Himachal Pradesh High Court
Shiv Chand vs State Of Himachal Pradesh on 28 February, 2018
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 108 of 2018 Decided on: 28th February, 2018 .
Shiv Chand ....Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 For the petitioner: Mr. Satpal Chauhan and Mr. r Dharamender Verma, Advocates.
For the respondent/State: Mr. Ashwani Sharma, Addl. AG, with Mr. Kamal Kant Chandel, Dy. AG and Mr. Rajat Chauhan, Law Officer.
ASI Mehar Chand, I.O. P.S. Nirmand, District Kullu, 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. 43 of 2016, dated 13.05.2016, under Sections 363, 366A, 376 IPC and Section 4 of POCSO Act, registered at Police Station Nirmand, District Kullu, 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 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 01/03/2018 22:57:59 :::HCHP 2neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so he may be released on bail.
3. Police report stands filed. As per the prosecution story, on .
13.05.2016 Shri Narmu Ram (complainant) reported the matter to the police that he has two daughters and elder daughter (prosecutrix), who is 17 years of age, went missing on 11.05.2016. The prosecutrix could not be traced despite best efforts. On 12.05.2016, when younger daughter of the complainant was on her way to school, one Krishnu met her and he made her to talk with the prosecutrix on his phone.
The prosecutrix was seen sitting in a bus at Panjeta with Krishnu by son of complainant's mama. On 12.05.2016 the petitioner telephoned the complainant and disclosed that he has married the prosecutrix. As per the complainant, the petitioner has taken his daughter, who is a minor, out of his custody. On the basis of the complaint, the police machinery was set into motion, a case was registered against the petitioner and the investigation ensued. On 17.05.2016 the prosecutrix was found in the house of the petitioner in village Taangling, Kinnaur and she was handed over to the complainant. The statements of the witnesses were recorded. Statement of the prosecutrix was also recorded on 18.05.2016, wherein she has stated that the petitioner took her with the purpose of marrying her and he also sexually assaulted her. The prosecutrix was subjected to medical examination and as per the medical opinion the prosecutrix may have ::: Downloaded on - 01/03/2018 22:57:59 :::HCHP 3 undergone sexual intercourse with a probable duration of less than one week. On 09.06.2016 the petitioner was arrested and since then he is judicial custody. The challan stands presented in the Court. Lastly, .
the prosecution has prayed that the bail application may be dismissed.
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 have argued that the petitioner is innocent and he is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice.
r He has further argued that no fruitful purpose will be served by keeping him behind the bars for an unlimited period. Conversely, the learned Additional Advocate General has argued that taking into consideration the age of the prosecutrix, the way the offence was committed and the seriousness of the offence, the application of the petitioner may be dismissed.
6. In rebuttal the learned counsel for the petitioner have argued that the petitioner cannot be kept behind the bars for an unlimited period. He has further argued that the petitioner is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, as he has three minor daughters and old mother to look after, so he may be enlarged on bail.
::: Downloaded on - 01/03/2018 22:57:59 :::HCHP 47. At this stage taking into considering the fact that the petitioner is behind the bars for approximately one year and eight months and also taking into consideration other aspects, which have .
come on record, that the prosecutrix was of the age of discretion, her visiting and accompanying the petitioner and also the fact that the petitioner is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, 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, who has been arrested by the police of Police Station Nirmand, District Kullu, H.P., in connection with FIR No. 43 of 2016, dated 13.05.2016, under Sections 363, 366A, 376 IPC and Section 4 of POCSO Act, registered at Police Station Nirmand, District Kullu, H.P., he shall be released on bail forthwith in this case, subject to his furnishing personal bond in the sum of `25,000/- (rupees twenty five thousand) with one surety in the like amount to the satisfaction of learned Trial Court. The bail is granted subject to the following conditions:
(i) That the petitioner will appear before the learned Trial Court 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 ::: Downloaded on - 01/03/2018 22:57:59 :::HCHP 5 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)
28th February, 2018 Judge
(virender)
r to
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