1. Bail Petitioner, namely Dev Raj, has come up before this Court seeking pre-arrest bail, under Section 438 of the Code of Criminal Procedure [hereinafter referred to as 'Cr.P.C.'] originating from FIR No. 11/ 2024, under Sections 376 and 506 of the Indian Penal Code [hereinafter referred to as 'IPC'] registered at Mahila Police Station Mandi, Tehsil Sadar, District Mandi [H.P.]

FACTUAL MATRIX

2. The case set up by Mr. Jia Lal Bhardwaj, Senior Advocate, assisted by Mr. Anil Kumar, Advocate, is that a case under Sections 376 & 506 of the Indian Penal Code, originating from FIR No. 11/2024, has been registered against the bail petitioner alleging him to have committed the rape with the complainant-victim [X] and has extended threats to the aforesaid complainant- victim [X]. In Paras 4 to 7 of the bail application, it is stated that the allegations leveled against the bail petitioner are false and baseless. It is also averred that he has been falsely implicated in the case. It is also stated that he has not committed any offence and nothing has to be recovered from the bail petitioner. It is further averred that the bail petitioner is ready to join the investigation as directed by this Court. It is further averred that the bail petitioner is a resident of Himachal Pradesh and belongs to a respectable family. In addition to this, the bail petitioner has given an undertaking that he shall abide by all the terms and conditions as may be imposed by this Court.

STAND OF STATE AUTHORITIES

3. Upon issuance of notice by this Court on 16.03.2024, the State Authorities have filed a response/status report and keeping in view the averments made in the bail petition, the interim pre-arrest bail was granted in favour of the bail petitioner, till next date of hearing.

3(i). The matter was then listed on 27.03.2024, when the State Authorities have filed the Status Report dated 27.03.2024, on the instructions of the In-charge Women Police Station, Mandi. The matter was then listed on 10.04.2024, on which date, the Fresh Status Report dated 10.04.2024 was filed and with the consent of the parties, the matter was taken up for hearing at this stage.

3(ii). A perusal of the status report dated 27.03.2024 and 10.04.2024 reveal that the stand taken by the State Authorities-Police Authorities are pari materia.

3(iii). A perusal of the Status Reports, reveal the prosecution story, that the complainant-victim [X] was doing her internship in DDMA Kullu. However, on 11.03.2024, she came from Kullu to stay with her cousin at Mangwai (Mandi) so as to undertake the CUET- PG paper at Nerchowk. The status report further reveals that on 12.03.2024, at around 12:00 noon, the complainant-victim [X], started from her cousin's house towards bus-stand, Mandi for boarding a bus for Kullu and while she had reached Vishal Mega Mart, on way from Mangwai to bus-stand Mandi, she was stopped by an unknown person who was sitting in the Alto Car, who enquired about her father's posting. The complainant-victim [X] feigned ignorance but, after being told by the bail petitioner that she knows her family and he would drop her at the bus-stand.

3(iv). On this assurance, the complainant-victim [X] boarded the car but, instead of taking the car towards bus-stand, the bail petitioner moved towards another link road on Mandi-Joginder Nagar road and thereafter, the bail petitioner stopped the vehicle on the link road and tried to imitate the complainant-victim [X] by asking her hand, by stating that he knows palmistry and would predict her future. The complainant-victim [X] resisted the aforesaid acts of the bail petitioner, when, the bail petitioner snatched the cell-phone of the complainant-victim [X]. Thereafter, the bail petitioner turned the vehicle towards Kullu and he touched the private part of the complainant-victim [X]. The complainant-victim [X] again opposed this unwarranted act on the part of the bail petitioner by trying to open/jump from the vehicle but the bail petitioner threatened the complainant-victim [X] that he would rape her in case of any revolt or resistance. The things did not end here. Thereafter, on way towards Kullu, when, the vehicle reached near Pandoh, the bail petitioner drove the vehicle on the link road towards Chail Chowk. Since, the aforesaid link road was a stand alone road, the bail petitioner, inserted his finger in private part of the complainant-victim [X]. After indulging in these unwarranted acts, the bail petitioner threatened the complainant-victim [X] that in case she disclosed anything to anyone then it is the complainant-victim [X] who would be a sufferer. Left with no option, the complainant-victim [X] out of fear, despite resistance was forced to travel in the aforesaid car owned by the bail petitioner till she reach the place, at Aut [District Kullu], where the complainant-victim [X] was dropped by the bail petitioner. On reaching Aut, the bail petitioner, boarded a bus from Aut to Kullu and on reaching her room at Kullu, she disclosed the sequence of events to her landlord who then rang up to Project Coordinator of DDMA Kullu where the complainant-victim [X] was undergoing here internship and thereafter, the FIR was registered against the bail petitioner.

3(v). Status Reports further narrate that during investigation the statement of the complainant-victim [X], was recorded under Section 164 Cr.P.C. before the Learned Jurisdictional Magistrate on 15.03.2024 whereby the complainant-victim [X] reiterated the sequence of events whereby the bail petitioner had initially touched the private part, which was resisted by the complainant-victim [X]. Thereafter, the bail petitioner touched the breast of the complainant-victim [X], which was again resisted by the complainant-victim [X]. Ultimately, the bail petitioner inserted his finger in the private part of the complainant-victim [X], as referred to above.

