Date Of Decision: 30.8.2024 vs State Of Himachal Pradesh

. Cr.MP(M) No.1798 of 2024

Date of Decision: 30.8.2024 _____________________________________________________________________ Bhupesh Thakur

.........Petitioner Versus State of Himachal Pradesh .......Respondent

Coram

Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? Yes.

For the Petitioner: Mr. Ajay Kochhar, Senior Advocate with Mr.

Anubhav Chopra, Advocate. For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C. Verma, Additional Advocates General with Mr. Ravi Chauhan, Deputy Advocates General, for the State.

Ms. Bhawna Sharma, Legal Aid Counsel, for the complainant. ASI Vijay Pal Singh, I.O. WPS Baddi, District Solan,

Himachal Pradesh, present in person. ___________________________________________________________________________

Sandeep Sharma, J. (Oral)

Sequel to orders dated 14/21.8.2024, whereby bail petitioner

was ordered to be enlarged on interim bail in case FIR No.20/24, dated

18.7.2024, registered at Women Police Station Baddi, District Solan,

Himachal Pradesh, under Section 69 of the Bharatiya Nyaya Sanhita, 2023

(in short "BNS") and Section 18 (d) of the Transgender Persons (Protection

of Rights) Act 2019 (in short "Act"), respondent-State has filed the status

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report and ASI Vijay Pal Singh, I.O. WPS Baddi, has come present with

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record. Record perused and returned.

2. Close scrutiny of record/status report reveals that on

18.7.2024, victim-prosecutrix lodged a complaint at WPS Baddi, alleging

therein that during lockdown on account of Covid-19, she had come in

contact of the bail petitioner through Facebook and since then, they both

had been meeting and talking to each other. She alleged that though

factum with regard to her being transgender was disclosed to the petitioner

from day one, but yet he kept on insisting on solemnizing marriage with

her. She alleged that after lifting of lockdown in the wake of Covid-19, bail

petitioner took her to Naina Devi and Agra and applied Sindoor on her

forehead to assure her of their marriage. She alleged that though factum of

relationship inter-se her and bail petitioner was in the knowledge of

families of both the persons, but yet parents of bail petitioner expressed

their inability to solemnize marriage. She alleged that bail petitioner and

his father told her to first become woman and as such, she got her sex

changed at AIIMS Delhi. She alleged that though on the insistence of the

bail petitioner and his family members, she has got her sex changed, but

bail petitioner has refused to solemnize marriage. She alleged that she has

come to know that family of the bail petitioner has fixed his marriage with

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some other person and as such, appropriate action in accordance with law

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be taken against him. In view aforesaid background, FIR, as detailed

herein above, came to be lodged against the petitioner, but before he could

be apprehended, he approached this Court through instant petition,

praying therein for grant of interim bail. Vide order dated 14.8.2024, this

Court enlarged the bail petitioner on interim bail subject to his joining

investigation. Since bail petitioner has already joined investigation and

nothing remains to be recovered from him, prayer has been made on his

behalf for confirmation of interim bail granted vide order dated 14.8.2024.

3. Mr. Ajay Kochhar, learned senior counsel representing the

petitioner while making this Court peruse contents of the FIR vis-à-vis

provisions contained under Section 69 of the BNS, submits that no case

much less under Section 69 is made out, rather case, if any, is made out

against the petitioner under Section 18 (d) of the Act, wherein maximum

punishment of two years can be awarded. While making this Court peruse

status report/record made available to this Court, Mr. Kochhar, further

submits that though victim-prosecutrix repeatedly claimed that on the

askance of the petitioner and his family members, she got her sex changed,

but such fact is yet to be established on record by leading cogent and

convincing evidence. While referring to MLC adduced on record, Mr.

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Kochhar, states that victim-prosecutrix refused to get herself medically

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examined, as a result thereof, there is ample evidence adduced on record

till date with regard to surgery, if any, got conducted by the prosecutrix for

getting her sex changed. Mr. Kochhar further states that allegation of

maintaining physical relations with victim-prosecutrix are false, but since

such relation was allegedly maintained prior to surgery, if any, got

conducted by the victim-prosecutrix, whereby she allegedly got her sex

changed, no offence, if any, under Sections 69 of BNSS and 18 (d) of the

Act, can be stated to have been committed. He states that since petitioner

has already joined the investigation and nothing remains to be recovered

from him, interim bail granted in his favour vide order dated 14.8.2024,

deserves to be confirmed in view of the peculiar facts and circumstances of

the case.

