Himachal Pradesh High Court
Shiv Kumar vs State Of H.P on 13 July, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.M.P(M) No. 1635 of 2023 .
Reserved on : 05.07.2023
Decided on: 13th July, 2023
Shiv Kumar .......Applicant
Versus
State of H.P. ...Respondent
Coram
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1 For the applicant: Mr. Kul Bhushan Khajuria, r Advocate.
For the respondent: Mr. Mohinder Zaraick, Addl. A.G with Mr. Tejasvi Sharma, Addl.
A.G, Mr. H.S. Rawat, Addl. A.G, Ms. Avni Kochhar, Dy. A.G and Ms. Leena Guleria, Dy.A.G. ASI Sunita Sharma I/O Women Police Station, Chamba, District Chamba, H.P. is also present in person along-with the record.
Virender Singh, Judge.
Applicant-Shiv Kumar has filed the present application, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.PC'), for releasing him on bail, during the pendency of trial, in case FIR No. 24 of 2023, dated 12th May, 2023, registered with Women Police Station 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 13/07/2023 20:34:59 :::CIS 2Chamba, District Chamba, H.P., under Section 376 of the .
Indian Penal Code (hereinafter referred to as 'IPC').
2. As per applicant, he is permanent resident of the address mentioned in the bail application and having deep roots in the society. According to him, he has been arrested in a false case. According to him, the allegations levelled against him are false and he has not committed the offence, for which, he has been arrested by the police in this case.
3. Asserting the fact that he has been falsely implicated in this case, it is the case of the applicant that the investigation in the present case is complete and nothing is to be recovered from him.
4. Apart from this, number of undertakings have also been given on behalf of the applicant, for which, the applicant is ready to abide by, in case, released on bail, during the pendency of the trial.
5. The applicant has earlier tried his luck before the learned Sessions Judge, Chamba by filing a bail application, which was registered as bail application No. 105 of 2023, however, the said application was dismissed by the learned Sessions Judge vide order dated 15.06.2023.
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6. On the basis of above facts, Mr. Kul Bhushan Khajuria, Advocate, appearing for the applicant has prayed that during the pendency of the trial, the applicant be released on bail.
7. When put to notice, the police has filed the status report disclosing therein that on 12.05.2023, the prosecutrix moved a complaint before SHO, Women Police Station Chamba, alleging that for the last one year, the accused had been talking with her on the promise of marriage and had also taken her to Chamba 2-3 times. On 10.5.2023 around 7.30 PM, accused made a phone call to her that he is in a marriage at village Lothal and is coming to her house.
8. On his inquiry, she told that her parents have also gone to attend a marriage at village Goli and she is at home along with her younger brother and grand father. She refused him to come, but he did't agree and and around 9 PM, he made a phone call to her from outside her house. Due to fear, she brought him to her kitchen and served food to him.
9. Thereafter, she asked him to return back, but he did not agree and said that since he is going to marry her, ::: Downloaded on - 13/07/2023 20:34:59 :::CIS 4 there is nothing bad to stay together. Despite her requests, he .
entered her room and committed sexual intercourse with her twice. During the night itself, her brother came back from the marriage and noticed the accused in her room. On the next morning, she asked the accused to solemnize marriage, but he refused. Thereafter, she disclosed the incident to her parents. Her father reported the matter to the police at Police Post Gehra, where accused agreed to marry her, but, again refused to marry her. The accused had committed sexual intercourse with her on the false promise of marriage and, therefore, action has been sought to be taken against the accused
10. On the basis of this complaint, case FIR under Sections 376 IPC was registered against the accused (applicant) at Women Police Station, Chamba. During investigation, the prosecutrix was got medically examined. The accused (applicant) was interrogated and on finding evidence against him, he was arrested He got medically examined in Medical College, Chamba. Statement of the victim under Section 164 Cr.PC, was got recorded. Statements of other witnesses were also recorded. On the identification of ::: Downloaded on - 13/07/2023 20:34:59 :::CIS 5 the prosecutrix, spot map was prepared and photographs .
were clicked.
11. It is further case of the police, in the status report that investigation, in the present case, is complete and the challan has been filed in the Court on 01.07.2023.
12. Apart from this, the police has also mentioned the apprehensions qua the fact that in case, the applicant is released on bail, he may coerce the witnesses. As such, a prayer has been made to dismiss the bail application.
13. The role allegedly played by the applicant in the commission of the offence will be proved during the course of trial. No other criminal history of the applicant has been mentioned or argued by learned Additional Advocate General during the course of arguments. The presumption of innocence is still available to the applicant.
14. Considering the fact that the investigation, in the present case, is complete and challan under Section 173(2) Cr.P.C has been filed, the applicant in the judicial custody, as the chances of commencement and conclusion of trial in near future are not so bright.
::: Downloaded on - 13/07/2023 20:34:59 :::CIS 615. Moreover, the bail application cannot be rejected .
as a mere punishment as pre-trial punishment is prohibited under the law.
16. So far as the apprehensions, as expressed, in the status report, are concerned, for those apprehensions, reasonable conditions can be imposed.
17. The cumulative effect of the above discussion is that the applicant is able to make out a case for releasing him on bail, during the pendency of the trial, in the aforementioned case. Consequently, the bail application is liable to be allowed and is accordingly allowed.
18. The applicant is ordered to be released on bail in case FIR No. 24 of 2023, dated 12th May, 2023, registered with Women Police Station Chamba, District Chamba, H.P., under Section 376 IPC, on his furnishing personal bail bond, in the sum of ₹50,000/-, with one surety of the like amount, to the satisfaction of learned Sessions Judge, Chamba. This order, however, shall be subject to the following conditions:
a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of ::: Downloaded on - 13/07/2023 20:34:59 :::CIS 7 hearing and if prevented by any reason to do so, seek exemption from appearance by filing .
appropriate application;
b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
c) 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
d) He shall not leave the territory of India without the prior permission of the Court.
19. Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail application.
20. It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found violated by the applicant.
21. The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, Chamba through e-mail, with a direction to enter the date of grant of bail in the e-prison software.
::: Downloaded on - 13/07/2023 20:34:59 :::CIS 822. In case, the applicant is not released within a .
period of seven days from the date of grant of bail, the Superintendent of Jail, Chamba is directed to inform this fact to the Secretary, DLSA, Chamba. The Superintendent of Jail, Chamba is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court, within a submitted to this Court.
r to period of one month from today, then, the said fact be July 13, 2023 ( Virender Singh ) (naveen) Judge ::: Downloaded on - 13/07/2023 20:34:59 :::CIS