Himachal Pradesh High Court
Akshay Chauhan vs State Of H.P on 30 November, 2022
Author: Virender Singh
Bench: Virender Singh
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.M.P(M) No. 2166 of 2022 .
Reserved on : 25.11.2022 Decided on : 30.11.2022 Akshay Chauhan ...Applicant Versus State of H.P. ...Respondent ___________________________________________________ Coram Hon'ble Mr. Justice Virender Singh, Judge Whether approved for reporting?
___________________________________________________ For the Applicant : Mr. Vivek Singh Attri and Mr. Abhinav Purohit, Advocates.
For the respondent : Mr. Shiv Pal Manhans, Additional Advocate General with Mr. Bhupinder Thakur, Deputy Advocate General.
Virender Singh, Judge The applicant Akshay Chauhan has filed the present bail application under Section 438 of the Code of Criminal Procedure with a prayer to direct the police/I.O. to release the applicant on bail, in the event of his arrest, in case FIR No. 26/2022, dated 20.09.2022 under Section 506, 377, 34of the Indian Penal Code read with Sections 6 and 10 of the ::: Downloaded on - 30/11/2022 20:34:31 :::CIS 2 Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Act') registered with .
Women Police Station, Nahan, District Sirmour, H.P.
2. According to the applicant, he is the real maternal uncle of the child victim and he has falsely been implicated in this case, at the instance of the father of the child victim.
Elaborating his stand, it has been pleaded in the bail application that his sister and the father of the child victim had married in the year 2008. The father of the child victim used to harass his sister and the applicant on one pretext or the other. The details, with regard to matrimonial discord, have been given in the bail application. Much has been stated about the character of the father of the child victim in the bail application.
3. It is also the case of the applicant that FIR No. 31 of 2019 under the provisions of Section 498-A IPC has been lodged by the sister of the bail applicant against the father of the child victim. After the registration of FIR, the father of the child victim had made an unsuccessful attempt to implicate the sister of the bail applicant by filing a frivolous complaint under Section 156(3) Cr.P.C. Later on, the said complaint was dismissed on 22.02.2021 by the JMFC, Nahan, District Sirmour, H.P. The father of the child victim had also filed an ::: Downloaded on - 30/11/2022 20:34:31 :::CIS 3 application seeking custody of his two sons before the District Judge. The child victim is also stated to be residing in the .
custody of his father. It has been also been alleged that the father of the child victim has allured his children to be with him.
4. On the basis of above facts, a prayer has been made to issue the directions under Section 438 Cr.P.C as prayed for in the bail application.
5. Along-with the application, copy of FIR No. 31 dated 17.09.2019 under Section 498A IPC registered with the Women Police Station, Nahan, copy of complaint dated 23.03.2018 moved by the Director, Sainik Welfare, Himachal Pradesh to the father of the child victim, copy of complaint made by the Chowkidar of the rest house of Sainik Welfare Board, Nahan, copy of complaint filed by the father of the child victim under Section 156(3) Cr.P.C, his statement recorded by the I.O.
Kachha Tank, Nahan, statement of the sister of the bail applicant, statement of Smt. Nutan Parmar, statement of Sh.
Chanchal Kumar, Statement of Sh. Kishan Singh Kundlas, statement of Smt. Swati Dhiman, statement of Smt. Lalita Devi and statement of Smt. Shyama Devi have also been annexed.
6. When put on notice, the police has filed the status report disclosing therein that on 20.09.2022 one complaint ::: Downloaded on - 30/11/2022 20:34:31 :::CIS 4 was received in the Women Police Station through Superintendent of Police, Sirmour. The said complaint was .
