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"Custodial Interrogation Justified": Himachal Pradesh HC Denies Anticipatory Bail To Man Accused Of Flesh Trade Of Adolescent Girls

Nupur Thapliyal
7 April 2021 5:53 AM GMT
Custodial Interrogation Justified: Himachal Pradesh HC Denies Anticipatory Bail To Man Accused Of  Flesh Trade Of Adolescent Girls
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"Sec. 438 Cr.P.C. is an exception to general principle and at the time of exercising power under sec. 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." -Himachal Pradesh HC

The Himachal High Court on Tuesday denied anticipatory bail to a man apprehending arrest in a case for allegedly being a part of racket involved in fishing adolescent girls for throwing them in international flesh trade by trafficking them abroad after alluring them for marriage. A single judge bench comprising of Justice Vivek Singh observed that an accused may not be entitled for...

The Himachal High Court on Tuesday denied anticipatory bail to a man apprehending arrest in a case for allegedly being a part of racket involved in fishing adolescent girls for throwing them in international flesh trade by trafficking them abroad after alluring them for marriage.

A single judge bench comprising of Justice Vivek Singh observed that an accused may not be entitled for the grant of anticipatory bail even in the absence of necessity of custodial interrogation in all eventualities. According to the Court, the requirement of custodial interrogation is not the only reason for rejecting bail application.

While making the said observation, the Court also observed that "a balance has to be maintained between the right of personal liberty and the right of Investigating Agency to investigate and to arrest an offender for the purpose of investigation."

The Court observed thus:

"Considering entire facts and circumstances of the case placed before me and contention of learned Deputy Advocate General as well as learned counsel for the petitioner, and nature, gravity and seriousness of offence for the manner in which girl has been managed to be transported/travelled from Shimla to a remote village of Uttar Pradesh in an organized manner, and also for finding or ruling out possibility of amplitude and magnitude of the conspiracy, I find that prayer for custodial interrogation of the petitioner is justified and thus acceptable. Therefore, petition is dismissed with direction to the petitioner to surrender before Investigating Officer/police immediately."

The observation came in an anticipatory bail plea filed by one Mohammad Nazim apprehending arrest under sec. 363, 366A, 370(4), 506 and 120B of the Indian Penal Code. The facts of the case are that minor girl aged about 15 years went missing after she went to her school. A complaint was then registered by her father with the suspicion that someone had abducted her after alluring and misleading her.

During the course of investigation, the location of the mobile phone of the victim revealed that she was traveling towards Delhi.

According to the Advocate General, it was submitted that investigation in the case revealed that there was a plan to traffic the victim to Dubai and that the call detail records showed that the accused was in regular contact with her and that he was allegedy directing, dictating, controlling and monitoring her movement on mobile with the help of a well connected network of his allege racked.

It was also submitted that the said racked "smacked of a big conspiracy" amongst the accused by allegedly giving false assurance of marriage to the victim. In view of this, it was submitted that custodial interrogation of the accused was warranted in the matter.

On the other hand, the petitioner/accused while denying the allegations of it being a case of big conspiracy, submitted that it was a simple love affair between him and the victim and that he in fact ensured her safety by making arrangements for her arrival in Delhi in his house.

It was also submitted by the petitioner that there was no avert act on the part of the petitioner as the victim had voluntarily left her house.

The Court while looking at the facts of the present case observed that the Court has no power to issue direction to the investigating agency not to arrest an offender. The Court also noted that a direction under sec, 438 of CrPC is issued by the Court in anticipation of arrest for releasing the offender.

"It is an extraordinary provision empowering the Court to issue direction to protect an offender from detection. Therefore, this power should be exercised by the Court wherever necessary and not for those who are not entitled for such intervention of the Court at the stage of investigation, for nature and gravity of accusation, their antecedents or their conduct disentitling them from favour of Court for such protection." The Court observed at the outset.

Noting that as a normal course, interference by the Court at the investigation is not warranted, the Court observed that an exception is created by sec. 438 in order to strike a balance between right of Investigating Agency and life and liberty of a person has to be in the light of Fundamental Rights guaranteed under Articles 21 and 22 of the Constitution of India.

"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 learned 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 CrPC." The Court observed.

While observing that it was impossible for the Court to visualize all the factors and enlist them as every case is decided on its own facts and circumstances, the Court after finding merit in the submissions made by the Advocate General denied anticipatory bail to the petitioner.

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