4. While fairly admitting the factum with regard to filing of

Challan in the competent court of law, Mr. Rajan Kahol, learned Additional

Advocate General, contends that though nothing remains to be recovered

from the bail petitioner, but keeping in view the gravity of offence alleged to

have been committed by him, he does not deserve leniency. While making

this Court peruse the contents of FIR, Mr. Kahol, contends that though

victim-prosecutrix refused to undergo medical checkup for establishing her

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sex, but there is no material evidence adduced on record suggestive of the

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fact that victim-prosecutrix got the surgery done for changing her sex. He

states that though there is overwhelming evidence adduced on record to

prove that the bail petitioner had been sexually exploiting the victim-

prosecutrix on the pretext of marriage despite his fully knowing the fact

that victim-prosecutrix is a transgender, but even if it is presumed that

factum with regard to victim-prosecutrix having changed her sex was not in

the knowledge of the bail petitioner, he cannot be spared of his having

attempted to spoil the life of victim-prosecutrix. Mr. Kahol, fairly submits

that bare perusal of Aadhar Card of victim-prosecutrix adduced on record

clearly reveals that her gender is female, if it is so, bail petitioner has been

rightly booked under Section 69 of the BNS. While referring to the

provisions contained under Section 69, Mr. Kahol states that offence

committed under the aforesaid provision of law is punishable upto ten

years. He states that since bail petitioner has committed heinous crime

under Section 69 of the BNS and Section 18 (d) of the Act, prayer made on

his behalf for grant of interim bail, deserves to be rejected outrightly.

5. Ms. Bhawana Sharma, learned Legal Aid Counsel, appearing

for the complainant/victim-prosecutrix, also supported the arguments

advanced by the learned Additional Advocate General.

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6. Having heard learned counsel for the parties and perused

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material available on record, this court finds that pursuant to order dated

14.8.2024, bail petitioner has already joined the investigation and nothing

remains to be recovered from him. Though bare perusal of contents of FIR

suggests that bail petitioner has committed heinous crime, but such fact, if

any, is yet to be established on record by the prosecution by leading cogent

and convincing evidence. In the case at hand, case under Section 69 of the

BNS and Section 18 (d) of the Act, has been registered against the

petitioner, but bare perusal of afore provision of law, which is reproduced

herein below suggests that aforesaid provision of law can only be invoked if

complainant is a woman.

"69. Sexual intercourse by employing deceitful means, etc. Whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, has sexual

intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either

description for a term which may extend to ten years and shall also be liable to fine.

Explanation.--"deceitful means" shall include inducement for, or false promise of employment or promotion, or marrying by suppressing identity."

7. In aforesaid provision of law, it has been categorically provided

that whoever by deceitful means or by making promise to marry to a

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woman without any intention of fulfilling the same, has sexual intercourse

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with her, such sexual intercourse not amounting to the offence of rape,

shall be punished with imprisonment of either description for a term, which

may extend to ten years and shall also be also liable to pay fine.

8. Having perused the aforesaid provision of law coupled with the

statement of victim-prosecutrix recorded under Sections 154 and 164

CrPC, wherein she specifically admitted herself to be a transgender, there

appears to be merit in the contention of Sh. Ajay Kochhar, learned Senior

counsel appearing for the petitioner that no case, if any, is made out

against the petitioner under Section 69 of the BNS.

9. At this stage, it would be apt to take note of section 2 of BNS,

wherein word "gender" has been defined under Section 2 (10). Section 2

(10) of the BNS is reproduced herein below:

"2(10) "gender".--The pronoun "he" and its derivatives are used of any person, whether male, female or transgender. Explanation.--

"transgender" shall have the meaning assigned to it in clause (k) of section 2 of the Transgender Persons (Protection of Rights) Act, 2019

10. As per definition pronoun "he" and its derivatives are used of

any person, whether male, female or transgender. For the first time, word

"transgender" has been included in the definition of "gender", meaning

thereby, transgenders cannot claim themselves to be male or female as they

are given separate identity.

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11. Section 2(35) of BNS defines "Woman" as under:

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"2 (35) "woman" means a female human being of any age."