3(vi). Status reports further reveal that even the CCTV Footage, procured by the Investigating Agencies corroborates that the complainant-victim [X] had recognized the car, which was owned by bail petitioner [Dev Raj].

3(vii). Status reports reveal that the bail petitioner has a blemished past conduct as he had been involved in ten criminal cases, out of which in four cases he has been acquitted; in other four cases the matter has been compromised and two cases are still pending as on day. The Status reports, specifically point out that two cases relate to offence under Section 354-A and Section 376, in which the bail petitioner has roped in women, by following some modus operandi as in this case. Even, the similarity of modus operandi, which is akin to this case, has also been reflected in the Status reports.

3(viii). In concluding Paras of the Status reports, the State Authorities have objected to the continuation of bail on the ground, that the FIR dated 14.03.2024 was registered against an unknown person and since the complainant-victim [X] does not know about the identity and the whereabouts of the accused; therefore the arrest of the bail petitioner is necessary so as to undertake the Test Identification Parade (TIP) of the bail petitioner. Other objections with respect to the likelihood of the bail petitioner being indulged in similar activities, likelihood of fleeing away, tampering with the evidence in the witnesses has also been spelt out besides other points in the status reports.

It is in this background that the prayer for denying bail was made by the State Authorities.

4. Heard Mr. Jia Lal Bhardwaj, Senior Advocate, assisted by Mr. Anil Kumar, Advocate and Mr. Prashant Sen, Learned Deputy Advocate General, for the Respondent.

5. Before dealing with the present application, it is necessary to take note of the provisions of Section 438 of Cr.P.C. and Sections 375, 376, 503 & 506 of IPC, which read as under:-

"Section 438 Cr.P.C.:

Direction for grant of bail to person apprehending arrest:

(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter-alia, the following factors, namely-

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) the possibility of the applicant to flee from justice; and

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail;

(v) Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this Sub-Section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

(1A) Where the Court grants an interim order under Sub-Section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.

(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

(2) When the High Court or the Court of Session makes a direction under subsection (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including-

(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

(iii) a condition that the person shall not leave India without the previous permission of the Court;

(iv) such other condition as may be imposed under Sub-Section (3) of section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-Section (1).

(4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code."

"Section 375 Indian Penal Code:

Rape. - A man is said to commit "rape" if he -

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:-

First.-Against her will.

Secondly.-Without her consent. Thirdly.-With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.-With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.-With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.-With or without her consent, when she is under eighteen years of age.

Seventhly.-When she is unable to communicate consent.

Explanation 1.-For the purposes of this section, "vagina" shall also include labia majora.

Explanation 2.-Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1.-A medical procedure or intervention shall not constitute rape.

Exception 2.-Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."

"Section 376 Indian Penal Code: Punishment for rape. - (1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which 3 [shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine].

(2) Whoever,-

(a) being a police officer, commits rape -

(i) within the limits of the police station to which such police officer is appointed; or

(ii) in the premises of any station house; or

(iii) on a woman in such police officer's custody or in the custody of a police officer subordinate to such police officer; or

(b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or

(c) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or

(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or

(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or

(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or

(g) commits rape during communal or sectarian violence; or

(h) commits rape on a woman knowing her to be pregnant; or

(j) commits rape, on a woman incapable of giving consent; or

(k) being in a position of control or dominance over a woman, commits rape on such woman; or

(l) commits rape on a woman suffering from mental or physical disability; or

(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or

(n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.

Explanation.-For the purposes of this sub- section,-

(a) "armed forces" means the naval, military and air forces and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government;

(b) "hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;

(c) "police officer" shall have the same meaning as assigned to the expression "police" under the Police Act, 1861 (5 of 1861);

(d) "women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widow's home or an institution called by any other name, which is established and maintained for the reception and care of women or children.

[(3) Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

"Section 503 Indian Penal Code:

Criminal intimidation. - Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.

Explanation.-A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.

"Section 506 Indian Penal Code:

Punishment for criminal intimidation.- Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;

If threat be to cause death or grievous hurt, etc.-

and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or [imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."

6. Notably, the claim of the suspect-accused for pre-arrest or post arrest bail-regular bail is to be examined/tested within the parameters prescribed of the Code of Criminal Procedure and also the broad para- meters mandated by the Hon'ble Supreme Court regulating grant of bail in Gurbaksh Singh Sibbia versus State of Punjab (1980) 2 SCC 565, Ram Govind Upadhyay versus Sudarshan Singh (2002) 3 SCC 598; Kalyan Chandra Sarkar versus Rajesh Ranjan, (2004) 7 SCC 528; Prasanta Kumar Sarkar versus Ashish Chatterjee, (2010) 14 SCC 496; reiterated in P. Chidambaram versus Directorate of Enforcement, (2019) 9 SCC 24, mandating that the bail {anticipatory or regular} is to be granted where the case is frivolous or groundless and no prima facie or reasonable grounds exists which lead to believe or point out towards accusation; and these parameters for regular bail have been reiterated in Sushila Aggarwal versus State-NCT Delhi, (2020) 5 SCC 01.

