Himachal Pradesh High Court
Sonu Kumar @ Kushal vs State Of Himachal Pradesh on 3 April, 2019
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 376 of 2019 Decided on: 3rd April, 2019 Sonu Kumar @ Kushal ....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. Satyen Vaidya, Sr. Advocate, with Mr. Vivek Sharma, Advocate.
For the respondent/State: Mr. S.C. Sharma and Mr. Shiv Pal Manhans, Additional Advocates General with Mr. Raju Ram Rahi, Deputy Advocate General.
ASI Yoginder Singh, Police Station 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. 82 of 2018, dated 16.11.2018, under Section 363, 366A, 376, 506 read with Section 34 IPC and Sections 6 and 8 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 resident of the place and neither in a position to tamper with the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 04/04/2019 21:59:10 :::HCHP 2prosecution evidence nor in a position to flee from justice. No fruitful purpose will be served by keeping him behind the bars for an unlimited period, so he be released on bail.
.
3. Police report stands filed. As per the prosecution story, on 16.11.2018 mother of the prosecutrix (name withheld) made a written complaint to the police, wherein she stated that on 03.10.2018 her daughter (prosecutrix) was found missing and despite best efforts she could not be traced. The prosecutrix telephoned her mother and told that she is at Amritsar and she will return after some days. On 15.11.2018, the prosecutrix made a telephonic call from cell number 7018909852 and she told that she solemnized marriage in Tauni Devi temple. The prosecutrix further divulged to her mother that one Kaushlya Devi was instrumental before her elopement and she used to threaten her. The prosecutrix made a telephonic call to her mother from cell number 8278840384 and some unknown person demanded money. On the basis of the complaint, so made by the complainant, police registered a case and the investigation ensued. Police, after obtaining the CDR, tower location and billing address of cell number 8278840384, found that the cell number is of the present petitioner.
The prosecutrix was recovered from the house of the present petitioner.
Police prepared the spot map and recorded the statements of the witnesses. Police made relevant recoveries and also conducted photography and videography of the spot. The statement of the ::: Downloaded on - 04/04/2019 21:59:10 :::HCHP 3 prosecutrix was recorded. On 22.11.2018 the petitioner was arrested by the police. Both the petitioner and the prosecutrix were medically examined. Police procured the record qua date of birth of the .
prosecutrix and her statement under Section 164 Cr.P.C. was recorded.
As per the prosecution, on 18.01.2019 challan stands presented in the Court. Lastly, it is prayed that the bail application of the petitioner be dismissed as the petitioner was involved in a serious offence, as the petitioner, if released on bail, may tamper with the prosecution evidence and may also flee from justice.
4. I have heard the learned Senior Counsel for the petitioner, learned Additional Advocate General for the State and gone through the record, including the police report, carefully.
5. The learned Senior Counsel for the petitioner has argued that the petitioner has been falsely implicated in the present case. It has been further argued that that no fruitful purpose will be served by keeping the petitioner behind the bars for an unlimited period. The petitioner is resident of the place and neither in a position to tamper with the prosecution evidence, nor in a position to flee from justice, so he may be enlarged on bail. Conversely, the learned Additional Advocate General has argued that the petitioner was found involved in a serious offence and in case he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice. It has ::: Downloaded on - 04/04/2019 21:59:10 :::HCHP 4 been argued that the bail application of the petitioner may be dismissed.
6. In rebuttal the learned Senior Counsel for the petitioner .
has 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, so he may be enlarged on bail.
7. At this stage, after taking into consideration the fact that as per the prosecution the prosecutrix and the petitioner have solemnized marriage in Tauni Devi temple, which fact is also apparent from the photographs of marriage shown to this Court by the learned Senior Counsel for the petitioner, considering the age of the petitioner, which, as per the learned Senior Counsel for the petitioner, is stated to be 23 years and also considering the overall aspects of the case, which have come on record, including the fact that the petitioner is resident of the place, neither a position to tamper with the prosecution evidence nor in a position to flee from justice, this Court finds that no fruitful purpose will be served by keeping the petitioner behind the bars for an unlimited period and the ends of justice will only be met in case he is enlarged on bail. Thus, 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, in case FIR No. 82 ::: Downloaded on - 04/04/2019 21:59:10 :::HCHP 5 of 2018, dated 16.11.2018, under Section 363, 366A, 376, 506 read with Section 34 IPC and Sections 6 and 8 of POCSO Act, registered at Police Station Nirmand, District Kullu, H.P., 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/Police/authorities 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 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)
3rd April, 2019 Judge
(virender)
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