moved by the child victim. The contents of the same are reproduced as under:-
"I was residing with my Mother from past two years. During my stay with my mother Generally my Mother used to visit to place X (name of the place withheld to protect the identity of the child victim) at the residence of Maternal Uncle Akshay Chauhan. During our stay at Place X my Maternal Uncle Akshay Chauhan quite often used to sleep into my bed in the night when everybody used to be in deep asleep. I generally used to get awaken up by the touches of my Maternal Uncle on my Buttocks. My Maternal Uncle Akshay used to put my hand in the front side of his underwear for long duration. Since Akshay Chauhan is a quarrelsome dreaded person so I used to stay quiet and bear the torture of my Maternal Uncle. He used to threaten me from telling the same to anyone. On the day of Raksha Bandhan my Mother again took me and my younger brother to place X. As usual my Maternal uncle slipped into my bed in the middle of the night and I awoke by severe pain in my Buttocks. I found that my underwear and nikker was pulled down by Akshay Chauhan and his own underwear was also down and he was - hugging me tightly from behind. When I could not bear the pain I jumped out of the bed and went outside the lawn. Akshay Chauhan came behind me and told that he would kill me if I tell to anyone. Then he went to his room. Due to fear I ::: Downloaded on - 30/11/2022 20:34:31 :::CIS 5 could not tell to anyone. I could not sleep that night due to pain in my Buttocks. Then the next day we .
came back to Nahan with my mother. Then decided never to go place X again. Now again when my mother planned to go to place X along with my younger brother, I was scared to go therein and instead decided to go to my father from whom my Mother had been staying separately. After reaching to my father in 4-5 days I told him about Akshay Chauhan's bad act with me. On this my father felt very bad and started crying imagining about torture I underwent. Till today, I am not able to sleep properly, thinking that incident. Kindly take necessary legal action against my Maternal Uncle Akshay Chauhan.
Thanking you, Yours faithfully."
7. On the basis of complaint, the police found a prima-
facie case for the commission of offence under Section 506 IPC and Section 10 of the POCSO Act. After the registration of FIR, the police machinery swung into motion. The child victim was medico legally examined at Civil Hospital, Nahan and his MLC was obtained. On the perusal of the MLC, it was found that the child victim, before the doctor, who had conducted his medico legal examination, had also alleged the allegations of unnatural sex against the bail applicant, upon which, the police added the provisions of Section 377 IPC read with Section 6 of the POCSO Act. Initially, the provisions of Section 10 of the POCSO Act were deleted from the FIR. Thereafter, the ::: Downloaded on - 30/11/2022 20:34:31 :::CIS 6 statements of the child victim under Section 161 Cr.P.C and Section 164 Cr.P.C were got recorded.
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8. It is the specific case of the police that in the statement under Section 161 Cr.P.C., the child victim leveled the allegations against the accused that he had touched his private part improperly and also put the hand of the child victim in his underwear, whereas, in the statement of the doctor, the child victim had leveled allegations of unnatural sex against the accused.
9. On 30.09.2022, while adjourning the case for 14.10.2022, the interim protection under Section 438 Cr.P.C was granted to the bail applicant. Consequently, he has joined the investigation. In the status report dated 14.10.2022, it has been mentioned that during the investigation, the birth certificate of child victim was also obtained, according to which, his age at the time of alleged incident was found to be 13 years, 3 months and 5 days. The bail applicant has joined the investigation. The physical evidence collected by the police was sent to the CFSL, Junga. They have also given the other criminal history of the bail applicant, which is reproduced as under:-
1. FIR No. 128 of 2015 dated 20.07.2015 under Sections 325, 341 and 504 IPC.
2. FIR No. 83 of 2011 dated 10.03.2011 under Sections 451, 323 and 341 IPC.::: Downloaded on - 30/11/2022 20:34:31 :::CIS 7
3. FIR No. 323 of 2014 dated 29.09.2014 under Sections 451, 323, 34 IPC.
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10. It has also been mentioned that in case at Serial No.1, the bail applicant has been acquitted, whereas, case at Serial No.2 has been compounded. It is further case of the police that on 6.10.2022, a complaint of the father of the child victim through S.P. Sirmour was received, in which, an apprehension of the threat to the life of the child victim has been expressed. It has been mentioned in the status report that the accused is very clever person and in case of confirmation of interim protection, he may coerce the child victim and allure him. However, it is the stand of the police that the investigation is complete in the case.
