Punjab and Haryana High Court: Rajesh Bhardwaj, J., denied anticipatory bail to the petitioner, a member of Kisan Union Delegation who was accused of raping a farm law activist near Tikri border. Observing the evidences pointed towards complicity of the petitioner and the case was at investigation stage, the Bench stated,
“A free and fair investigation is the backbone of every criminal trial. The criminal trial is a discovery in pursuit of the truth. Without a thorough free and fair investigation, the trial becomes a futile exercise.”
Facts of the case
An FIR had been registered by the father of the deceased-victim namely, Utpal Basu, alleging that his daughter aged about 25 years was an Artist and Ornament Designer. She was a supporter of farmers’ movement and when the delegation of the farmers’ agitation union reached West Bengal, the victim came in contact with the same. She associated herself with the activities of the delegation in West Bengal and then with the permission of the complainant, left for Delhi from Howrah on 11-04-2021 along with delegation of Kisan Union Delegation which included the petitioner-Anoop Singh as well as co-accused Anil Malik etc.
The complainant alleged that as told by the victim, the co-accused Anil Malik came to the victim and he forcibly kissed her while she was in the train and had sexually harassed her. There was an alleged attempt to abduct the victim by the petitioner-accused as well. The complainant submitted that on coming to know that his daughter was diagnosed COVID-19 positive he immediately reached to meet his ailing daughter. During this meeting, the victim told her father how she was sexually assaulted by the petitioner-accused. She had told her father, “hamara saath kharaab kaam hua hai”.
Contentions Raised by the Petitioners
The petitioner had vehemently contended that the case of the prosecution was nothing but a cock and bull story. They had argued that the FIR was nothing but a brutal attempt to malign the ongoing farmers’ agitation. Raising questions on veracity of complaint, the petitioner argued that despite the availability of an ample time, there was no statement recorded by the police or by the Judicial Magistrate which cast a serious doubt on the intention of the prosecution. The attention of the Court was also drawn to the transcript of the video made by the deceased by her friends, which contained no allegation of rape. The questions were also raised that the investigating agency had never conducted any postmortem of the deceased simply on the excuse of the deceased being COVID-19 positive. It was also contended that the victim being on the ventilator, she could have never told anything to her father as asserted in the FIR.
Observations and Analysis
Noticing that the co-accused Anil Malik had already been arrested and his disclosure had represented a clear picture regarding the complicity of the petitioner in ravishing the honour of victim, the Bench observed that as per the disclosure, the co-accused Anil Malik and the petitioner sexually assaulted the victim. The CDMR (Call Details Manual Record) also disclosed that the petitioner was definitely in touch with the co-accused and the victim as the tower location of all the three mobiles was of the same place.
Regarding the contention of the petitioner that neither there was any statement of the prosecutrix nor any medical test conducted, the Bench stated that the investigation conducted so far could not be ignored and the case being at investigation stage the petitioner did not deserve the concession of the anticipatory bail as the prayer for the custodial interrogation by the prosecution was justified. Accordingly, the Bench expressed,
“This Court cannot compromise with the quality of free and fair investigation by enlarging the petitioner on anticipatory bail.”
Placing the reliance on the Supreme Court’s judgment in State v. Anil Sharma, (1997) 7SCC 187, wherein it had been held:- “…custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code…effective interrogation of a suspected person is of tremendous advantage in disinterring many useful information and also materials which would have been concealed”; and opining that Article 21 of the Constitution is not an absolute right and is subject to the procedure established by law, the Bench held that the facts and circumstances involved in the instant case, pointed towards the complicity of the petitioner and thus custodial interrogation of the petitioner was necessary and would not amount to the violation of petitioner’s right under Article 21 of the Constitution.
In view of the discussion made above, the petition was held devoid of merit and was dismissed.[Anoop v. State of Haryana, CRM-M No.26706 of 2021, decided on 04-08-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
For the Petitoner: Advocate K.D.S. Hooda
For the State of Haryana: Addl. A.G. Deepak Sabharwal
For the Complainant: Advocate Megha Bahl