6(i). While dealing with the case for grant of bail, the three judges bench of Hon'ble Supreme Court, after reiterating the broad parameters, has held in Deepak Yadav versus State of Uttar Pradesh, (2022) 8 SCC 559, in Para 25 that the nature of the crime has a huge relevancy, while considering claim for bail.

6(ii). In the case of Ansar Ahmad versus State of Uttar Pradesh, the Hon'ble Supreme Court had expanded the horizon of the broad parameters, which are to be primarily taken into account, for considering the claim for regular bail or anticipatory bail as under:

"11. Mr. R. Basant, the learned Senior Counsel appearing for one of the private respondents that the Court while granting bail is not required to give detailed reasons touching the merits or de-merits of the prosecution case as any such observation made by the Court in a bail matter can unwittingly cause prejudice to the prosecution or the accused at a later stage. The settled proposition of law, in our considered opinion, is that the order granting bail should reflect the judicial application of mind taking into consideration the well-known parameters including:

(i) The nature of the accusation weighing in the gravity and severity of the offence;

(ii) The severity of punishment;

(iii) The position or status of the accused, i.e. whether the accused can exercise influence on the victim and the witnesses or not;

(iv) Likelihood of accused to approach or try to approach the victims/ witnesses;

(v) Likelihood of accused absconding from proceedings;

(vi) Possibility of accused tampering with evidence;

(vii) Obstructing or attempting to obstruct the due course of justice;

(viii) Possibility of repetition of offence if left out on bail;

(ix) The prima facie satisfaction of the court in support of the charge including frivolity of the charge;

(x) The different and distinct facts of each case and nature of substantive and corroborative evidence.

12. We hasten to add that there can be several other relevant factors which, depending upon the peculiar facts and circumstances of a case, would be required to be kept in mind while granting or refusing bail to an accused. It may be difficult to illustrate all such circumstances, for there cannot be any straight jacket formula for exercising the discretionary jurisdiction vested in a Court under Sections 438 and 439 respectively of the Cr.PC, as the case may be."

7. In normal parlance, the principle of law is that bail is a rule and jail is an exception. However, this Court is conscious of the fact that the power under Section 438 is an extraordinary power and the same has to be exercised sparingly. It is trite law that while considering the prayer for bail {pre-arrest bail or regular bail], the formation of prima facie opinion is to gathered as to whether reasonable grounds exist pointing towards accusation or whether the accusation is frivolous and groundless with the object of either injuring or humiliating or where a person has falsely been roped in the crime needs to be tested in the background of the self-imposed restrains or the broad parameters mandated by law, as referred to herein above.

8. This Court is also conscious of the fact that as per the mandate of law, in Criminal Appeal No. 3840 of 2023, titled as Saumya Churasia versus Directorate of Enforcement, decided on 14.12.2023, while considering the prayer for bail, though a Court is not required to weigh the evidence collected by the Investigating Agency meticulously, nonetheless, the Court should keep in mind the nature of accusation, the nature of evidence collected in support thereof, the severity of punishment prescribed for alleged offences, the character of the accused, the circumstances which are peculiar to the accused, the reasonable possibility of securing the presence of the accused during trial, reasonable apprehension of the witnesses being tampered with, the large interests of the public/state.

In this background, while testing the claim for bail, the Court is required to form a prima-facie opinion in the context of the broad-parameters referred to above, without delving into the evidence on merits, as it may tend to prejudice the rights of the accused as well as the prosecution.

ANALYSIS OF THE CLAIM IN THE INSTANT CASE

9. After taking into account the entirety of the facts and circumstances, the statutory provisions, as referred to above, the facts borne out from the Status Reports [based on statements recorded under Section 161 Cr.P.C. and statement recoded under Section 164 Cr.P.C., and the averments therein, the MLC and other details contained therein, this Court is of the considered view that the bail petitioner is not entitled to further concession or for continuance of the concession of enlargement on bail, at this stage, for the following reasons:-

9(i). The material on record points out towards prima facie accusation against the bail petitioner. Moreover, the reasonable grounds for believing the accusation against the bail petitioner are writ large, in the instant case.

9(ii). A perusal of the status reports including the statements made under Section 161 Cr.P.C. and the statement recoded under Section 164 Cr.P.C. before the Jurisdictional Magistrate on 15.03.2024, reveal that the bail petitioner had resorted to unwarranted acts with the complainant-victim [X], initially by touching her private part; then in touching her breast and then by inserting his finger in private part of the complainant-victim [X]. Even the CCTV footages, as gathered by the police, during investigation, on 16.03.2024, corroborate the prima facie accusation against the bail petitioner whereby, the complainant-victim [X] has recognized the car in question. Thus, once the bail petitioner, has resorted to unwarranted acts, which come within the ambit of Section 375(b) of IPC, therefore, the plea of the bail petitioner that he has been falsely roped in and he has no connection with the alleged offence, is without any merit, at this stage.