11. In the status report, which has been filed on 25.11.2022, the factual position with regard to the receipt of report from the CFSL has been pleaded. It has specifically been mentioned in the status report that pursuant to the directions of this Court, the bail applicant has been arrested and released on bail on 13.11.2022. Section 10 of POCSO Act has again been added in this case. During the investigation, the mother of the child victim as well as maternal aunt were also associated and interrogated and Section 506 read with Section 34 IPC were found against them. Hence, both of them were ::: Downloaded on - 30/11/2022 20:34:31 :::CIS 8 bound down as per provisions of Section 41-A Cr.P.C.
12. On the basis of investigation, it has also been found .
mentioned that the parents of the child victim were living separately from 2019 and both of them were litigating with each other. They were having two sons and the child victim is the elder one. After 2019, both the children were residing with their mother and during school vacation, they used to visit their maternal grand-mother. Accused is still bachelor. It is further stand of the police that on 11.08.2022, the offence for which the bail applicant has been named, has been committed by the accused. The child Welfare Council has handed over the custody of the child victim to his father.
13. On the basis of above facts, the learned Additional Advocate General has prayed that the bail application may kindly be dismissed.
14. The only apprehension, which has been expressed by the police, in the status report, is that, in case, the interim protection given to the bail applicant, is confirmed, he may coerce the witnesses.
15. The investigation, in the present case, is complete and certainly, the trial against the accused will take sufficient long time for its culmination, as such, no useful purpose would be served by sending the bail applicant, in judicial custody ::: Downloaded on - 30/11/2022 20:34:31 :::CIS 9 before the trial. The presumption of innocence is still available to the bail applicant. Although, the details of the cases, which .
have been registered against the accused have been given, but, it is not the case of the police that the bail applicant has been convicted in any of the cases. In such circumstances, the registration of those cases cannot be seen as a disadvantage to the bail applicant.
16. At the time of deciding the bail application, detailed discussions of the stand taken by the respective parties should be avoided, as, it will cause prejudice to the case of the prosecution, as well as, the accused.
17. During the period, when the interim protection from the arrest was in favour of the bail applicant, there is nothing on the file to suggest that he has misused that liberty. He has complied with the directions issued by this Court and joined the investigation.
18. So far as the apprehensions, which have been expressed by the police, in the status report are concerned, reasonable conditions can be imposed, in case, the interim protection is confirmed by this Court. The bail applicant is the resident of the area, which falls within the territorial jurisdiction of the learned Special Judge dealing with the case of rape/POCSO and except the apprehensions, police could not ::: Downloaded on - 30/11/2022 20:34:31 :::CIS 10 make out a case as to why the interim protection granted to the bail applicant should not be confirmed.
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19. The alleged role played by the accused, in the commission of the offence(s) is yet to be proved during the trial, as such, this Court is of the view that the interim protection granted to the bail applicant is liable to be confirmed.
Consequently, bail application is allowed and the interim protection granted to the bail applicant, vide order dated 30.09.2022, is made absolute. However, the same shall be subject to the following conditions:-
1. He shall made himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;
2. He shall not tamper with the prosecution evidence nor hamper the investigation of the case, in any manner whatsoever;
3. He shall not make any inducement, threat or promises to any person acquainted with the facts of the case, so as to dissuade them from disclosing such facts to the Court or the Police Officer; and
4. He shall not leave the territory of India without the prior permission of the Court.
20. Any observations, made hereinabove, shall not be taken as an expression of opinion of this Court, on merits of the case, as these observations, are confined only to the disposal of the present bail application.::: Downloaded on - 30/11/2022 20:34:31 :::CIS 11
21. It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions is violated .
by the bail applicant.
22. Petitioner/bail applicant may produce a downloaded copy of the order passed by the Court before the trial Court and the trial Court shall not insist for the certified copy of order, rather passed of order can be verified from the web-page of this Court.
November 30 , 2022
(naveen)
r to ( Virender Singh )
Judge
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Submitted that I have received a telephonic message from Sh. Vinod Kumar, Judgment Writer of this Registry to the effect that his daughter is not feeling well and he has to .
take her to the hospital. He, therefore, has requested that he may be treated on leave for today i.e. 29.11.2022. Regular leave application will be submitted at the time of joining duties.
Submitted please.
( Naveen Deepak )
Private Secretary
Court No. IX
Ld. PPS to HCJ
r to
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