2020 (10) TMI 1384 - HC - Indian Laws

Proclaimed offender granted anticipatory bail in rape case as Section 82 CrPC allows such applications

Mahender Kumar Versus State of Himachal Pradesh

The HC granted anticipatory bail to a proclaimed offender in a rape case. The Court held that Section 82 CrPC does not restrict proclaimed offenders from ... Seeking grant of anticipatory bail - rape - proclaimed offender - HELD THAT:- Section 82 of CrPC neither creates any riders nor imposes any restrictions in the filing of anticipatory bails by the proclaimed offenders. Even in LAVESH VERSUS STATE (NCT OF DELHI) [2012 (8) TMI 1190 - SUPREME COURT], while laying down the law on anticipatory bails to absconders, Hon’ble Supreme Court structured the pronouncement by the words, “Normally.” An analysis of entire allegations creates a possibility of the accused smitten by love, became melancholic, and left the area on June 20, 2013, i.e., before the registration of FIR dated July 19, 2013. Pre-trial incarceration needs justification depending upon the offense's heinous nature, terms of the sentence prescribed in the statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, criminal history of the accused, and doing away with the victim(s) and witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State. However, while deciding bail applications, the Courts should discuss evidence relevant only for determining bail - The conduct of the victim of accompanying the accused to her bedroom without any resistance, and subsequently without any reasons running away to the forest from the safe custody of her maternal uncle, and staying alone in a cave for three days, at least makes out a case for bail to the petitioner. An analysis of the evidence does not justify further incarceration of the accused, nor is it going to achieve any significant purpose, making out a case for bail. In case the petitioner finds the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even before the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition - This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency, from further investigation in accordance with law. Petition allowed. Issues Involved:1. Allegations of rape and threats by the petitioner.2. Investigation and procedural actions taken by the police.3. Petitioner's criminal history.4. Petitioner's application for anticipatory bail.5. Legal arguments regarding the entitlement to anticipatory bail for a proclaimed offender.6. Court's assessment of bail conditions and the petitioner's conduct.Issue-wise Detailed Analysis:1. Allegations of Rape and Threats by the Petitioner:The petitioner was accused of raping a 15-year-old girl on two occasions: once at her home in May 2013 and again in a forest on June 30, 2013. The victim alleged that the petitioner threatened her with dire consequences if she disclosed the incidents. She also stated that the petitioner wrote threatening letters to her, and due to fear, she ran away from her maternal uncle's house and stayed in a cave for three days.2. Investigation and Procedural Actions Taken by the Police:The police registered FIR No. 82 of 2013 under Sections 376, 506 of IPC, and Section 4 of the Protection of Children from Sexual Offences Act, 2012. Despite conducting an investigation, including a medical examination of the victim and recording her statement under Section 164 CrPC, the police failed to arrest the accused. Consequently, the court issued non-bailable warrants and declared the petitioner a proclaimed offender under Section 82 CrPC.3. Petitioner's Criminal History:The petition and status report did not reveal any prior criminal history of the petitioner.4. Petitioner's Application for Anticipatory Bail:The petitioner's counsel argued that pre-trial incarceration would cause grave injustice. The petitioner claimed that he and the victim were in love and that he left the area due to heartbreak upon learning about her affair with another person. He returned home due to the COVID-19 lockdown and learned about the FIR and his status as a proclaimed offender.5. Legal Arguments Regarding the Entitlement to Anticipatory Bail for a Proclaimed Offender:The Additional Advocate General contended that a proclaimed offender has no legal right to file for anticipatory bail. However, the Amicus Curiae argued that the court has jurisdiction to grant anticipatory bail in peculiar facts. The court referenced multiple Supreme Court judgments, including Lavesh v. State (NCT of Delhi) and State of Madhya Pradesh v. Pradeep Sharma, which generally deny anticipatory bail to absconders but noted that these rulings used the term 'Normally,' indicating exceptions could exist.6. Court's Assessment of Bail Conditions and the Petitioner's Conduct:The court considered the petitioner's claim of being unaware of the FIR until his return due to the lockdown. It noted that the circumstances were not normal and justified granting bail. The court emphasized a balanced approach to encourage proclaimed offenders to surrender and expedite justice. The court imposed stringent conditions for bail, including a personal bond of INR 1,00,000 and two sureties of INR 50,000 each, cooperation with the investigation, non-interference with witnesses, and adherence to all legal proceedings.Conclusion:The court granted anticipatory bail to the petitioner, subject to stringent conditions to ensure compliance and cooperation with the investigation. The decision balanced the need for justice with the petitioner's right to liberty, emphasizing the importance of procedural fairness and the unique circumstances of the case.