Himachal Pradesh High Court
Prem Dutt Son Of Sh. Babu Ram vs The State Of Jharkhand And Another on 31 August, 2022
Author: Satyen Vaidya
Bench: Satyen Vaidya
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 31st DAY OF AUGUST, 2022
BEFORE
.
HON'BLE MR. JUSTICE SATYEN VAIDYA.
CRIMINAL MISC.PETITION (MAIN) No. 1814 of 2022
Between:-
PREM DUTT SON OF SH. BABU RAM,
AGE 31 YEARS, RESIDENT OF VILLAGE,
LANA KHURD, P.O. THAKUR DWARA,
TEHSIL PACHHAD, DISTRICT SIRMOUR,
H.P.
...PETITIONER
(BY SH. ASHOK K TYAGI, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH ...RESPONDENT.
(BY SH. DESH RAJ THAKUR,
ADDITIONAL ADVOCATE GENERAL)
RESERVED ON: 29.08.2022.
DECIDED ON : 31.08.2022.
__________________________________________________________________
This petition coming on for order this day, the
Court, passed the following:
ORDER
Petitioner is accused in case registered vide FIR No. 23 of 2021 dated 21.04.2021 at Police Station, Pachhad, ::: Downloaded on - 31/08/2022 20:04:53 :::CIS 2 District Sirmaur, H.P. under Sections 363, 366-A, 376 of IPC and Section 6 of the POCSO Act, 2012.
2. The case has been registered against the petitioner .
on the basis of written complaint submitted by Smt.Pushpa Devi, mother of the victim on 21.04.2021 at Police Station, Pachhad, District Sirmaur, H.P. It was alleged that the complainant had three children, the eldest was a daughter aged 17 years, younger to her, the victim was 16 years and youngest was the son. All three children were studying in GSSS, Rama. The petitioner had acquaintance with the husband of the complainant. In November, 2020, the petitioner had kidnapped her daughter (victim) and after three days had left her with them. On 17.4.2021, the complainant alighted with the victim from bus at Sarahan and victim fled after dodging her mother. The entire family with the help of others searched for the victim for many days, but could not trace her. Accordingly, on 21.4.2021 the complaint was lodged.
3. During investigation the petitioner was traced at Chirgaon on 31.10.2021 through his mobile phone location.
::: Downloaded on - 31/08/2022 20:04:53 :::CIS 3Accordingly, the police recovered the victim from the company of the petitioner as they were staying in Chirgaon in the house of one Dev Raj. On medical examination of the victim, she was .
found pregnant. The fetus was aborted. Necessary samples were preserved. On DNA profiling, the victim and petitioner were found to be biological parents of the fetus. The age of the victim was said to be 15 years 9 months and 13 days on the date of offence.
4. Petitioner was arrested on 06.11.2021, after initial police remand, he is in judicial custody.
5. By way of instant petition, a prayer has been made to release the petitioner on bail under Section 439 Cr.P.C. on the ground that the petitioner is innocent. In fact, the petitioner had married the victim, who according to petitioner, was major. Petitioner is stated to be permanent resident of Village Lana Khurd, P.O. Thakur Dwara, Tehsil Pachhad, District Sirmaur, H.P. Petitioner has undertaken to abide by the conditions as may be imposed against him.
6. I have heard Mr. Ashok K. Tyagi, learned counsel for the petitioner and Mr. Desh Raj Thakur, learned Additional ::: Downloaded on - 31/08/2022 20:04:53 :::CIS 4 Advocate General for the respondent and have also perused the contents of the status report.
7. Petitioner has annexed a copy of statement of victim .
recorded under Section 164 Cr.P.C. during investigation of the case. Copies of statements of the victim and her mother complainant recorded during the trial of the case, have also been placed on record.
8. Learned counsel for the petitioner has contended that there is no legal basis for determining the age of victim at 15 years 9 months. According to him, the victim is major.
The basis of her age being 15 years 9 months, according to prosecution, is the entry in Aadhar Card as also the school record. It has been submitted that both these entries have been made at the instance of her parents, whereas, there is no authentic proof as to her date of birth. Learned counsel for the petitioner has drawn the attention of this Court to the statements made by the mother of the victim in the Court, wherein she stated that her marriage was solemnized prior to the year 2000. The victim was her eldest daughter and was born after about one year of the marriage. On such basis, ::: Downloaded on - 31/08/2022 20:04:53 :::CIS 5 learned counsel for the petitioner submits that there is a serious dispute as to the age of the victim.
9. While deciding the bail application, this Court will .
not minutely scan the evidence collected by the Investigating Agency or the statements recorded before the learned trial Court, however, such material can always be looked into in order to assess the seriousness and gravity of allegations against the bail petitioner.
10. Coming to the facts of the case, the victim was recovered from the company of the petitioner after about six months. The victim has nowhere alleged that petitioner had used force or deceit or any other alike means to take her with him. POCSO Act does not impose any special prohibition for grant of bail in offence(s) committed under the Act. Rather, Section 31 thereof makes provisions of Code of Criminal Procedure including provisions as to bail and bonds applicable to the proceedings therein.
11. The Hon'ble Supreme Court in Cr. Appeal No. 1391 of 2022 (Arising out of SLP (Crl.) No. 9317 of 2021) titled X (Minor) vs. The State of Jharkhand and another, decided ::: Downloaded on - 31/08/2022 20:04:53 :::CIS 6 on 21.02.2022 refused to accept 'love affair' as relevant consideration for grant of bail in POCSO offences keeping in view the age of victim in that case which was only 13 years.
.
In the instant case, however, there is a serious question mark on the age of the victim.
12. Petitioner is in custody since 06.11.2021. The trial is going to take some time before conclusion. The charges against petitioner are yet to be proved. Pre-trial incarceration is not the rule. No past criminal history has been attributed to the petitioner. Further detention of the petitioner in judicial custody will not serve any fruitful purpose.
13. Petitioner is permanent resident of Village Lana Khurd, P.O. Thakur Dwara, Tehsil Pachhad, District Sirmaur, H.P. and the Respondent-State has not expressed any apprehension regarding his fleeing from the course of justice and adversely affecting the trial. In any case, the petitioner can be put to terms for the purposes of safe, secure and unobstructed completion of trial.
14. In the peculiar facts and circumstances of the case, the petition is allowed and the petitioner is ordered to be ::: Downloaded on - 31/08/2022 20:04:53 :::CIS 7 released on bail in case registered vide FIR No. 23 of 2021 dated 21.04.2021 at Police Station, Pachhad, District Sirmaur, H.P. under Sections 363, 366-A, 376 of IPC and .
Section 6 of the POCSO Act, on his furnishing personal bond in the sum of Rs.25,000/- (Rs. Twenty Five Thousand) with one surety in the like amount to the satisfaction of learned Additional Sessions Judge, Fast Track Special Court (POCSO), Sirmaur District at Nahan, H.P. subject to the following conditions:
(i) Petitioner shall regularly attend the trial of the case before the learned Trial Court and shall not intentionally cause any delay in its conclusion.
(ii) Petitioner shall not in any manner tamper with the prosecution evidence and shall not dissuade any person acquainted with the facts of the case from disclosing the same in the Court.
(iii) Petitioner shall be liable for immediate arrest in the instant case in the event of petitioner violating the conditions of this bail.
(iv) That the petitioner shall not leave the territory of India without express leave of the Trial Court till completion of the trial.::: Downloaded on - 31/08/2022 20:04:53 :::CIS 8
15. Any observation made hereinabove shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by .
any observation made hereinabove. The petition is disposed of accordingly.
31st August, 2022. (Satyen Vaidya)
(GR) Judge
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