Himachal Pradesh High Court
Umesh Kumar vs State Of Himachal Pradesh on 19 December, 2017
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 1400 of 2017 Decided on: 19th December, 2017 Umesh Kumar ....Petitioner Versus .
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 NO.
For the petitioner: Mr. Yash W. Chauhan & Mr. Raj Negi, Advocates.
For the respondent/State: Mr. Rajat Chauhan, Law Officer.
SI/SHO Sewa Singh, P.S. Majra, District Sirmour.
______________________________________________________________________ Chander Bhusan Barowalia, Judge. (oral).
The present bail application has been moved by the petitioner under Section 438 of the Code of Criminal Procedure for releasing him on bail, in the event of their arrest, in case FIR No. 445 of 2017, dated 10.10.2017, under Section 376 IPC and Section 4 of POCSO Act, registered at Police Station Paonta Sahib, District Sirmour, H.P.
2. As per the learned counsel for the petitioner, the petitioner is innocent and has been falsely implicated in the present case. He is resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, thus he may be released on bail.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 20/12/2017 23:10:28 :::HCHP 23. Police report stands filed. As per the prosecution story, on 10.10.2017 the prosecutrix moved a complaint to the police alleging that she is 20 years of age and was in love with the petitioner for the last three years. As per the prosecutrix, the petitioner on the pretext of .
marrying her used to make physical relations with her. The petitioner was drafted in the Army and he used to call the prosecutrix continuously. The petitioner many times on the pretext of marrying the prosecutrix established physical relations with her. Thereafter the petitioner left the prosecutrix. The petitioner came on leave and on 06.10.2017 he took the prosecutrix to his home and forcible committed sexual intercourse with her. On the basis of the complaint, so filed by the prosecutrix, police machinery was set into motion and investigation ensued. The spot map was prepared and the record qua the date of birth of the prosecutrix was obtained from the concerned Panchayat.
The age of the prosecutrix at the time of the offence was found seventeen years and five months so Section 4 of POCSO Act was added.
The statement of the prosecutrix was recorded under Section 164 Cr.P.C. and her mobile phone was taken into possession. On 16.12.2017 the petitioner was medically examined and preserved samples were sent for forensic analysis at SFSL, Junga. As per the prosecution, the petitioner is yet to be interrogated. Lastly, the prosecution has prayed that the bail application of the petitioner may be rejected.
::: Downloaded on - 20/12/2017 23:10:28 :::HCHP 34. I have heard the learned Counsel for the petitioner, Law Officer for the State and gone through the record, including the police report, carefully.
5. The learned Counsel for the petitioner has argued that the .
petitioner is joining and co-operating in the investigation and his custodial interrogation is not at all required. He has further argued that the petitioner is resident of the place, neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so he may be released on bail. Conversely, the Law Officer has argued that in case the petitioner is released on bail, he may tamper with the prosecution evidence and may also flee from justice. He has further argued that the petitioner has committed a serious offence, so his bail application be dismissed.
6. At this moment, taking into consideration the fact that the petitioner is resident of the place, neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, he is joining and co-operating in the investigation and also the age of the petitioner, allegations imputed in the complaint, so filed by the prosecutrix, and also other ancillary circumstances, which have come on record, the present is a fit case where the judicial discretion to admit the petitioner on bail, in the event of his arrest, is required to be exercised in his favour. Under these circumstances, it is ordered that the petitioner be released on bail, in the event of his arrest, in case FIR ::: Downloaded on - 20/12/2017 23:10:28 :::HCHP 4 No. 445 of 2017, dated 10.10.2017, under Sections 376 IPC and Section 4 of POCSO Act, registered at Police Station Paonta Sahib, District Sirmour, H.P., on his furnishing personal bond to the tune of `20,000/- (rupees twenty thousand only) with one surety in the like .
amount to the satisfaction of the Investigating Officer. The bail is granted subject to the following conditions:
(i) That the petitioner will join investigation of the case as and when called for by the Investigating Officer in accordance with law.
(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 facts of the case so as to dissuade him/her from disclosing such facts to the Investigating Officer or Court.
7. In view of the above, the petition is disposed of.
Copy dasti.
(Chander Bhusan Barowalia) Judge 19th December, 2017 (virender) ::: Downloaded on - 20/12/2017 23:10:28 :::HCHP