CNR MHNS010045122020 CR. No. I­101/2020, Cyber Police Station, Nashik registered
under sections 67, 67(A) of Information Technology Act.

Order below Exh.1 in Cri. Bail Application No.1654/2020.

{ Ganeshkumar Suresh Harale Vs. State }

The first bail application is filed under section 439 of the Code of Criminal Procedure, 1973 ( for short ‘the Cr.P.C.’) by the applicant­accused Ganeshkumar Suresh Harale, arrested on 17.11.2020 in connection with C.R. No. I­101/2020, dated 17.11.2020, filed in Cyber Police Station,Nashik, for the offences punishable under sections 67, 67(A) of Information Technology Act (for short ‘the IT’). He is in magisterial custody remand since 23/11/2020.

2.The application has been preferred on the grounds that the applicants­accused is innocent. He is falsely implicated in this crime. The informant and the applicant­accused were in live­in relationship and there was no complaint against the applicant accused. The applicant­accused is a doctor and is reputed person.

The FIR is delayed. The maximum punishment for the alleged offence is 5 years and it is triable by Ld. J.M.F.C. Investigation is practically over and no further physical custody of the applicantaccused is necessary. The health of applicant­accused would be deteriorated due to COVID­19 situation. He is permanent resident of Nashik and he is ready to abide with any condition imposed by this court. Hence, bail may be granted.

3.The learned APP Mrs. A.R. Patil has filed say at Exh. 04. She has opposed the bail application on the grounds that investigation is incomplete. Investigation pertaining to a pendrive in which the obscene videos of the informant are stored is yet to be done. Evidence would be destroyed, informant would be pressurized. Hence, bail may not be granted.

4.Heard both the sides. Perused the police papers. Learned Advocate Mr. M.M. Kurkute and Ld. APP Ms. A.R. Patil have submitted alongwith the line of their respective contentions.

5.As briefly stated. As per the FIR dated 17/11/2020, informant is resident of CIDCO Nashik and runs a trust for woman empowerment. She came in contact with the applicant­accused in the year 2012. They started living together in live­in­relationship.

The applicant ­accused got married in the year 2015. The informant delivered child in the year 2016. On 09/11/2020 the applicant accused made a WhatsApp video call to the informant. He wanted to visit the house of informant. The informant refused him. He told the informant to make a video call. The informant called him. She unclothe herself on the say of the applicant­accused. Without her consent the video call was recorded by the applicant­accused. It was seen by his wife Pooja. Pooja has forwarded the video many persons. The applicant­accused also forwarded the recorded video call to many persons with a message. Hence, FIR was registered.

6.During investigation the applicant accused was in PCR from 17/11/2020 to 23/11/2020. As per the say of investigating Officer one I phone and Samsung Company hardisk has been recovered during investigation. The objection of prosecution is pertaining to investigation of a pendrive. However, there is no relevant information pertaining to that pendrive revealed from the applicant­accused during six days of PCR. No whereabouts of that pendrive are on record. In such circumstances the ground of investigation of pendrive is not sound. Morever, it can be taken care of by imposing strength conditions on the accused. The applicant­ accused is a doctor. He is permanent resident of Nashik. There are no criminal antecedents. There are no circumstances on record to infer that he would flee from justice. Therefore, as of now there are no circumstances or purpose to keep the applicant accused behind bars.

7.Before concluding, it would be just and proper to lay down the ratio of Hon’ble supreme Court in the Case of Sanjay Chandra Vs. CBI, Criminal Appeal No. 2178 of 2011 (arising out of SLP (Cri) No. 5650 of 2011) decided on 23 November, 2011, wherein the Hon’ble Supreme Court has observed in para 14 as under :­

“14) In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative.

Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon.

The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un­convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity’ is the operative test.

In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un­convicted person for the purpose of giving him a taste of imprisonment as a lesson.”

8.The ratio laid down in Sanjay Chandra’s case, cited supra, is applicable to the case in hand. No useful purpose would be served by keeping him behind bars. There are no exceptional circumstances pointed out by the prosecution to reject the bail plea of the applicant­accused, when bail is the rule and jail is an exception. The objection of the prosecution can be taken care of by imposing certain conditions on the applicant­accused to give the regular attendance to the police station and not to destroy tamper or manipulate the electronic evidence in any kind and manner.

With this, I proceed to pass following order.

O R D E R

1 Application is hereby allowed.

2 Applicant/accused Ganeshkumar Suresh Harale be enlarged on bail, in Crime No.I­101/2020 registered with Cyber Police Station, Nashik on furnishing personal bond of Rs.25,000/­ with one solvent surety in the like amount.

3 He shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as dissuade them for disclosing such facts to the Court or to any police officer.

4 He shall not commit similar or any other offence and misuse the liberty granted by this court.

5 He shall not make any contact with informant and witnesses in any manner till completion of the trial.

6 He shall attend the court dates scrupulously and co­operate in progress of the trial.

7 He shall furnish his address proof, identity proof and mobile number and place of abode and also furnish the address and identity proof along with mobile number of two nearest relatives, residing in District Nashik.

8 He should attend the concerned police station on every Monday in between 10.00 am to 1.00 pm till completion of investigation.

9. He shall not destroy, alter, tamper, manipulate the electronic evidence of this case in any kind and manner. He shall submit electronic devices in his custody, if and when called by the investigating officer.

10 If the applicant­accused commits breach of any of the conditions mentioned above, the bail would be cancelled at the moment.

(Dictated and pronounced in open court)

Samarendra Digitally signed by Samarendra Prakashrao Prakashrao Naik Naik Nimbalkar Nimbalkar Date: 2020.12.07 13:24:26 +0530 (S.P.Naik­Nimbalkar ) 07.12.2020. Additional Sessions Judge,
Nashik.