Himachal Pradesh High Court
Amit Kumar vs State Of H.P on 5 May, 2021
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr.MP(M) No. 788 of 2021
Date of Decision 5th May, 2021
________________________________________________________
Amit Kumar ...Petitioner
Versus
State of H.P. ....Respondent
Coram r
The Hon'ble Mr. Justice Vivek Singh Thakur, J.
Whether approved for reporting?1
______________________________________________________________
For the Petitioner: Shri Chander Narayan Singh,
Advocate, through Video
Conferencing.
For the Respondent: Mr. Gaurav Sharma, Deputy
Advocate General, through Video
Conferencing.
__________________________________________________________________
Vivek Singh Thakur, J.(Oral)
Petitioner has approached this Court under Section 438 of Code of Criminal Procedure (hereinafter in short 'Cr.PC') for enlarging him on bail in case FIR No. 48 of 2017, dated 28.7.2017, registered in Police Station Panchrukhi, District Kangra, under Sections 363, 366, 368, 323, 376, 344, 506 and 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 05/05/2021 20:13:03 :::HCHP 2 120-B IPC, Section 181 of Motor Vehicles Act and Sections 6 and 17 of Prevention of Children from Sexual Offences Act, 2012 (in .
short 'POCSO Act').
2 Status report stands filed, wherein, it is stated that on 28.7.2017, father of the victim had approached the police with complaint that on 23.06.2017 his 16 years 8 months old daughter had been kidnapped on motorcycle from her lawful guardianship by petitioner and by alluring her to marry him and since then, petitioner as well as victim were not traceable for a considerable long time, whereupon an untraced report was prepared by Investigating Agency on 25.1.2019.
3 It is further stated in status report that in December, 2019, petitioner and victim had filed a joint petition bearing Cr.MMO No. 759 of 2019 for quashing of FIR by disclosing therein that petitioner and victim had solemnized marriage on 17.1.2019, but, despite that, police and parents of victim had been behind the couple to harass them.
4 It is the case of prosecution that lateron, on 4.3.2020 victim came to Police Station along with her parents and had disclosed that she was kidnapped by petitioner on 24.6.2017 from Panchrukhi and on way, petitioner had offered something in cold drink leading to loss of her consciousness and thereafter, on ::: Downloaded on - 05/05/2021 20:13:03 :::HCHP 3 regaining consciousness, she had found herself detained in a room, where, her person was violated by petitioner. According to .
status report, after keeping the petitioner for some days in a room, she was taken to Bangalore and was kept in a closed room there for a considerable long time. Later, under the pressure and fear of petitioner as well as his father, she had solemnized marriage with petitioner on 17.1.2019 in Arya Samaj Mandir, Harit Vihar, Delhi.
5 It is also stated in status report that during investigation, victim was referred for medical examination and statements of victim as well as her mother were also recorded before the Magistrate under Section 164 Cr.P.C. and during investigation, victim had produced photocopies of her matriculation certificate, marriage certificates dated 17.1.2019 issued by Arya Samaj Mandir, Harit Vihar, Delhi as well as Sub Divisional Magistrate Court, Delhi. It has been found during investigation that petitioner and victim had solemnized the marriage on 17.1.2019 at Delhi, however, as stated in status report, petitioner had kidnapped victim when she was minor and petitioner's father had been pressurizing her to solemnize marriage with his son (petitioner) and petitioner was not allowing victim to use telephone, whereas, father of petitioner had been ::: Downloaded on - 05/05/2021 20:13:03 :::HCHP 4 continuously threatening her that in case she would not marry his son, then, her younger sister will be kidnapped, resulting into .
defamation of her parents and victim.
6 As per prosecution, victim had solemnized the marriage, on attaining age of 18 years, under compulsion and she was pressurized by petitioner and his father to file affidavit in High Court in Cr.MMO No.759 of 2019.
7 It is case of prosecution that victim was detained by petitioner in a room for a considerable long time and later on, she was employed in a showroom in Bangalore, but, petitioner had started doubting her character and had started beating and harassing her, whereupon, victim had approached her parents and maternal uncle telephonically and had told them her tale of sorrow, whereupon, her parents had managed air travel ticket for her from Bangalore to Chandigarh and on 21.1.2020 victim reached her parental home.
8 As stated in status report, father of petitioner was arrested on 5.5.2020 and after remaining in police custody, he was sent to judicial custody by learned Additional Chief Judicial Magistrate, Palampur on 19.5.2020. Thereafter, on 3rd July, 2020, he was enlarged on bail by this Court.
::: Downloaded on - 05/05/2021 20:13:03 :::HCHP 59 As per status report, sister of petitioner is also an accused, who has also been admitted on bail by the Special .
Judge, Kangra at Dharamshala vide order dated 20.6.2020 in a petition filed by her under Section 438 Cr.P.C.