So far as the offence under Section 503 and 506 of IPC is concerned, this Court is of the considered view, that the prima facie accusation and reasonable grounds exist against the bail petitioner, whereby, the bail petitioner, had threatened the complainant-victim [X] with dire consequences of rape, in case, she resisted and disclosed such events to any other person. Thus, the intimidation and threatening(s) given by the bail petitioner to the complainant-victim [X], points out towards the accusation against the bail petitioner.

The bail petitioner has committed the offence against an unknown woman i.e. complainant-victim [X] and has onslaught the dignity of the womanhood [as detailed in Para 3(v) and Para 10(ii) supra] and has even suppressed the attempts made to resist the unwarranted acts, by threatening the victim-complainant [X] with further injuries by way of rape, reflects the mind- set of the bail petitioner leading towards the heinous offence and therefore, this Court is of the considered view that the bail petitioner is not entitled for further continuance/enlargement on bail.

9(iii). The Status Reports indicate that the bail petitioner has been involved in ten criminal cases. Out of the ten cases, the bail petitioner has been acquitted in four cases and in four cases the matter has been compromised and in two other cases the trial is pending. A perusal of the two cases, relating to Section 354-A & Section 376 of IPC spell out that the bail petitioner has adopted similar modus-operandi in the year 2017 and 2019 as has been done in the instant case as referred to above.

Once, the bail petitioner has blemished records and has past criminal history-antecedents, therefore, the petitioner is not entitled for enlargement on bail or extension of interim pre-arrest bail, in larger societal interest, when, the bail petitioner is under surveillance with the police and despite that he has indulged in such offences.

While dealing with the issue regarding the criminal antecedents or criminal history or past conduct while granting bail the three judge Bench of the Hon'ble Supreme Court in  (2022) 8 Supreme Court Cases 559, titled as Deepak Yadav versus State of Uttar Pradesh and Another, has held as under:-

"33.3 Where the past criminal record and conduct of the accused is completely ignored while granting bail.

38.1 Respondent 2/accused has been named in the FIR bearing Crime Case no.16 of 2021 lodged under Sections 302 and 34 IPC and was the main assailant who had a weapon in his hand.

41. Grant of bail to Respondent 2/accused only on the basis of parity shows that the impugned order passed by the High Court suffers from the vice of non-application of mind rendering it unsustainable. The High Court has not taken into consideration the criminal history of Respondent 2/accused, nature of crime, material evidence available, involvement of Respondent 2/accused in the said crime and recovery of weapon from his possession."

The Hon'ble Supreme Court in Sunil Kumar versus State of Bihar and another (2022) 3 SCC 245, that the past criminal history/antecedents disentitles an accused to be enlarged on bail, as under:-

"18. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and more particularly considering the fact that Respondent No. 2 is a history-sheeter and is having a criminal antecedent and is involved in the double murder of having killed the father and brother of the informant and the trial of these cases is at the crucial stage of recording evidence and there are allegations of pressurizing the informant and the witnesses, the impugned judgement and order passed by the High Court releasing Respondent No. 2 on bail is absolutely unsustainable and the same cannot stand. The High Court has not at all considered the gravity, nature and seriousness of the offences alleged."

Likewise in the case of Bharwad Santoshbhai Sondabhai versus State of Gujarat and another2023 SCC OnLine SC 1092, the Hon'ble Supreme Court has held as under:

8. In the present case, after repeated directions, an affidavit has finally been filed by the respondent No. 1-State, listing the criminal antecedents of the respondent No. 2 in Para 5 which is extracted herein below:-

Sr. No	Details of FIRs
1.	FIR No. 11216025220323 of 2022 registered at Santej Police Station, Gandhinagar u/s 385, 147, 148, 323, 379, 504, 506(2), 511 r/w 120(B) of Penal Code, 1860.
2.	FIR No.11216008210402 of 2021 registered under Section 65(A)(A), 66 (1)(B) of Gujarat Prohibition  Act,  1949  at  Sectior-7  Police Station Gandhinagar.
3.	FIR No. 11192011200478 of 2020 registered at  Bhopal  Police  Station,  Ahmedabad Rural  u/s  188  of  Penal  Code,  1860  and 113 of Gujarat Police Act.

12. For the reasons noted above, we are of the firm opinion that the respondent No. 2 was not entitled to any relief in the instant case. Respondent No. 2 had remained in custody for barely six months (23rd September, 2021 to 18th February, 2022) before he was released on bail in respect of a serious offence under Section 302 of the IPC. His antecedents also indicate his propensity towards committing crime. Accordingly, the impugned order dated 18th February, 2022 is quashed and set-aside and respondent No. 2 is directed to surrender forthwith before the trial Court."

In view of the mandate of the Hon'ble Supreme Court referred to above, once the past incident and past history of the bail petitioner is blemished, whose modus operandi is to initially allure, then to entice woman and then in giving effect to his unwarranted designs, as has been reiterated in instant case, is sufficient to deny the concession of enlargement on bail to the bail petitioner, at this stage.

