Himachal Pradesh High Court
Manish vs State Of Himachal Pradesh on 12 September, 2019
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 1669 of 2019 Decided on: 12th September, 2019 Manish ....Petitioner .
Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1 Yes.
For the petitioner: Mr. Vijender Katoch, Advocate.
For the respondent/State: Mr. Shiv Pal Manhans, Additional Advocate General, with Mr. Raju Ram Rahi and Mr. Gaurav Sharma, Deputy r Advocates General.
SI Kuldeep Singh, Police Station Jawalamukhi, District Kangra, H.P. ______________________________________________________________________ Chander Bhusan Barowalia, Judge. (oral).
The present bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release in case FIR No. 106 of 2019, dated 27.06.2019, under Sections 363, 366A and 376 IPC and Section 4 of POCSO Act, registered in Police Station Jawalamukhi, District Kangra, H.P.
2. As per the averments made in the petition, the petitioner is innocent and has been falsely implicated in the present case. He is resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. No fruitful 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 29/09/2019 04:17:28 :::HCHP 2purpose will be served by keeping him behind the bars for an unlimited period, so he be released on bail.
3. Police report stands filed. As per the prosecution story, on .
26.06.2019 police recorded the statement the mother of the prosecutrix under Section 154 Cr.P.C. She (complainant) alleged that on 26.06.2019 she alongwith her two minor daughters was present in the home and her husband had gone to his work. At about 04:30 p.m., she was busy doing domestic work and when she came back to home, she did not find her younger daughter (prosecutrix, name withheld).
Despite best efforts, the prosecutrix could not be traced.
r The
complainant had suspicion that the petitioner took away the
prosecutrix. On the basis of the statement of the complainant, police registered a case and the investigation ensued. Police found the prosecutrix with the petitioner and she was handed over to her mother (complainant). Police prepared the spot map and recorded the statement of the prosecutrix. The prosecutrix was medically examined and the Medical Officer did not rule out the possibility of sexual intercourse. The prosecutrix divulged that on 26.06.2019 the petitioner sexually molested her in a room near a dhaba, where he used to work. So, on 27.06.2019 the petitioner was arrested and was medically examined. The prosecutrix identified the said dhaba, where she was sexually molested. Police prepared the spot map of that place and also recorded the statements of the witnesses. Police also made ::: Downloaded on - 29/09/2019 04:17:28 :::HCHP 3 the relevant recoveries. Statement of the prosecutrix was also recorded under Section 164 Cr.P.C., wherein she stated that she does not want to live with her parents, so she was sent to Open Shelter Home and on .
02.07.2019 she was handed over to her parents. Police procured the records qua the date of birth of the prosecutrix. Nothing significant was found in the report of RFSL qua the sexual intercourse, however, the possibility of sexual intercourse was not ruled out. Police presented the challan in the learned Trial Court and after the receipt of DNA and psychiatry reports, supplementary challan will be presented in the Court. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner committed a heinous offence and there is possibility that in case at this stage he is enlarged on bail, he may flee from justice or tamper with the prosecution evidence.
4. I have heard the learned Counsel for the petitioner, learned Additional Advocate General for the State and gone through the record, including the police report, carefully.
5. The learned Counsel for the petitioner has argued that the petitioner has been falsely implicated in the present case. He has further argued that the petitioner is resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. He has argued that no fruitful purpose will be served by keeping the petitioner behind the bars for an unlimited period, especially when the investigation is complete and the challan stands ::: Downloaded on - 29/09/2019 04:17:28 :::HCHP 4 presented in the Court, so the bail application be allowed and the petitioner be enlarged on bail. Conversely, the learned Additional Advocate General has argued that the petitioner was found involved in .
a heinous offence and in case at this stage, is he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice. He has prayed that the bail application of the petitioner be dismissed.
6. In rebuttal the learned Counsel for the petitioner has argued that the petitioner cannot be kept behind the bars for an unlimited period, especially when the investigation is complete, challan stands presented in the Court, so the application be allowed and the petitioner be enlarged on bail.
7. At this stage, considering the medical report, age of the petitioner and that of the prosecutrix, the statement of the prosecutrix made under Section 164 Cr.P.C., the fact that the petitioner is permanent resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, custody of the petitioner is not at all required by the police, as the investigation is complete and the challan stands presented in the Court, considering the overall facts, which have come on record, and without discussing the same at this stage and also the fact that the petitioner cannot be kept behind the bars for an unlimited period, so this Court finds that the present is a fit case where the judicial ::: Downloaded on - 29/09/2019 04:17:28 :::HCHP 5 discretion to admit the petitioner on bail is required to be exercised in his favour. Accordingly, the petition is allowed and it is ordered that the petitioner, who has been arrested by the police, in case FIR No. 106 .
of2019, dated 27.06.2019, under Sections 363, 366A and 376 IPC and Section 4 of POCSO Act, registered in Police Station Jawalamukhi, District Kangra, H.P., shall be released on bail forthwith in this case, subject to his furnishing personal bond in the sum of `20,000/-
(rupees twenty thousand) with one surety in the like amount to the satisfaction of the learned Trial Court. The bail is granted subject to the following conditions: r
(i) That the petitioner will appear before the learned Trial Court/Police/authorities as and when required.
(ii) That the petitioner will not leave India without prior permission of the Court.
(iii) That the petitioner will 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 the Investigating Officer or Court.
8. In view of the above, the petition is disposed of.
Copy dasti.
(Chander Bhusan Barowalia)
12th September, 2019 Judge
(virender)
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