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2019 Supreme(HP) 385
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CHANDER BHUSAN BAROWALIA, J.
Guru Dutt - Appellant
Versus
State of Himachal Pradesh - Respondent
Criminal Miscellaneous Petition No. 806 of 2019
Decided on : 27-05-2019
Advocate Appeared:
Praveen Chandel, Adv., S.C. Sharma, Adv., Shiv Pal Manhans, Adv., Raju Ram Rahi, Adv.
Judicial discretion in granting bail based on the petitioner's cooperation in the investigation and the likelihood of tampering with evidence or fleeing from justice.
Headnote:
BAIL APPLICATION - Section 438 of the Code of Criminal Procedure - Release on bail in case of arrest under Section 67 IT Act and Section 509 IPC
Fact of the Case:
The petitioner filed a bail application under Section 438 of the Code of Criminal Procedure for release in the event of his arrest in a case involving allegations of making indecent and inappropriate comments on Facebook concerning the prosecutrix.
Finding of the Court:
The court found that considering the nature of the offence, the manner in which it was alleged to have been committed, and the petitioner's cooperation in the investigation, he was neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. Therefore, the court granted bail to the petitioner.
Issues: Bail application under Section 438 of the Code of Criminal Procedure, allegations of making indecent and inappropriate comments on Facebook, potential tampering with evidence, and fleeing from justice.
Ratio Decidendi: The court exercised judicial discretion in favor of the petitioner based on his cooperation in the investigation and the overall material on record, finding that he was not likely to tamper with evidence or flee from justice.
Final Decision: The petitioner was granted bail on furnishing a personal bond and surety, subject to conditions including joining the investigation, not leaving India without court permission, and refraining from influencing potential witnesses.
JUDGMENT :
CHANDER BHUSAN BAROWALIA, J.
1. The present bail application has been moved by the petitioner under Section 438 of the Code of Criminal Procedure for releasing him on bail, in the event of his arrest, in case FIR No. 50 of 2019, dated 24.03.2019, under Section 67 IT Act and Section 509 IPC, registered in Police Station Ghumarwin, District Bilaspur, H.P.
2. As per the averments made in the petition, the petitioner is innocent and has been falsely implicated in the present case. He is resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so he may be released on bail.
3. Police report stands filed. As per the prosecution story, on 24.03.2019 police received a complaint made by the prosecutrix (name withheld), wherein she stated that on 23.03.2019, at about 11:30 p.m., the petitioner made indecent and inappropriate comments concerning the prosecutrix on facebook. As per the prosecutrix, the petitioner made humiliating comments on facebook qua the prosecutrix and thus caused insult to the modesty of the prosecutrix. On the basis of the complaint, so made by the prosecutrix, police registered a case and investigation ensued. Statement of the prosecutrix was recorded under Section 164 Cr.P.C. and it was unearthed that facebook account of the petitioner was being operated from Dubai. Police recorded the statements of the witnesses, who read the lewd and insulting comments of the petitioner. On 10.05.2019 the petitioner joined the investigation and as per him when he was in Dubai his facebook ID was made by his friend, password whereof is not known to him. When he returned India his SIM and mobile phone had been taken back by the company where he used to work. As per the petitioner, there is a dispute qua the path with the family of the prosecutrix and a case has been registered. He further divulged that when he came to know that his father has been beaten up, he made such comments on facebook. Lastly, the prosecution has prayed that the petitioner if enlarged on bail, may tamper with the prosecution evidence and may also flee from justice, so the application may be dismissed.
4. I have heard the learned Counsel for the petitioner, learned Additional Advocate General for the State and gone through the record, including the report of the police, carefully.
5. The learned Counsel for the petitioner has argued that the petitioner is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, as he is resident of the place, so he may be released on bail. He has further argued that the petitioner is joining and co-operating in the investigation. Conversely, learned Additional Advocate General, has argued that the petitioner made inappropriate and insulting comments on facebook concerning the prosecutrix and now in case he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice. He has further argued that at this stage the petitioner may not be released on bail and his application be dismissed.
6. At this stage, considering the nature of the offence, the manner in which the offence is alleged to have been committed, the fact that the petitioner is joining and co-operating in the investigation and he is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, as he is resident of the place, and also considering the overall material, which has come on record, and without discussing the same at this stage, this Court finds that present is a fit case where the judicial discretion to admit the petitioner on bail, in the event of his arrest, is required to be exercised in his favour.
Under these circumstances, it is ordered that the petitioner be released on bail, in the event of his arrest, in case FIR No. 50 of 2019, dated 24.03.2019, under Section 67 IT Act and Section 509 IPC, registered in Police Station Ghumarwin, District Bilaspur, H.P., o