9(iv). The bail petitioner is not entitled for further enlargement on bail, for the reason, that the bail petitioner had committed an offence against the unknown woman i.e. the complainant-victim [X]. The Status Report indicates that in order to enable the State to proceed further in the investigation, the State Authorities require the arrest of the bail petitioner, so as to resort to undertake, the Test Identification Parade under Section 54-A Cr.P.C. in accordance with law.

While dealing with concept of Section 54-A Cr.P.C., i.e. the Test Identification Parade of person arrested, the Hon'ble Supreme Court has mandated that the Test Identification Parade is a part of investigation and the resort to TIP is the statutory prerogative of the Investigating Agency. It is further mandated that the object of Test Identification Parade is to concern the offender/arrested person with the witnesses and to find out whether such offender/arrested person/suspect is the person who committed the crime or not; and to enable the Investigating Agencies to come to a conclusion that their investigation is proceeding in the right direction; and also to enable them to work out/decide as to who are the persons who are to be examined as witnesses for the crime or not.

In this context, reference is placed on 2023 SCC OnLine SC 1061, titled as Mukesh Singh versus State (NCT of Delhi), decided on 24.08.2023, which read as under:-

"34. This Section is restricted to identification of persons only. So this Section has no application where the question of identification of articles arises. TIP is part of investigation and the investigation of a case is to be conducted by the investigating agency and it is their statutory prerogatives. There was no statutory provision authorizing the accused to pray for placing him in the test parade. Some High Courts approved this right, while some other High Courts took a contrary view. In State of Uttar Pradesh v. Rajju, (1971) 3 SCC 174: AIR 1971 SC 708, this Court observed, "If the accused felt that the witnesses would not be able to identify them-they should have requested for an identification parade." This observation indirectly approves the right to ask for test parade by the accused. In another case, the accused voluntarily accepted the risk of being identified in a parade but he was denied that opportunity. This Court observed that this was an important point in his favour - Shri Ram v. State of U.P., (1975) 3 SCC 495.

36. Thus we are of the view that after the introduction of Section 54A in the CrPC referred to above, an accused is under an obligation to stand for identification parade. An accused cannot resist subjecting himself to the TIP on the ground that he cannot be forced or coerced for the same. If the coercion is sought to be imposed in getting from an accused evidence which cannot be procured save through positive volitional act on his part, the constitutional guarantee as enshrined under Article 20(3) of the Constitution will step in to protect him. However, if that evidence can be procured without any positive volitional evidentiary act on the part of the accused, Article 20(3) of the Constitution will have no application. The accused while subjecting himself to the TIP does not produce any evidence or perform any evidentiary act. As explained very succinctly by the learned Judges of the Calcutta High Court as above, it may be a positive act and even a volitional act, but only to a limited extent, when the accused is brought to the place where the TIP is to be held. It is certainly not his evidentiary act. The accused concerned may have a legitimate ground to resist facing the TIP saying that the witnesses had a chance to see him either at the police station or in the Court, as the case may be, however, on such ground alone he cannot refuse to face the TIP. It is always open for the accused to raise any legal ground available to him relating to the legitimacy of the TIP or the evidentiary value of the same in the course of the trial. However, the accused cannot decline or refuse to join the TIP.

44. A three-Judge Bench of this Court in the case of Rajesh v. State of Haryana, (2021) 1 SCC 118, had the occasion to consider (i) the purpose of conducting a TIP, (ii) the source of the authority of the investigator to do so, (iii) the manner in which these proceedings should be conducted, (iv) the weight to be ascribed to identification in the course of a TIP, and (v) the circumstances in which an adverse inference can be drawn against the accused who refuses to undergo the process. After due consideration of the aforesaid, this Court summarised the principles as follows:-

"43.1 The purpose of conducting a TIP is that persons who claim to have seen the offender at the time of the occurrence identify them from amongst the other individuals without tutoring or aid from any source. An identification parade, in other words, tests the memory of the witnesses, in order for the prosecution to determine whether any or all of them can be cited as eyewitness to the crime.

43.2 There is no specific provision either in CrPC or the Evidence Act, 1872 ("the Evidence Act") which lends statutory authority to an identification parade. Identification parades belong to the stage of the investigation of crime and there is no provision which compels the investigating agency to hold or confers a right on the accused to claim a TIP.

43.3 Identification parades are governed in that context by the provision of Section 162 CrPC.

43.4 A TIP should ordinarily be conducted soon after the arrest of the accused, so as to preclude a possibility of the accused being shown to the witnesses before it is held.

43.5 The identification of the accused in court constitutes substantive evidence.

43.6 Facts which establish the identity of the accused person are treated to be relevant under Section 9 of the Evidence Act.

43.7 A TIP may lend corroboration to the identification of the witness in court, if so required.

43.8 As a rule of prudence, the court would, generally speaking, look for corroboration of the witness' identification of the accused in court, in the form of earlier identification proceedings. The rule of prudence is subject to the exception when the court considers it safe to rely upon the evidence of a particular witness without such, or other corroboration.

43.9 Since a TIP does not constitute substantive evidence, the failure to hold it does not ipso facto make the evidence of identification inadmissible.

