___________________________________________________________________ vs State Of Himachal Pradesh on 28 February, 2020

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Himachal Pradesh High Court

___________________________________________________________________ vs State Of Himachal Pradesh on 28 February, 2020

Bench: Anoop Chitkara

1 IN THE HIGH COURT OF HIMACHAL PRADESH, .

SHIMLA Cr.MP(M) No.229/2020 Reserved on : 20.2.2020 Date of Decision:28th February, 2020 ___________________________________________________________________ Manish Kumar ... Petitioner.

Versus State of Himachal Pradesh Coram:

r to The Hon'ble Mr. Justice Anoop Chitkara, Judge.

...Respondent Whether approved for reporting?1 No For the Petitioner : Mr. T.S. Chauhan, Advocate. For the Respondent : Ms. Ritta Goswami, Mr. Vinod Thakur and Mr. Nand Lal Thakur, Addl. A.Gs. with Mr. Yudhbir Singh Thakur, Deputy Advocate General for the State.

Anoop Chitkara, Judge The petitioner, who is under arrest, on being arraigned as an accused in FIR number 168/2019 dated 11.11.2019, registered under Sections 363, 366, 376 of Indian the Penal Code, 1860 and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'the POCSO Act'), in the file of Police Station, Dharamshala, District 1 Whether reporters of Local Papers may be allowed to see the judgment?

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Kangra, H.P., disclosing non-bailable offences, has come up before this Court .

under Section 439 of the Code of Criminal Procedure, seeking regular bail.

2. Status report stands filed. I have seen the status report(s) as well as the Police report under Section 173(2) CrPC, to the extent it was necessary for deciding the present petition, and heard learned Counsel for the parties.

3. Prior to the present bail petition, the petitioner had filed a petition under Section 439 CrPC, before Special Judge, Kangra at Dharamshala, District Kangra, HP. However, vide order dated 23.1.2020, the Court dismissed the petition, on the grounds that the prosecutrix had specifically stated in her statement subsequently that she has been forcibly raped by the accused many a times. Therefore, in such a case, the intimidation or allurement of the victim could not be ruled out.

FACTS

4. The gist of the First Information Report and the investigation is that the mother of the victim complained to SHO, Police Station, Dharamshala that her daughter, who is 17 years and 9 months of age, i.e. quarter less than 18 years, is missing and so is a boy from neighbourhood, the bail petitioner. The age of the bail petitioner is revealed as 24 years.

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She further alleged that now for the last few days, both of them are staying .

in a rented accommodation at a place known as Sidhbari. Upon receipt of this information, the Police registered the aforesaid FIR under Sections 363, 366 of the Indian Penal Code. On investigation, the Police was able to recover the victim who was staying with the petitioner in the said rented accommodation. The victim refused to undergo medical examination. After the arrest, the Police got medical examination of the accused conducted.

After that, the Police sent the victim through her mother and got MLC conducted, wherein the doctor opined that her hymen is not intact. The matriculation certificate revealed the date of birth of the prosecutrix as 14.2.2002. After that, the Police recorded the statement of the victim under Section 164 Cr.PC. The case of the prosecution is that the accused established sexual relations under the promise of marriage and at that time, the victim was a minor girl. Subsequently, the police party also complied with the procedural requirements under the CrPC and arrested the petitioner.

ANALYSIS AND REASONING:

5. Pre-trial incarceration needs to be justified depending upon the heinous nature of the offence, terms of the sentence prescribed in the ::: Downloaded on - 28/02/2020 20:25:46 :::HCHP 4 .

Statute for such a crime, accused fleeing from justice, hampering the investigation, and doing away with witnesses. The Court is under the Constitutional obligation to safeguard the interests of the victim, the accused, the society, and the State. The material so far collected, to convict the accused with the alleged occurrence if it actually happens, still is not enough to deny him bail.

6. to Given the above reasoning, in my considered opinion, the judicial custody of the petitioner/accused is not going to serve any purpose whatsoever, and I am inclined to grant bail on the following grounds, but subject to stringent conditions:

a) The report under Section 173(2) CrPC stands filed.

b) The petitioner/accused is in judicial custody since 12.11.2019.

c) The petitioner is a permanent resident of the address mentioned in the memo of parties, as such presence can always be secured.

d) The petitioner has no criminal history.

7. Consequently, the present petition is allowed. The petitioner/accused shall be released on bail in the present case, in ::: Downloaded on - 28/02/2020 20:25:46 :::HCHP 5 connection with the FIR mentioned above, on his furnishing personal bond in .

the sum of INR 10,000/- (Rupees ten thousand) with two sureties in the like amount, to the satisfaction of the learned Trial Court/Chief Judicial Magistrate/Addnl. Chief Judicial Magistrate or any Judicial Magistrate of District Kangra, HP.

