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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
VIVEK SINGH THAKUR, J.
Ivad - Petitioner
Versus
State of H.P. - Respondent
CRMPM No.716 of 2021
Decided On : 09-04-2021
Constitution of India, 1950 – Articles 21 and 22 – Code of Criminal Procedure, 1973 – Sections 164, 438 – Indian Penal Code, 1860 – Sections 363, 366A, 370(4), 506 and 120B – Anticipatory bail – Deputy Advocate General submits that, after notification of listing of present petition, he has called Investigating Officer from Police Station and, under instructions, he submits that petitioner is a co-accused in case FIR, registered in Police Station under Sections 363, 366A, 370(4), 506 and 120B of the Indian Penal Code wherein his brother-in-law Nazim @ Sameer and wife Nasrin are also accused and his wife, after remaining in police and judicial custody, has been ordered to be enlarged on bail today vide order passed in CRMPM and, till passing of said order, petitioner was absconding and present petition has been filed after enlargement of Nasrin on bail today – Whereas bail petition CRMPM, filed by Nazim @ Sameer, seeking anticipatory bail, has been rejected by this Court, for necessity of custodial interrogation – By way of this petition, petitioner is seeking anticipatory bail under Section 438 of the Code of Criminal Procedure in the aforesaid case FIR – Held, Where right to investigate, and to arrest and detain an accused during investigation, is provided under Cr.P.C., there are provisions of Articles 21 and 22 of the Constitution of India, guaranteeing protection of life and personal liberty as well as against arrest and detention in certain cases. – It is well settled that interference by the Court at the investigation stage, in normal course, is not warranted. – However, as discussed supra, Section 438 Cr.P.C. is an exception to general principle and at the time of exercising power under Section 438 Cr.P.C., balance between right of Investigating Agency and life and liberty of a person has to be maintained by the Courts, in the light of Fundamental Rights guaranteed under Articles 21 and 22 of the Constitution of India, but also keeping in mind interference by the Court directing the Investigating Officer not to arrest an accused amounts to interference in the investigation. – Though bail is rule and jail is exception. – However, at the same time, it is also true that even in absence of necessity of custodial interrogation also, an accused may not be entitled for anticipatory bail in all eventualities. – Based on other relevant factors, parameters and principles enumerated and propounded by Courts in various pronouncements, some of which have also been referred by counsel for CBI, anticipatory bail may be denied to an accused. – Requirement of custodial interrogation is not only reason for rejecting bail application under Section 438 Cr.P.C. – Nature, gravity and seriousness of offence, extent of involvement of petitioners, manner of commission of offence, antecedents of petitioners, possibility of petitioners fleeing from justice and impact of granting or rejecting the bail on society as well as petitioner, are also amongst those several relevant factors which may compel the Court to reject or accept the bail application under Section 438 Cr.P.C. – It is not possible to visualize all factors and enlist them as every case is to be decided in its peculiar facts and circumstances. – Wife of petitioner, Nasrin, is also a co-accused in the present case. – She was arrested and after remaining in police remand she remained in judicial custody and has been ordered to be enlarged on bail today morning (9.4.2021) at 10.00. – Present petition was though prepared but has been filed in the Registry today at around 11.00 a.m., after enlargement of the wife of petitioner on bail, meaning thereby that the petitioner was keeping an eye on the fate of the petition filed by his wife. – Court find that prayer for custodial interrogation of the petitioner is justified and thus acceptable. – Petition Disposed of
JUDGMENT :
VIVEK SINGH THAKUR, J.
1. Notice.
2. Mr. Raju Ram Rahi, learned Deputy Advocate General, appears, waves and accepts service of notice on behalf of the respondent-State.
3. Learned Deputy Advocate General submits that, after notification of listing of present petition, he has called the Investigating Officer from Police Station Sadar, District Shimla, Himachal Pradesh and, under instructions, he submits that petitioner is a co-accused in case FIR No.34 of 2021, dated 5.3.2021, registered in Police Station Sadar, Shimla, H.P., under Sections 363, 366A, 370(4), 506 and 120B of the Indian Penal Code (in short ‘IPC’), wherein his brother-in-law Nazim @ Sameer and wife Nasrin are also accused and his wife, after remaining in police and judicial custody, has been ordered to be enlarged on bail today (9.4.2021), vide order passed in CRMPM No.567 of 2021, and, till the passing of the said order, petitioner was absconding and present petition has been filed after enlargement of Nasrin on bail today. Whereas bail petition CRMPM No.620 of 2021, filed by Nazim @ Sameer, seeking anticipatory bail, has been rejected by this Court, for necessity of custodial interrogation.
4. ASI Nasib Singh, Investigating Officer, Police Station Sadar, Shimla, is present in person alongwith record and has filed Status Report, which is taken on record and placed on the file.
5. By way of this petition, petitioner is seeking anticipatory bail under Section 438 of the Code of Criminal Procedure (in short ‘Cr.P.C.’), in the aforesaid case FIR.
6. In the Status Report, it is stated that on 5.3.2021 victim, aged about 15 years, who is studying in Class 9th, had left her home at 9.30 a.m. to attend her school i.e. Sanatan Dharam Senior Secondary School, Ganj Bazaar, Shimla, and when she did not return home in the evening, her father, on inquiry, had received information that on that day students were not called in the school. With aforesaid details, father of the victim had approached Police Station Sadar, Shimla, with suspicion that someone had abducted her daughter after alluring and misleading her.
7. It is further stated in Status Report that on complaint of father of the victim, case under Section 363 IPC was registered and investigation was started. During investigation, location of mobile number of victim was found in Haryana leading to the clue to the police that victim was travelling towards Delhi. Whereupon, police party was sent to Delhi in search of victim and it was also found that victim was having too many talks on two mobile numbers (96398-21301 and 62382-27896), therefore, CDRs and location of those two numbers were also requisitioned.
8. Investigating Officer, on 6.3.2021, after reaching in Police Station Badarpur, Delhi, started investigation and found that last location of victim, on 5.3.2021 at about 8.19 p.m., was found at Panipat and thereafter her phone was found switched off. From CDRs of two mobile numbers, Investigating Officer had contacted on some mobile numbers, which were found in contact of these two mobile numbers and during this exercise, one mobile number 95606-42747 was found to be of one Jatin Malik, who, in response, informed the Investigating Officer that he is having a Maruti Car bearing registration No.DL9CAP-3819 and on 5.3.2021 he had gone to Ambala from Delhi to drop a passenger and at Ambala a girl had met him, who had disclosed that she was going to Delhi, whereupon, when he was taking that girl to Delhi alongwith him and had reached near Panipat, mobile phone of that girl had switched off and for that reason that girl had contacted someone through his (Jatin’s) mobile and the person, with whom she had talked, had disclosed his name to him (Jatin) as Zuber and further that Zuber had told him that one boy will send him location from mobile number 96671-56859 and had asked him (Jatin) to drop the victim on that location and thereafter on receiving location of Badarpur, Delhi from the aforesaid number, he had dropped vic
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