Pre-arrest Bail is a Discretionary Relief and is to be granted in Exceptional Cases

Pre-arrest Bail is a Discretionary Relief and is to be granted in Exceptional Cases.

The Punjab and Haryana High Court observed that “though every citizen of India has got a right to express his views in the matter then freedom of speech does not mean that one can go to the extent of making wild and malicious allegations.

The Bench of Justice H.S. Madaan of the Punjab and Haryana High Court was hearing the anticipatory bail plea filed by Kapil Dev (petitioner/accused), an accused in FIR No.0200 for the offences under Sections 504, 506, 509 IPC and Section 67 of Information Technology Act, 2000.

Brief Facts of the Case

  • Ms Niharika Bhardwaj, a retired Military Officer of the rank of Major, has filed a complaint alleging that Kapil Dev, Admin. of You-Tube Channel, ‘Saabka Sainik Sangharsh Committee’ had uploaded a false and doctored video on 15.4.2020 at 7:00 p.m. with an intent to malign her name and reputation.
  • As stated in the complaint, the Kapil Dev (calls himself an ‘orator’), is a notorious person and through his doctored hate speeches against the Units of the Indian Army, attempted to create discontentment and rift. Also, it was alleged that he has been accessing official documents and restricted videos of activities of Army Establishments, which is an act of serious breach of security affecting the national interests.
  • As per the complainant, such video caused acute mental trauma and harassment to her and immediately after it was uploaded, the complainant received phone calls from her father, father-in-law, her brother and other close relatives, who inquired about the allegations and thereafter expressed their concern about her safety.
  • After registration of the FIR, the investigation in the case started. Apprehending his arrest in this case, the petitioner had approached the Court of Sessions at Ambala, but the Court doesn’t grant him anticipatory bail and dispose off his application.

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Observation of Court

  • The allegations against the petitioner are quite grave andserioustouching the honour, reputation and social status of the complainant, who had served the nation in capacity of Major in the Indian Army having retired as such and is the wife of Commanding Officer of Army Unit.
  • Such type of accused encroaching upon the reputation, prestige, honour and status of even a common man cannot be taken lightly, observed the Court.
  • The Court further added that, only as a result of custodial interrogation of the petitioner, it can be found out as to how the entire act of uploading the video film on You-Tube was planned and executed, the persons involved in such acts and actual motive behind their doing that. There are grave and serious allegations against the petitioner with regard to gaining access to the secret documents concerning the national security. The matter needs to be investigated from that angle also
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  • Merely because the petitioner has joined the investigation and his mobile phone has been recovered does not mean that he becomes entitled to grant of concession of anticipatory bail.
  • Custodial interrogation of the petitioner was required for complete and effective investigation. In case custodial interrogation of the petitioner is denied to the investigating agency, it would leave many loose ends and gaps in the investigation affecting the investigation being carried out adversely which is not called for.
  • Pre-arrest bail is a discretionary relief and is to be granted in exceptional cases and not in a routine. It is meant to save the innocent persons from harassment and inconvenience and not to screen the culprits from custodial interrogation.
  • The Court referred to the verdict of State represented by the C.B.I. Versus Anil Sharma, 1997(4) R.C.R.(Criminal) 268, in which the Hon’ble Apex Court had observed that custodial interrogation is qualitatively more elicitation orientated than questioning a suspect who is on anticipatory bail, in a case like this interrogation of suspected person is of tremendous advantage in getting useful information.
  • The Court noted that Custodial interrogation of the petitioner is definitely required for complete and effective investigation. In case custodial interrogation of the petitioner is denied to the investigating agency it would leave many loose ends and gaps in the investigation affecting the investigation being carried out adversely which is not called for.
  • Keeping in view the nature and gravity of the offence alleged to have been committed by the petitioner/accused and the fact that his custodial interrogation is required to ascertain the genesis of the offence; this Court does not find it a fit case to extend the concession of anticipatory bail to the petitioner/accused at this stage. Consequently, this Court does not find any merit in the present application for grant of anticipatory bail moved by the petitioner/accused Kapil Dev and the same is hereby dismissed.

Case Name: Kapil Dev vs State of Haryana

Case no.: CRM-M-12507-2020(O&M)

Coram: Justice H.S. Madaan

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