Himachal Pradesh High Court
Sh. Parkash Chand vs State Of Himachal Pradesh on 4 February, 2022
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 4th DAY OF FEBRUARY, 2022
.
BEFORE
HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA
CRIMINAL MISC. PETITION (MAIN) No. 2397 of 2021
Between:
SHUKAL KUMAR, SON OF LATE
SH. PARKASH CHAND, AGED 27
YEARS, RESIDENT OF VILLAGE
AND PO BANOLI, TEHSIL JAWALI
& DISTT. KANGRA, HIMACHAL
PRADESH.
......PETITIONER
(BY MR. YASHVEER SINGH
RATHORE, ADVOCATE.)
AND
STATE OF HIMACHAL PRADESH.
......RESPONDENT
(BY MR. SHIV PAL MANHANS,
ADDITIONAL ADVOCATE
GENERAL, WITH MR. RAJU
RAM RAHI, DEPUTY ADVOCATE
GENERAL.)
SI MANJIT SINGH, POLICE
STATION JAWALI, DISTT.
KANGRA, H.P.
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1
WHETHER APPROVED FOR REPORTING? Yes.
This petition coming on for orders this day, the Court passed the following:
ORDER
.
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. 80 of 2021, dated 24.05.2021, under Sections 376, 506 IPC and Section 6 of POCSO Act, registered at Police Station Jawali, 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 neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, as he is permanent resident of the place. No fruitful purpose 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 24.05.2021 the prosecutrix (name withheld) made a written complaint to the police, wherein she alleged that during the month of March Shukal Kumar (petitioner herein) committed forcible sexual intercourse with her and thereafter he repeated the same act many times. The prosecutrix further alleged that the petitioner threatened her. Upon the complaint, so made by the complainant, police registered a case under the apt sections and the investigation ensued. Statement of the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. ::: Downloaded on - 04/02/2022 20:12:07 :::CIS 3 prosecutrix was recorded by the police and she was medically examined. Statement of the prosecutrix was also recorded under Section 164 Cr.P.C. Police procured the date of birth .
records of the prosecutrix and she was found to be born on 18.05.2005. On 24.05.2021 the petitioner was arrested and medically examined. Thereafter, the police completed all the codal formalities. Police prepared the spot map, effected the relevant recoveries and recorded the statements of the witnesses. As per the police, after completion investigation, challan stands presented in the learned Trial Court and now the case is listed for 26.02.2022. RFSL report of the reveals that there is nothing suggestive of sexual intercourse. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner has committed a heinous offence, so in case, at this stage, if he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice. It is prayed that at this stage, the bail application of the petitioner be dismissed.
4. I have heard the learned Counsel for the petitioner, learned Additional Advocate General for the State and gone through the records, 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 neither in a position to tamper with the prosecution evidence nor in a ::: Downloaded on - 04/02/2022 20:12:07 :::CIS 4 position to flee from justice, as he is permanent resident of the place. No fruitful purpose will be served by keeping the petitioner behind the bars for an unlimited period, as .
investigation is complete, even challan stands presented in the learned Trial Court, so the custody of the petitioner is not at all required by the police for any purpose. Moreover, RFSL report clearly reveals that there is nothing suggestive of sexual intercourse. Therefore, the petition may be allowed and the petitioner may be enlarged on bail. Conversely, the learned Additional Advocate General has argued that the petitioner has committed a serious offence, so in case, if he is enlarged on bail, he may flee from justice and may tamper with the prosecution evidence. It is prayed that the bail application of the petitioner be dismissed.
6. In rebuttal the learned Counsel for the petitioner has argued that the petitioner is neither in a position to flee from justice nor in a position to tamper with the prosecution evidence, as he is permanent resident of the place. Investigation is complete and even challan stands presented in the learned Trial Court, so the custody of the petitioner is not at all required by the police for any purpose. Moreover, RFSL report clearly reveals that there is nothing suggestive of sexual intercourse. It has been argued that the petitioner is behind the bars for the last about eight months and he cannot be kept behind the bars for an unlimited period, so the petitioner may ::: Downloaded on - 04/02/2022 20:12:07 :::CIS 5 be enlarged on bail by allowing the instant bail petition.
7. At this stage, considering the age of the petitioner, who is only 27 years old and that of the prosecutrix, the manner .
in which the offence is alleged to have been committed by the petitioner, the fact that RFSL report reveals that there is nothing suggestive of sexual intercourse, the petitioner is neither in a position to tamper with the prosecution evidence, nor in a position to flee from justice, as he is permanent resident of the place, moreover investigation is complete, even challan stands presented in the learned Trial Court, so the custody of the petitioner is not at all required by the police for any purpose, also considering the facts that the petitioner is behind the bars for the last about eight months and he cannot be kept behind the bars for an unlimited period, the petitioner is ready and willing to abide by the terms and conditions of bail, in case he is enlarged on bail and also considering the overall facts, which have come on record, and without elaborately discussing the same at this stage, this Court finds that the present is a fit case where the judicial 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, in case FIR No. 80 of 2021, dated 24.05.2021, under Sections 376, 506 IPC and Section 6 of POCSO Act, registered at Police Station Jawali, District Kangra, H.P., shall be released on bail forthwith in this case, subject to his furnishing personal ::: Downloaded on - 04/02/2022 20:12:07 :::CIS 6 Cr.MP(M) No. 2397 of 2021 bond in the sum of Rs.25,000/ (rupees twenty five 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:
(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 r 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.
9. Needless to say that the observations made hereinabove are only confined for adjudication of the present case and the same shall have no bearing on the merits of the main case, which shall be adjudicated on its own.
Copy dasti.
( Chander Bhusan Barowalia )
4th
February, 2022 Vacation Judge
(virender)
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