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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
P.S. Rana, J.
Nazakat Ali - Petitioner
Versus
State of H.P. - Non-Petitioner
Cr.MP(M) No. 1638 of 2015
Decided On : 10.12.2015
Anticipatory Bail - Information Technology Act - 66-E, 67-A - Sections 66-E, 67-A of the Information and Technology Act 2000 - The court discussed the heinous and grave nature of the allegations against the petitioner under the Information and Technology Act 2000, relating to violation of privacy and publishing material containing sexual acts in electronic form. The court referred to Section 77-B, which provides for imprisonment of three years and above as a cognizable offense, and Section 67-A, which prescribes punishment of five years and a fine extending to ten lacs on first conviction.
Fact of the Case:
The petitioner filed for anticipatory bail under Section 438 of the Code of Criminal Procedure 1973 in relation to FIR No. 380 of 2015 dated 1.11.2015 registered under Sections 66-E and 67-A of the Information and Technology Act 2000. The petitioner claimed innocence and being falsely implicated, while the police report detailed serious allegations against the petitioner and the nature of the offense.
Finding of the Court:
The court found that due to the heinous nature of the allegations and the initial stage of the investigation, it was not expedient in the ends of justice to grant anticipatory bail to the petitioner. The court also expressed apprehension that the petitioner might induce or threaten prosecution witnesses if granted bail at this stage.
Issues: The issues involved the determination of whether the bail application under Section 438 Cr.P.C. should be accepted and the consideration of factors for granting bail.
Ratio Decidendi: The court held that the nature and seriousness of the offense, character of the evidence, peculiar circumstances of the accused, possibility of the accused's presence at trial or investigation, reasonable apprehension of witness tampering, and the larger interests of the public or the State must be considered when granting bail. The court also emphasized the heinous nature of the allegations and the potential adverse effects of granting anticipatory bail at the initial stage of the investigation.
Final Decision: The anticipatory bail application filed by the petitioner under Section 438 Cr.P.C. was rejected. The court's observations were stated to strictly confine to the disposal of the bail application and not affect the merits of the case.
P.S. Rana, J.
Present petition is filed under section 438 Code of Criminal Procedure 1973 for grant of anticipatory bail relating to FIR No. 380 of 2015 dated 1.11.2015 registered under Sections 66-E and 67-A of the Information and Technology Act 2000 in Police Station Paonta Sahib District Sirmour H.P.
2. It is pleaded that petitioner has not committed any offence and he has been falsely implicated in the present case as counter blast to earlier FIR lodged by present petitioner. It is further pleaded that petitioner will abide by conditions imposed by the Court and will join investigation of the case. Prayer for acceptance of bail application is sought.
3. Per contra police report filed. As per police report FIR No. 380 of 2015 dated 1.11.2015 registered under Sections 66-E and 67-A of the Information and Technology Act 2000 in Police Station Paonta Sahib District Sirmour H.P. There is recital in the police report that complainant is residing in New Colony Dhaulakuan Tehsil Paonta Sahib District Sirmour H.P. with her husband and three children. There is further recital in the police report that petitioner Nazakat Ali is her neighbour and complainant and petitioner are known to each other for the last fifteen years. There is further recital in the police report that Kabiroodeen used to visit in the residential house of petitioner Nazakat Ali and there is further recital in the police report that wife of petitioner and Kabiroodeen have close relation with each other. There is further recital in the police report that complainant also became familiar with Kabiroodeen and relations of complainant developed with Kabiroodeen. There is further recital in the police report that petitioner fixed mobile camera and prepared MMS video of complainant and Kabiroodeen. There is further recital in the police report that petitioner wife Sanjida tried to blackmail the complainant and when complainant did not accepted the request of the petitioner wife Sanjida thereafter petitioner wife distributed CD of MMS in general public. Case was registered against petitioner and mobile of the complainant and petitioner wife took into possession vide seizure memos and statements of witnesses recorded. Two CDs were checked. Both mobiles and CDs have been sent for Forensic Science Laboratory Junga for chemical examination. There is further recital in the police report that petitioner wife prepared CD of absurd photo and thereafter distributed in the general public. Prayer for rejection of bail application sought.
4. Court heard learned Advocate appearing on behalf of the petitioner and learned Additional Advocate General appearing on behalf of the State and also perused the record carefully.
5. Following points arise for determination in this bail application:-
Point No. 1
Whether bail application filed under Section 438 Cr.P.C. is liable to be accepted as mentioned in memorandum of grounds of bail application?
Point No. 2
Final Order.
Findings on Point No.1with reasons
6. Submission of learned Advocate appearing on behalf of the petitioner that petitioner is innocent and did not commit offence under Sections 66-E and 67-A of the Information Technology Act 2000 cannot be decided at this stage. Same fact will be decided when case shall be disposed of on merits by learned trial Court after giving due opportunities to both the parties to lead evidence in support of their case.
7. Another submission of learned Advocate appearing on behalf of the petitioner that any condition imposed by Court will be binding upon the petitioner and on this ground anticipatory bail be allowed is rejected being devoid of any force for the reasons mentioned hereinafter. At the time of granting bail following factors are considered. (i) Nature and seriousness of offence (ii) The character of the evidence (iii) Circumstances which are peculiar to the accused (iv) Possibility of the presence of the accused at the trial or investigation (v) Reasonable apprehension of witnesses being tampere
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