Friday, 30 October 2020

Whether court should refuse to grant anticipatory bail to husband for offence U/S 498A of IPC if he uploads a nude picture of his wife on the internet?

Not only this the husband of the victim had also uploaded

nude photographs of the victim on facebook through fake facebook ID

created by him in the name of victim and had also uploaded nude

photographs of the victim as profile picture of that facebook ID and

after taking screen shots thereof had sent photographs to the victim

and had also uploaded videos and photographs wherein victim was

nude. During investigation, 16 such screen shots have been produced

before the police which were uploaded by the husband of the victim.

16. Relationship of husband and wife is a privileged relation.

Institution of marriage inspires trust and confidence which leads to

complete surrender of spouses to each other. This relation of mutual

trust, faith and confidence creates sense of security and sometimes

even more than parents and children. Sometime spouse feels more

secured in shelter of life partner than mother’s lap. Such feeling

inspires openness between husband and wife.

17. Posting and uploading nude photographs of spouse,

particularly of wife, in public domain amounts to betray the mutual

trust and confidence which marital relations implies. It is stripping off

a woman in public by the husband himself who is not only supposed

but duly bound to protect her, it is not only serious but a heinous

crime. It’s impact on soul, mind and health of the victim is beyond

imagination. It causes suffering to her beyond comprehension,

attracting the provision of Section 498-A IPC. An act amounting to

stripping off a woman in public, in my considered view dis-entitles a

person from anticipatory bail.

18. I am of the considered view that extraordinary provision

of Section 438 Cr.P.C, conferring discretion upon the Court to direct

enlargement of a person on bail before his arrest, in the event of his

arrest, is not framed to benefit such offenders particularly a husband

who is accused of an offence amounting to stripping off his wife in

public. Therefore, considering the given facts and circumstances of

the case, nature and gravity of the accusations and impact thereof on

the soul, mind and body of a woman, affecting her mental and

physical health beyond comprehension, I do not find it fit to enlarge

petitioner Abhishek Mangla on bail, exercising the power under

Section 438 Cr.P.C. Hence, bail petition [Cr.M.P(M) No. 1808 of 2020]

preferred by him is dismissed.

THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) Nos. 1808 to 1811 of

2020

Decided on: 27.10.2020

Cr.M.P(M) No. 1808 of 2020

Abhishek Mangla Vs State of H.P

Coram

The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.


These four petitions preferred under Section 438 Cr.P.C

are being disposed of by this common order as common status report

filed on behalf of respondent-State is to be considered on the basis of

common facts and circumstances.

2. Petitioner Abhishek Mangla is husband of complainant,

whereas, Pat Ram Mangla, Shirli Mangla and Meenal Mangla are father,

mother and sister of Abhishek Mangla.

3. Common status report filed on behalf of respondent-State

has been taken on record, wherein contents of complaint submitted by

the victim, on the basis of which FIR No. 41/2020 dated 5.10.2020 has

been registered against the petitioners under Sections 498A, 504, 34

IPC and Sections 66(E) and 67 of the IT Act in Women Police Station,

Mandi, District Mandi, has been reproduced.

4. According to the victim, after one month of solemnization

of marriage with Abhishek Mangla, the petitioners had started

harassing her on one or other pretext particularly for insufficient

dowry. It is also case of the victim that there was some criminal case

registered against the petitioners in which they were trying to get

anticipatory bail and the father of the complainant had helped them in

engaging an Advocate at Chandigarh but after getting bail, allegations

were leveled by her father-in-law that the father of the complainant

would have shared their money from the Advocate engaged by them

and other incidents, which are not being reproduced here in detail,

have also been stated in the complaint with respect to beatings,

harassing and preventing from making calls to her parents and sisters.

It is complained that even the calls of the complainant were being

recorded by her husband. Being tired of atrocities of her in-laws,

complainant had called her father and had come to her parental house

at Mandi along-with him and at that time, after about 1½ months, her

husband had come to Mandi and apologized for his conduct and

sweared for not to repeat that whereupon complainant had agreed to

accompany him with the consent of her far believing that he will not

beat her. But immediately after reaching at home, he had again

threatened her to teach a lesson to her father and thereafter again had

started harassing and beating her and abusing her sister and parents.

5. It is also stated in the complaint that once, during night,

Abhishek Mangla had snapped her nude photographs on his mobile

and on refusal to allow that, he had expressed his anger whereupon

victim had acceded to his request and out of fear, she had not raised

any voice against him. On asking for reason to take such photographs,

the husband of the complainant, at that time, had replied that he had

done so causelessly/without any reason (‘yooh hee’). However,

thereafter her husband had uploaded her nude photographs on the

internet for sometime and had removed after some time.

6. It is further case of the complainant that in September,

2020, husband of the complainant had dictated her to ask her father to

provide scooty to him, failing which, he had threatened to post all

nude posts on internet along-with name, address and mobile number

of her father and when she requested to delete those nude

photographs from his mobile then he had slapped her. At that time

out of fear she had even urinated in her clothes and suffered fever

also. When she narrated this incident to her father-in-law and mother-

in-law, they had also justified the demand of their son and her sisterin-

law had commencted that that it would not be easy to have scooty

from the parents of the victim.

