he was admitted in the Civil Hospital and got treated himself. He was discharged from Civil Hospital at Criminal Misc. No. M- 22693 of 2009 -4- 12:00 noon on 3.7.2009. That National Rural Health Mission Hospital issued such cards only at the time of mela. In Goverdhan, the petitioner met Ravi son of Tulsi, Devi son of Ras Bihari, and others. That in the inquiry held by Deputy Superintendent of Police, it is fully established that the relationship between the petitioner and the prosecutrix was with the sweet will/ free consent. Therefore, the question of preparing video clipping by the petitioner does not arise. The Deputy Superintendent of Police after detailed investigation did not say that the petitioner ever prepared video clipping of the prosecutrix. That actually the allegation of preparing video clipping is a manipulation and mischief of Mr. Harish Kumar, Advocate. That the motive to implicate the petitioner is that the husband of the prosecutrix had taken Rs.2,85,000/- as loan with interest at the rate of 12% per annum on 7.4.2009 from the petitioner. He was bound to return the same upto 30.6.2009 as per settlement. He failed to return it by the said date. On 1.7.2009, the petitioner threatened Narender alias Naresh that if the loan amount along-with interest is not returned within two days, the petitioner shall lodge FIR under Section 420 of IPC against him. As the financial position of Narender is very weak being a mere vegetable vendor, he apprehended that the petitioner shall lodge FIR against him and then he got registered this false case against the petitioner. To tide over these submissions, the learned State Counsel assisted by the learned counsel for the complainant maintained that even Deputy Superintendent of Police, Hodal in his report dated 11.6.2009 has said that in view of the facts revealed by the prosecutrix, the petitioner is a culprit and he be arrested at the earliest by collecting maximum evidence on the file and the video clipping be recovered and the parcels be sent to the Criminal Misc. No. M- 22693 of 2009 -5- Forensic Science Laboratory for analysis. It is further pressed into service that as a matter of fact, the petitioner has made an endeavour to set up a plea of alibi. It was not difficult for him to procure the evidence of such plea. This apart, the medico legal examination report reveals that Narender Kumar had sustained sufficient injuries. Thus keeping in view the gravity of the offence, no case is made out for grant of anticipatory bail as custodial interrogation of the petitioner is required. I have well considered the rival contentions. The thrust of arguments raised on behalf of the petitioner is that two versions are coming, i.e, one through the complaint made by the prosecutrix's husband and the other through the prosecutrix herself. In such cases, the version given out by the prosecutrix has to be taken into account. The offence of rape is not only against the victim rather it is against the society. There are specific allegations in the FIR that the petitioner repeatedly committed rape on the prosecutrix and prepared a video clipping. On the basis of such clipping, he started blackmailing her. He used to call her over and over again to exploit her sexually. He has prepared as many as 25 such films. This apart, as alleged, the petitioner along-with his friends who are unknown to the prosecutrix used to commit rape on her. The rival theory of defence is that as a matter of fact, the prosecutrix's husband had borrowed a loan of Rs.2,85,000/- with interest at the rate of 12% per annum from the petitioner and when the latter asked for its return from the former, then the Narender alias Naresh fearing registration of the case against him under Section 420 of IPC got the petitioner falsely involved in this case. In re: State of Rajasthan v. N.K., 2000 Criminal Law Journal 2205, it has been observed that a father would not ordinarily subscribe to a false story of Criminal Misc. No. M- 22693 of 2009 -6- sexual assault involving his own daughter and thereby putting at stake the reputation of the family and jeopardize the married life of the daughter. On the same analogy, husband of the prosecutrix cannot be expected to stake the honour of his wife by levelling false allegations of rape simply to get rid of return of alleged amount. The petitioner has not placed on record any document showing the transaction of alleged loan. As regards delay, it has been held in the aforesaid N.K.'s case, the delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case overboard. The State Counsel has also shown the medico- legal examination report of Narender Kumar husband of the prosecutrix. It discloses the history of assault. One abrasion was found on the right arm. One abrasion was observed on his left chest and multiple contusions were observed on left arm. The video clipping could be hardly manipulated. Mr. Harish Kumar, Advocate could not be expected to go into such manipulations. The Deputy Superintendent of Police in his aforesaid report has also held the petitioner to be a culprit. He has also given direction to recover the video clippings. Much capital has been sought to be made out of Annexure P.6, the medical certificate. This occurrence took place on 2.7.2009. As per this medical certificate, the petitioner was admitted in hospital for treatment on 2.7.2009 due to abdominal colic and was discharged on the next day. This certificate purport to have been issued by the National Rural Health Mission. In the present day situation, it is not difficult to procure such certificates. On the basis of this evidence, plea of alibi has been sought to be established. As per Annexure P4, the accident took place on the same day and the matter was compromised. Ostensibly, the allegations against the petitioner are of such a serious nature that his custodial interrogation is required. In re: State Criminal Misc. No. M- 22693 of 2009 -7- Represented By the C.B.I v. Anil Sharma, 1997(4) Recent Criminal Reports (Criminal) 268 (SC), it has been held as under:- “We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this, effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.” The provisions of Section 438 ibid cannot be invoked where custodial interrogation is necessary or may hamper proper investigation. A Court considering an application under this Section must strike a balance between the rights of an accused and the duties and obligation conferred upon an investigating agency. Considering the facts of the present case in Criminal Misc. No. M- 22693 of 2009 -8- the light of the provisions of Section 438 ibid, I am of the considered opinion that the present petition merits dismissal. Thus, this petition is dismissed. However, before parting with this order, it is clarified that the observations made herein in no manner shall be construed to mean an expression of opinion on merits of the case. August 25, 2009 ( HARBANS LAL ) renu JUDGE