43.10 The weight that is attached to such identification is a matter to be determined by the court in the circumstances of that particular case.

43.11 Identification of the accused in a TIP or in court is not essential in every case where guilt is established on the basis of circumstances which lend assurance to the nature and the quality of the evidence.

43.12 The court of fact may, in the context and circumstances of each case, determine whether an adverse inference should be drawn against the accused for refusing to participate in a TIP. However, the court would look for corroborating material of a substantial nature before it enters a finding in regard to the guilt of the accused."

56. In Kanan v. State of Kerala (1979) 3 SCC 319 : AIR 1979 SC 1127, this Court held:-

"...It is well settled that where a witness Identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T. I. parade to test his powers of observations. The Idea of holding T. I. parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T. I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court "

In 2024 SCC OnLine SC 110, titled as Kishore and Others versus State of Punjab, decided on 07.02.2024, the Hon'ble Supreme Court, has reiterated the requirement of conducting the Test Identification Parade of the offender-accused, when the witnesses do not know the accused before the incident, in following terms:-

"8. It is true that a test identification parade is not mandatory. The test identification parade is a part of the investigation. It is useful when the eyewitnesses do not know the accused before the incident. The test identification parade is usually conducted immediately after the arrest of the accused. Perhaps, if the test identification parade is properly conducted and is proved, it gives credence of the identification of the accused by the concerned eyewitnesses before the Court. The effect of the prosecution's failure to conduct a test identification parade will depend on the facts of each case."

Thus, in view of the facts stated above, once the arrest of the petitioner, is required, for undertaking the Test Identification Parade under Section 54-A of Cr.P.C. therefore, this Court is of the considered view that further enlargement or continuance of bail, shall definitely prejudice and obstruct the case of the Investigating Agency/Prosecution, which could not be conducted since the registration of FIR on 14.03.2024, and the interim orders passed by this Court on 16.03.2024. The manner in which the investigation has to proceed/undertaken is to be decided by the prosecution and therefore, this Court is not inclined to further extend/continue the bail, so as to enable the State Authorities-Prosecution, to arrest the bail petitioner so to proceed further in investigation, by resorting to Test Identification Parade of the bail petitioner-accused, at this stage. Ordered accordingly.

9(v). The State Authorities have expressed likelihood of similar offence(s) being repeated by the bail petitioner as has been done by him in the past, which shall certainly cause further damage and exploitation to the society at large.

9(vi). The Status Report indicating the involvement of bail petitioner in view of the statements recorded under Sections 161 & 164 Cr.p.C. and the past criminal history, coupled with the apprehension/likelihood that the bail petitioner may threaten the complainant-victim [X], her parents and other witnesses, involved in the instant case.

While dealing with the matter relating to the likelihood of the evidence being tampered or threatening or inducement to witnesses or bona fide fear in the mind of the victim-complainant or her parents, the Hon'ble Supreme Court in Original Appeal No. 740 of 2022, titled as MS. P. versus The State of Madhya Pradesh and Another, has held as under:-

"27. The impugned order reveals that the High Court has made short shrift of the submissions made by the prosecution counsel to the effect that in her statements recorded under Sections 161 and 164 Cr.P.C, the appellant/complainant has not waivered and stuck to her version and the fact that the respondent No. 2 has previous criminal history. It is worthwhile to note that the criminal antecedents of the respondent No. 2 were brought to the notice of the High Court by the appellant/complainant and learned counsel for the respondent No. 1/State has also confirmed that he is involved in at least four criminal cases as detailed below:

Accused	Crime No.	Police Station	Sections Indian Penal Code, 1860
Respondent No.2 Accused	249/2015	Laadganj, Jabalpur	294, 324, 506 and 34
Respondent No.2 Accused	423/2017	Madan Mahal, Jabalpur	294, 323, 324, 452, 506 and 34
Respondent No.2 Accused	294/2017 177/2019	Civil Lines, Jabalpur	294, 323, 324
Respondent No.2 Accused	56/2019	Civil Lines, Jabalpur	143 and 1888

28. It has been vehemently urged on behalf of the appellant/complainant that the respondent No. 2's bail order deserves to be set aside not only on the grounds stated above, but also in the light of his blatant conduct subsequent to being released for which reference has been made to his photographs appearing in the social media with his snapshots prominently displayed on posters/hoarding in the forefront with the faces of some influential persons of the society in the backdrop, welcoming him with captions like "Bhaiyaa is back", "Back to Bhaiyaa", and "Welcome to Role Janeman".

29. The explanation sought to be offered for the above by the learned counsel for the respondent No. 2 is that he is a student leader who belongs to a community that celebrates the festival "Maa Narmada Jayanti" and the posters in question have nothing to do with his being released on bail. However, the captions referred to above with emojis of crowns and hearts thrown in for good measure, belie this version.