10 As per status report, petitioner was not traceable and during investigation, his mobile number as well as mobile numbers of his parents, brother-in-law and friends were also kept on surveillance but from Call Details Record of these mobile numbers, no information of petitioner could be obtained and petitioner was not traceable after registration of FIR.
11 Status report is completely silent about interrogation of petitioner. It has been concluded by saying that in compliance of order passed by this Court, petitioner has been bound down to join the investigation after accepting his personal and surety bonds by Investigating Officer. Lastly it is stated that after receiving the report of Regional Forensic Science Laboratory, Dharamshala, challan would be presented in Court.
12 Learned counsel for petitioner submits that affidavit filed by victim after solemnization of marriage is on record, which has been duly sworn before Notary Public in Sub Divisional Court, Amb, District Una wherein victim had categorically stated that being annoyed by beatings given by her parents, she had left her ::: Downloaded on - 05/05/2021 20:13:03 :::HCHP 6 home and had been residing with her friend and she was not kidnapped by anybody by alluring her, but, she had left her .
house with her own volition and later on, she had solemnized the marriage with her free will and consent with petitioner on 17.1.2019 at Delhi.
13 It is also pointed out by learned counsel for petitioner that victim was allegedly taken to Bangalore forcibly but report is completely silent about the time and means about travel from Himachal to Bangalore and further marriage was solemnized at Delhi and petition was filed at Shimla which clearly indicates that victim was residing with petitioner with her own will and was frequently travelling from one place to another. He has further pointed out that in status report, by referring the statement of victim, it has been stated that she was detained in a room by petitioner and was not allowed to have telephonic contact with anybody including her parents and therefore, victim could not report the matter to police or her parents and also could not disclose her place of detention. He has pointed out that at the same time, it is also stated in status report, that victim had been serving in a showroom in Bangalore and during that time, petitioner had started doubting her character. According to him, both statements cannot stand together and being contradictory ::: Downloaded on - 05/05/2021 20:13:03 :::HCHP 7 to each other, the same create serious doubt about veracity of statement now being made by victim, who is, now-a-days, under .
the tremendous pressure of her parents and relatives and thus, the prosecution story based on her statement made under pressure of her parents cannot be believed to curtail the personal liberty of petitioner.
14 It is also submitted by learned counsel for petitioner that petitioner is permanent resident of Himachal Pradesh and as earlier untraced report in FIR was filed, but, the same has been revived in March, 2020 and petitioner was serving at Bangalore and had not come to his native place earlier. He could not submit himself to Investigating Agency however, now he has produced himself to Investigating Agency and in status report, no prayer for his custodial interrogation has been made, rather, it is stated that after receiving the report of RFSL Dharamshala, challan is to be presented in Court and therefore, no purpose shall be served by detaining the petitioner behind the bars.
15 Without commenting on merit on plea of either party, considering entire facts and circumstances of the case, I find that it is a fit case, where petitioner can be enlarged on bail at this stage. Accordingly, petitioner is directed to be enlarged on bail in case FIR No. 48 of 2017, registered in Police Station Panchrukhi, ::: Downloaded on - 05/05/2021 20:13:03 :::HCHP 8 District Kangra, subject to furnishing his personal bond in the sum of Rs.50,000/- with one surety in the like amount to the .
satisfaction of the concerned trial Court/Special Judge, within two weeks from today and also subject to following further conditions:-
(i) That the petitioner shall make himself available during the investigation as well as trial on each and every date as and when required;
(ii) That the petitioner shall not directly or r indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;
(iii) That the petitioner shall not obstruct the smooth progress of the investigation as well as trial;
(iv) That the petitioner shall not jump over the bail and shall inform, in writing, regarding change of address, land line number and/or mobile number, if any, in advance, to concerned Police Station;::: Downloaded on - 05/05/2021 20:13:03 :::HCHP 9
(v) That the petitioner shall not commit
the offence similar to the offence to
which he is accused or suspected or
.
the commission of which he is
suspected;
(vi) In the event of repetition of
commission of offence, bail granted in
present case shall be liable to be
cancelled on taking appropriate steps
by prosecution/police;
(vii) That the petitioner shall not leave
India without prior permission of Court;
(viii) That petitioner shall not misuse his liberty in any manner.
16. It will be open to the prosecution to apply for imposing any such other or further condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice. It will also be open to the trial Court/Magistrate to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.
17. In case the petitioner violates any condition imposed upon him, his 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.
::: Downloaded on - 05/05/2021 20:13:03 :::HCHP 1018. 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 18.3.2013.
19 Any observation made in this order shall not affect the merits of case in any manner and will strictly confine for the disposal of this bail application filed under Section 438 of Code of Criminal Procedure 1973.
20. The petitioner is 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, they may verify the order from the High Court website or otherwise.
Petition stands disposed of.
Dasti copy on usual terms.
May 05, 2021 (Vivek Singh Thakur)
(ms) Judge
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