12. As per aforesaid provision of law, woman means female human

being of any age. Since under BNS, "woman" and "transgender" have been

given different identity and have been defined independently, under Section

2 coupled with the fact that physical relationship inter-se victim-

prosecutrix and bail petitioner, if any, was developed prior to surgery of

victim-prosecutrix, whereby she allegedly got her sex changed, there

appears to be force in the claim of the bail petitioner that he could not have

been booked under Section 69 of the BNS, rather he is required to be dealt

with in terms of the under Section 18 (d) of the Act, which reads as under:

"(d) harms or injures or endangers the life, safety, health or well-

being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal

and emotional abuse and economic abuse, shall be punishable with imprisonment for a term which shall not be less than six months but

which may extend to two years and with fine."

13. As per Section 18 (d), whoever harms or injures or endangers

the life, safety, health or well being , whether mental or physical of a

transgender person or tends to do acts including causing physical abuse,

sexual abuse, verbal and emotional abuse and economic abuse, shall be

punishable with imprisonment for a term, which shall not be less than six

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months, which may extend to two years and with fine. Moreover, this court

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finds that nothing has been adduced on record till date, suggestive of the

fact that attempt to develop physical relationship, if any, by the petitioner

with victim-prosecutrix was ever made after the alleged surgery, whereby

victim-prosecutrix got her sex changed.

14. Though case at hand shall be decided by the court below in the

totality of evidence collected on record by the prosecution, but keeping in

view the aforesaid glaring aspect of the matter, there appears to be no

justification for this court to send the bail petitioner in judicial custody,

especially when nothing remains to be recovered from him.

15. No doubt, offence alleged to have been committed by the bail

petitioner is of heinous nature, but guilt, if any, of the petitioner is yet to be

established on record by leading cogent and convincing evidence. Hon'ble

Apex Court as well as this Court in catena of cases have repeatedly held

that one is deemed to be innocent till the time, guilt of his/her is not

proved in accordance with law. In the case at hand, guilt if any of the bail

petitioner is yet to be established on record by the Investigating Agency by

leading cogent and convincing evidence and as such, his freedom cannot be

curtailed for an indefinite period during trial. Apprehension expressed by

the learned Additional Advocate General that in the event of petitioner's

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being enlarged on bail, he may flee from justice, can be best met by putting

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the bail petitioner to stringent conditions as has been fairly stated by the

learned counsel for the petitioner.

16. Needless to say, object of the bail is to secure the attendance of

the accused in the trial and the proper test to be applied in the solution of

the question whether bail should be granted or refused is whether it is

probable that the party will appear to take his trial. Otherwise, bail is not

to be withheld as a punishment. Otherwise also, normal rule is of bail and

not jail.

Court has to keep in mind nature of accusations, nature of

evidence in support thereof, severity of the punishment which conviction

will entail, character of the accused, circumstances which are peculiar to

the accused involved in that crime. See: Sanjay Chandra versus Central

Bureau of Investigation (2012)1 Supreme Court Cases 49 and Prasanta

Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496.

17. Recently, the Hon'ble Apex Court in Criminal Appeal No.

227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., decided on

6.2.2018, has categorically held that a fundamental postulate of criminal

jurisprudence is the presumption of innocence, meaning thereby that a

person is believed to be innocent until found guilty. Hon'ble Apex Court

further held that while considering prayer for grant of bail, it is important

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to ascertain whether the accused was participating in the investigations to

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the satisfaction of the investigating officer and was not absconding or not

appearing when required by the investigating officer. Hon'ble Apex Court

further held that if an accused is not hiding from the investigating officer or

is hiding due to some genuine and expressed fear of being victimized, it

would be a factor that a judge would need to consider in an appropriate

case.

18. Consequently, in view of the above, orders dated 14/21.8.2024,

passed by this Court, is made absolute, subject to the following conditions:

(a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from

appearance by filing appropriate application;

(b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

(c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from

disclosing such facts to the Court or the Police Officer; and

(d) He shall not leave the territory of India without the prior permission of the Court.

19. It is clarified that if the petitioner misuses the liberty or violates

any of the conditions imposed upon him, the investigating agency shall be

free to move this Court for cancellation of the bail.

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20. Any observations made hereinabove shall not be construed to

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be a reflection on the merits of the case and shall remain confined to the

disposal of this application alone. The petition stands accordingly disposed

of.

21. The petitioner is permitted to produce copy of the order

downloaded from the High Court Website and the trial court shall not insist

for certified copy of the order, however, it may verify the order from the

High Court website or otherwise.

August 30, 2024 (Sandeep Sharma), (manjit) Judge

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