30. Even if it is assumed that the posters in question were not contemporaneous to the release of the respondent No. 2 from detention, the captions tagged to his photographs on the social media highlight the superior position and power wielded by the respondent No. 2 and his family in the society and its deleterious impact on the appellant/complainant. The emojis of crown and hearts tagged with the captions quoted above are devoid of any religious sentiments sought to be portrayed by the respondent No. 2. On the other hand, they amplify the celebratory mood of the respondent No. 2 and his supporters on his having been released from detention in less than two months of being taken into custody for a grace offence that entails sentence of not less than ten years that may even extend to life. The brazen conduct of the respondent No. 2 has evoked a bona fide fear in the mind of the appellant/complainant that she would not get a free and fair trial if he remains enlarged on bail and that there is likelihood of his influencing the material witnesses. It is noteworthy that a representation has also been submitted by the appellant's father to the Superintendent of Police, District Jabalpur expressing the very same apprehension."

Likewise, while dealing with the claim for bail, in the context of Section 376 and 506 of IPC, where the accused-offender, was allowed to move freely, despite the unlawful act of causing onslaught on the dignity of womanhood, who is likely to the prosecution witnesses or induce them to fattish the criminal justice system, has been outlined, by deprecating the release-enlargement on bail, in larger societal interests, in titled as Bhagwan Singh versus Dilip Kumar alias Deepu alias Depak and Another, decided on 23.08.2023, as under:-

"18. The offence alleged in the instant case is heinous and would be a onslaught on the dignity of the womanhood and the age old principle of  (where women are respected Gods live there) would recede to the background and the guilty not being punished by process of law or accused persons are allowed to move around freely in the society or in spite of there being prima facie material being present they are allowed to move around freely in the society before guilt is proved and are likely to indulge in either threatening the prosecution witnesses or inducing them in any manner to jettison the criminal justice system, then the superior court will have to necessarily step in to undo the damage occasioned due to erroneous orders being passed by courts below.

19. This Court in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 has held as under:

"9. Undoubtedly, considerations applicable to the grant of bail and considerations for cancellation of such an order of bail are independent and do not overlap each other, but in the event of non- consideration of considerations relevant for the purpose of grant of bail and in the event an earlier order of rejection available on the records, it is a duty incumbent on the High Court to explicitly state the reasons as to why the sudden departure in the order of grant as against the rejection just about a month ago. The subsequent FIR is on record and incorporated therein are the charges under Sections 323 and 504 IPC in which the charge-sheet have already been issued the court ought to take note of the facts on record rather than ignoring them. In any event, the discretion to be used shall always have to be strictly in accordance with law and not dehors the same. The High Court thought it fit not to record any reason, far less any cogent reason, as to why there should be a departure when in fact such a petition was dismissed earlier not very long ago. The consideration of the period of one year spent in jail cannot in our view be a relevant consideration in the matter of grant of bail, more so by reason of the fact that the offence charged is that of murder under Section 302 IPC having the punishment of death or life imprisonment it is a heinous crime against the society and as such the court ought to be rather circumspect and cautious in its approach in a matter which stands out to be a social crime of a very serious nature."

22. In this background, the contention or plea of delay being fatal to the prosecution when examined, it would, prima facie, indicate that in the complaint/FIR which has been registered on 25.03.2022 relevant to the incident dated 24.02.2021 the reason has been assigned namely constant threat posed by the accused persons as stated in the complaint itself. It is in this background it will have to be seen as to whether in the societal circumstances the minor girl was placed, her tender age, then prevailing circumstances and the purported video depicting her nudity and the constant threat being posed to victim of video of rape which had been recorded being made viral in the event of prosecutrix informing anyone of the incident are factors which cannot be brushed aside which resulted in delay in filing the complaint. In other words, delay by itself would not be fatal for all times to come and the criminality attached to the incident would not evaporate into thin air or get extinguished by virtue of such delay. It all depends upon facts that may unfold in given circumstances and same would vary from case to case. On the other hand, if the prosecution attempts to improvise its case stage by stage and step by step during the interregnum period, in such circumstances accused would be justified in contending that delay was fatal to stave off the proceedings initiated against such accused. Thus, it depends on facts that would unfold in a given case. In the aforesaid background the fact of delay in the instant case prima facie cannot be held against the prosecution or in other words on the ground of delay in lodging FIR the genuineness of the complaint cannot be viewed with coloured glasses nor it can be held that by itself would be sufficient ground to enlarge the accused on bail.

24. The fact that accused Deepak is the son of sitting MLA would disclose the domineering influence he would wield not only in delaying the proceedings but also in pressurizing the witnesses to either resile from their statement given during the course of investigation or pose threat to them from deposing against accused on their failure to act according to his dictates or induce them to testify as per his dictates or to help the defence of the accused.

26. The complainant's grievance, through-out has been that Deepak had been threatening the prosecutrix and other witnesses and that there is every possibility of threat to their life in the event they depose to the truth, and such apprehension is justifiable, especially because accused is in a domineering position. The complainant underlines the influence and possibility of the clout being wielded on the witnesses which cannot be discounted. The fact that even after recording of the deposition of the prosecutrix other prosecution witnesses have not come forward to tender evidence though more than nine dates of hearing has passed, would lend credence to the apprehension of the complainant. The High Court seems to have erred in not considering these basic facts while considering the prayer for grant of bail by taking into consideration the well- established judicial pronouncements already noticed hereinabove. That the court framed charges, prima facie discloses the possibility and reasonable suspicion of the accused prima facie culpability."

