Himachal Pradesh High Court: In a petition filed by the petitioner-accused for confirmation of interim bail granted vide order dated 14-08-2024 in a case registered under Section 69 of the Nyaya Sanhita, 2023 (‘BNS’) and Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019 (‘the Act’), Sandeep Sharma, J., after perusal of Section 69 of the BNS coupled with Sections 1541 and 1642 of the Criminal Procedure Code, 1973 (‘CrPC’), wherein the victim specifically admitted herself to be a transgender, stated that no case was made out against the accused under Section 69 of the BNS.
The Court stated that no doubt, the offence alleged to have been committed by the accused was of heinous nature, but guilt, if any, of the accused was yet to be established on record by leading cogent and convincing evidence. In the present case, guilt if any of the accused was yet to be established on record by the Investigating Agency by leading cogent and convincing evidence and thus, his freedom could not be curtailed for an indefinite period during trial. Consequently, the Court made the order dated 14-08-2024, passed by this Court, absolute, with certain conditions.
Background
On 18-07-2024, the victim-prosecutrix filed a complaint stating that during Covid-19 lockdown, she came in contact of the accused through Facebook and since then, they both were meeting and talking to each other. The victim alleged that the fact that she was a transgender was disclosed to the accused from day one, the accused kept on insisting on solemnizing marriage with her.
The victim alleged that after lockdown was lifted, the accused took her to Naina Devi and Agra and applied Sindoor on her forehead to assure her of their marriage. She alleged that even though the relationship between her and the accused was in the knowledge of families of both the persons, yet parents of the accused expressed their inability to solemnize marriage. She alleged that the accused and his father told her to first become woman and thus, she got her sex changed at AIIMS Delhi.
The victim alleged that though on the insistence of the accused and his family members, she got her sex changed, but the accused had refused to solemnize marriage. She came to know that the accused’s family had fixed his marriage with some other persons, and thus appropriate action in accordance with the law must be taken against him.
Thus, the FIR was filed against the accused. However, before he could be apprehended, he had filed the present petition for the grant of interim bail and vide order dated 14-08-2024, the Court granted the bail to the accused subject to his joining investigation. Since, the accused had joined investigation and nothing remained to be recovered from him, the accused made a prayer for confirmation of interim bail granted vide order dated 14-08-2024.
Analysis, Law, and Decision
The Court noted that in the present case, a case under Section 69 of the BNS and Section 18(d) of Transgender Persons (Protection of Rights) Act, 2019 had been registered against the accused. After perusal of Section 69 of the BNS coupled with Sections 154 and 164 of the CrPC, wherein the victim specifically admitted herself to be a transgender, the Court stated that no case was made out against the accused under Section 69 of the BNS.
The Court referred to Section 2 of BNS, wherein the word ‘gender’ was defined and observed that “he” and its derivatives were used of any person, whether male, female or transgender. For the first time, word “transgender” was included in the definition of “gender”, which meant that the transgenders could not claim themselves to be male or female as they were given separate identity.
The Court stated that since ‘woman’ and ‘transgender’ were given identity and were defined independently, therefore the fact that physical relationship between the victim and the accused was developed prior to sex-change surgery. The Court referred to Section 18(d) of the Act and stated that nothing had been adduced on record to suggest that the physical relationship was developed between the victim and the accused, after the victim got her sex changed.
The Court stated that no doubt, the offence alleged to have been committed by the accused was of heinous nature, but guilt, if any, of the accused was yet to be established on record by leading cogent and convincing evidence. In the present case, guilt if any of the accused was yet to be established on record by the Investigating Agency by leading cogent and convincing evidence and thus, his freedom could not be curtailed for an indefinite period during trial.
The Court stated that the object of bail was to secure the attendance of the accused in the trial. The proper test to be applied in the solution of the question that whether bail should be granted was whether it was probable that the party would appear to take his trial. Otherwise, bail was not to be withheld as a punishment. The Court stated that normal rule was of bail and not jail. Court had to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction would entail, character of the accused, circumstances which were peculiar to the accused involved in that crime.
Consequently, the Court made the order dated 14-08-2024, passed by this Court, absolute, with the conditions that if required, he should make himself available for the purpose of interrogation, and regularly attend the Trial Court on each and every date of hearing. If prevented by any reason to do so, he should seek exemption from appearance by filing appropriate application. The Court stated that he should not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever. He should not make any inducement, threat or promises to any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or the Police Officer, and he shall not leave the territory of India without the prior permission of the Court.
The Court clarified that if the accused misuses the liberty or violates any of the conditions imposed upon him, the investigating agency should be free to move this Court for cancellation of the bail. Further, any observations made in the present order should not be construed to be a reflection on the merits of the case and should remain confined to the disposal of this application alone.
[Bhupesh Thakur v. State of H.P., 2024 SCC OnLine HP 4513, decided on 30-08-2024]
Advocates who appeared in this case:
For the Petitioner: Ajay Kochhar, Senior Advocate with Anubhav Chopra, Advocate;
For the Respondents: Rajan Kahol, Vishal Panwar and B.C. Verma, Additional Advocates General with Ravi Chauhan, Deputy Advocates General, for the State; Bhawna Sharma, Legal Aid Counsel, for the complainant. ASI Vijay Pal Singh, I.O. WPS Baddi, District Solan, Himachal Pradesh.
1. Corresponding Section 173 of Nagarik Suraksha Sanhita, 2023 (‘BNSS’)
Buy Code of Criminal Procedure, 1973 HERE