7. Not only this the husband of the victim had also uploaded

nude photographs of the victim on facebook through fake facebook ID

created by him in the name of victim and had also uploaded nude

photographs of the victim as profile picture of that facebook ID and

after taking screen shots thereof had sent photographs to the victim

and had also uploaded videos and photographs wherein victim was

nude. During investigation, 16 such screen shots have been produced

before the police which were uploaded by the husband of the victim.

8. The petitioners have approached this Court for

anticipatory bail. They have been enlarged on anticipatory bail on 9th

October, 2020 with a direction to join the investigation. As per status

report filed, they have joined the investigation and petitioner Abhishek

Mangla has also produced his mobile and sim purported to be used by

him. Learned counsel for petitioners submits that petitioners are ready

to abide by any further condition imposed by Court for confirmation of

their bail and they are also in a position and read to furnish local

surety. Further that offence under Information and Technology Act (IT

Ac( is not non-bailable and for other alleged offences, petitioners

deserve to be enlarged on bail.

9. The offence under Sections 66(E) and 67 of the IT Act may

be bailable offence, however, offence under Section 498A IPC is a nonbailable

offence.

10. So far as the petitioners Pat Ram Mangla, Shirli Mangla

and Meenal Mangla (Cr.M.P(M) Nos. 1809, 1810 and 1811 of 2020) are concerned, considering their role as indicated in status report and as

alleged in the complaint, they are enlarged on bail subject to

furnishing fresh bail bonds in the sum of `50,000/- each with one local

surety each, as undertaken, in the like amount to the satisfaction of

the Chief Judicial Magistrate, Mandi and also subject to the following

conditions:-

i) That the petitioners shall make themselves available

to the police or any other Investigating Agency or

Court in the present case as and when required;

ii) that the petitioners shall not directly or indirectly

make any inducement, threat or promise to any

person acquainted with the facts of the case so as to

dissuade him/her from disclosing such facts to Court

or to any Police Officer or tamper with the evidence.

They shall not, in any manner, try to overawe or

influence or intimidate the prosecution witnesses;

iii) that they shall not obstruct the smooth progress of the

investigation/trial;

iv) that the petitioners shall not commit the offence

similar to the offence to which they are accused or

suspected;

v) that the petitioners shall not misuse their liberty in

any manner;

vi) that the petitioners shall not jump over the bail;

vii) that they shall furnish proof of their place of ordinary

residence like certificate of Panchayat or any other

authority which may be placed where his mother,

brother or wife are residing and he shall keep on

informing about the change in address, landline

number and/or mobile number, if any, for their

availability to Police and/or during trial; and

viii) they shall not leave India without permission of the

Court.

ix) They shall not involve in commission of same and

similar offence and in such eventuality, bail in present

case shall also be liable to be cancelled.

11. It will be open to the prosecution to apply for imposing

and/or to the trial Court to impose any other condition on the

petitioners as deemed necessary in the facts and circumstances of the

case and in the interest of justice.

12. In case the aforesaid petitioners violate any conditions

imposed upon them, their bail shall be liable to be cancelled. In such

eventuality prosecution may approach the competent Court of law for

cancellation of bail, in accordance with law.

13. Learned trial Court is directed to comply with the

directions issued by the High Court, vide communication No.

HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.

14. Observations made in these petitions hereinbefore shall

not affect the merits of the case in any manner and are strictly

confined for the disposal of these bail applications.

15. The petitioners are permitted to produce copy of order

downloaded from the High Court website and the trial Court shall not

insist for certified copy of the order, however, he may verify the order

from the High Court website or otherwise.

16. Relationship of husband and wife is a privileged relation.

Institution of marriage inspires trust and confidence which leads to

complete surrender of spouses to each other. This relation of mutual

trust, faith and confidence creates sense of security and sometimes

even more than parents and children. Sometime spouse feels more

secured in shelter of life partner than mother’s lap. Such feeling

inspires openness between husband and wife.

17. Posting and uploading nude photographs of spouse,

particularly of wife, in public domain amounts to betray the mutual

trust and confidence which marital relations implies. It is stripping off

a woman in public by the husband himself who is not only supposed

but duly bound to protect her, it is not only serious but a heinous

crime. It’s impact on soul, mind and health of the victim is beyond

imagination. It causes suffering to her beyond comprehension,

attracting the provision of Section 498-A IPC. An act amounting to

stripping off a woman in public, in my considered view dis-entitles a

person from anticipatory bail.

18. I am of the considered view that extraordinary provision

of Section 438 Cr.P.C, conferring discretion upon the Court to direct

enlargement of a person on bail before his arrest, in the event of his

arrest, is not framed to benefit such offenders particularly a husband

who is accused of an offence amounting to stripping off his wife in

public. Therefore, considering the given facts and circumstances of

the case, nature and gravity of the accusations and impact thereof on

the soul, mind and body of a woman, affecting her mental and

physical health beyond comprehension, I do not find it fit to enlarge

petitioner Abhishek Mangla on bail, exercising the power under

Section 438 Cr.P.C. Hence, bail petition [Cr.M.P(M) No. 1808 of 2020]

preferred by him is dismissed. Needless to say that he would not be

entitled to any further protection of interim bail granted vide order

dated 9.10.2020 in his favour.


19. Accordingly, Cr.M.P(M) Nos. 1809, 1810 and 1811 of 2020

are allowed and Cr.M.P(M) No. 1808 of 2020 is dismissed in aforesaid

terms.

Dasti Copy.

October 27, 2020 (Vivek Singh Thakur)


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