9(vii). The bail petitioner is also not entitled to concession of enlargement on bail, for the reason, that the bail petitioner has not approached this Court with clean hands.

The entire case set up was that the bail petitioner is innocent and he has been falsely roped in and he has no connection with the alleged offence. On filing of Status Reports, these averments goes to show that distorted facts and suppressing of the true facts, were made the basis for seeking the interim bail on 16.03.2024.

That being so, while dealing with suppression of facts and distorted facts, in bail cases, the Hon'ble Supreme Court, in Criminal Appeal No. 303 of 2024, titled as Kusha Duruka versus The State of Odisha, decided on 19.01.2024, has held as under:-

"7. It was held in the judgments referred to above that one of the two cherished basic values by Indian society for centuries is "satya" (truth) and the same has been put under the carpet by the petitioner. Truth constituted an integral part of the justice-delivery system in the pre- Independence era, however, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In the last 40 years, the values have gone down and now a litigants can go to any extent to mislead the court. They have no respect for the truth. The principle has been evolved to meet the challenges posed by this new breed of litigants. Now it is well settled that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. Suppression of material facts from the court of law, is actually playing fraud with the court. The maxim supressio veri, expression faisi, i.e. suppression of the truth is equivalent to the expression of falsehood, gets attracted. Its nothing but degradation of moral values in the society, may be because of our education system. Now we are more happy to hear anything except truth; read anything except truth; speak anything except truth and believe anything except truth. Someone rightly said that 'Lies are very sweet, while truth is bitter, that's why most people prefer telling lies.'"

Thus, on facts and in the backdrop of mandate of law, as referred to above, once, the bail petitioner has suppressed the material facts from the Court, then, the suppression of material facts amounts to playing a fraud on the Court and therefore, the bail petitioner is not entitled to the invocation of discretionary relief of pre-arrest bail under Section 438 of Cr.P.C.

9(viii). Further, the bail petitioner is not entitled for enlargement on bail, as there is every possibility of the bail petitioner fleeing away from the jurisdiction of this Court, in view of his past antecedents and criminal history and therefore, the societal interests shall certainly have precedence over the bail petitioner.

Notably, the personal liberty under Article 21 to some extent may carry weight depending on facts of each case, but when it comes to safeguarding and protecting the rights and interests of the society, the community and the nation and therefore, in that event the individual right shall have to succumb to the societal interests, in terms of the mandate of law, in Ash Mohammad versus Shiv Raj Singh alias Lalla Babu and another (2012) 9 SCC 446, as under:

"17. We are absolutely conscious that liberty of a person should not be lightly dealt with, for deprivation of liberty of a person has immense impact on the mind of a person. Incarceration creates a concavity in the personality of an individual. Sometimes it causes a sense of vacuum. Needless to emphasize, the sacrosanctity of liberty is paramount in a civilized society. However, in a democratic body polity which is wedded to Rule of Law an individual is expected to grow within the social restrictions sanctioned by law. The individual liberty is restricted by larger social interest and its deprivation must have due sanction of law. In an orderly society an individual is expected to live with dignity having respect for law and also giving due respect to others' rights. It is a well accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one. The cry of the collective for justice, its desire for peace and harmony and its necessity for security cannot be allowed to be trivialized. The life of an individual living in a society governed by Rule of Law has to be regulated and such regulations which are the source in law subserve the social balance and function as a significant instrument for protection of human rights and security of the collective. It is because fundamentally laws are made for their obedience so that every member of the society lives peacefully in a society to achieve his individual as well as social interest. That is why Edmond Burke while discussing about liberty opined, "it is regulated freedom".

18. It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilized milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organized society the concept of liberty basically requires citizens to be responsible and not to disturb the tranquility and safety which every well-meaning person desires. Not for nothing J. Oerter stated: "Personal liberty is the right to act without interference within the limits of the law."

19. Thus analyzed, it is clear that though liberty is a greatly cherished value in the life of an individual, it is a controlled and restricted one and no element in the society can act in a manner by consequence of which the life or liberty of others is jeopardized, for the rational collective does not countenance an anti-social or anti collective act.

30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction of liberty of the accused."

10. In view of the above discussion, and in the peculiar facts of the instant case, the prayer of the petitioner, (Dev Raj) for enlargement on bail, is without merit; and the same is accordingly, dismissed, at this stage.

11. As a sequel to the rejection of bail, this Court, directs the petitioner to surrender before the police and the personal bond/surety bond executed in pursuance to the order dated 16.03.2024 [interim bail] shall stand cancelled. In case, the petitioner fails to surrender, the State Authorities shall proceed in accordance with law.

12. The observations made in this judgment shall not be construed in any manner as an indictive of findings, for the purposes of investigation and the proceedings thereafter, including the trial, if any against either of the parties herein.

In aforesaid terms, the instant petition and all the pending miscellaneous application(s), if any, shall also stands disposed of, accordingly.