8. The Court executing the personal and surety bonds shall ascertain the identity of the bail-petitioner, his family members, and of sureties, through AADHAR Card, Pan Card, Ration Card, etc. The petitioner shall mention phone numbers and other details, on the reverse page of the bonds.

9. The Counsel for the accused and the attesting official shall explain all conditions of this bail to the petitioner.

10. This Court is granting the bail, subject to the conditions mentioned herein. The petitioner/accused undertakes to comply with all directions given in this order, and the furnishing of bail bonds by the petitioner/accused is acceptance of all such conditions:

(i) The petitioner shall appear before the Court which issues the summons or warrants, and shall furnish fresh bail bonds to the satisfaction of such Court, if such Court directs to do so.

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(ii) The petitioner undertakes to attend the trial.

.

(iii) The petitioner shall join the investigation as and when called by the Investigating Officer. However, whenever the investigation takes place within the boundaries of the Police Station or the Police Post, then the accused shall not be called before 9 AM and shall be let off before 5 PM.

(iv) The petitioner shall co-operate in the investigation.


    (v)

    (vi)                            to

The petitioner shall not hamper the investigation.

The petitioner undertakes not to threaten or browbeat or use any pressure tactics on the victims, complainant, and witnesses.

(vii) The petitioner shall neither influence nor try to control the investigating officer, in any manner whatsoever.

(viii) The petitioner undertakes not to make any inducement threat or promise, directly or indirectly, to the investigating officer or any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or any Police Officer or tamper with the evidence.

(ix) In case the petitioner commits any offence prescribing the sentence of imprisonment of more than seven years, within thirty days of knowledge of such FIR, the petitioner shall intimate SHO of the present police station, with all the details of the present FIR as well as the new FIR. In such a situation, it ::: Downloaded on - 28/02/2020 20:25:46 :::HCHP 7 shall be open for the State to apply to this Court for cancellation of this bail, if it deems fit and proper.

(x) Within 30 days from today, the petitioner shall sell, or surrender, all firearms along with ammunition, and arms licenses, if any, to the authority which had given such permission.

(xi) The petitioner shall not enter within a radius of five kilometers of the residence of the victim, measuring from the shortest route, until the recording of the statements of all witnesses, except Police Officials, during trial. However irrespective of these conditions, the accused is permitted to visit his Lawyers, Courts and Hospitals. The petitioner shall inform the SHO of above-mentioned Police Station about the address where he would be residing. After the recording of the statements of the aforesaid witnesses, this condition shall automatically come to an end. In case of emergency, whenever, the accused is required to visit his home, then he shall take permission of the SHO/I.O. or any superior Officer of the concerned Police Station or of Pradhan/Up-Pradhan//Member of Panchayat, in whose jurisdiction, the residence of the victim, falls. But in no situation, he shall stay at this place for more than a week at a stretch. This condition is being laid so that no trauma is caused to the victim, at least till the time of recording of the statement of the victim in Court. Such a condition is neither ::: Downloaded on - 28/02/2020 20:25:46 :::HCHP 8 arbitrary nor unreasonable and the only purpose is that the victim is unable to come face to face with the accused and also .

has been imposed with a view that the accused is unable to influence the victim. In case the petitioner needs modification of this condition, then he may apply to this Court, supported with written permission from the victim, obtained through Pradhan, Up Pradhan, or Ward Member of the Panchayat, where the victim resides.


        (xii)             Apart from above, in case the petitioner does not
    turn up                             before Trial Court, then the trial

    Court may issue Non-Bailable                          warrants and send the

    petitioner to the Judicial Custody for the                    period          for

which the presence of the petitioner cannot be dispensed with. If the petitioner violates any other condition(s) as stipulated in this bail order, then the Trial Court may direct the Public Prosecutor to file a cancellation application before it and it shall be lawful and permissible for the Trial Court to cancel the bail.

(xiii) In case the petitioner repeats the offence or com-

    mits any                            offence where the sentence is
    seven years or more, then                                     before granting
    bail, the Courts shall consider the fact that he                       was also

warned earlier about not repeating the offence and not committing it.

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11. In case the petitioner finds the bail condition(s) as violating .

fundamental or other right, or any human right, or faces any other difficulty due to any condition, then, the petitioner may file a reasoned application for modification of such term(s).

12. The present bail order is only for the FIR mentioned above. It shall not be construed to be a blanket order of bail in all other cases, if any, registered against the petitioner.

13. The SHO/Additional SHO of the concerned Police Station or the Investigating Officer to handover a copy of this order to the victim(s) and explain it to them.

14. Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.

Petition stands allowed in the terms mentioned above.

Copy dasti.

(Anoop Chitkara) Judge 28th February, 2020 (KS) ::: Downloaded on - 28/02/2020 20:25:46 :::HCHP

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Himachal Pradesh High Court