Himachal Pradesh High Court
______________________________________________ vs State Of H.P. .....Non-Petitioner on 22 August, 2016
Author: P.S. Rana
Bench: P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
Cr.MP(M) No. 984 of 2016
Order Reserved on 17.08.2016
.
Date of Order 22.08.2016
______________________________________________
Daulat Ram s/o Sh. Hina Singh and Another
......Petitioners
Versus
State of H.P. .....Non-petitioner
of
______________________________________________
Coram
The Hon'ble Mr. Justice P.S. Rana, J.
Whether approved for reporting?1 Yes.
rt ______________________________________________ For petitioners : Mr. Virender Sharma, Advocate For non-petitioner : Mr. M. L. Chauhan, Addl. A. G. P.S. Rana, Judge.
Order:
Present bail application is filed under Section 438 Code of Criminal Procedure 1973 for grant of anticipatory bail relating to FIR No.103/2016 registered under Section 363 IPC in Police Station Karsog Distt. Mandi (H. P.).
Brief facts of the case:
2. It is pleaded that marriage was solemnized between Sh.
Tota Ram who is son of Sh. Daulat Ram and prosecutrix on 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:03:35 :::HCHP 203.05.2016. It is further pleaded that marriage is inter caste marriage and family members of prosecutrix filed criminal complaint in the police station. It is further pleaded that .
petitioners only witnessed the marriage ceremony. It is further pleaded that petitioners would appear before the investigating agency whenever and wherever directed. It is further pleaded that petitioners would not intimidate any of the prosecution witnesses in any manner. It is further pleaded that petitioners would abide of by all terms and conditions imposed by the Court. Prayer for grant of anticipatory bail sought.
rt
3. Per contra police report filed. As per police report Sh. Paras Ram filed criminal complaint under Section 363 IPC. There is recital in police report that minor prosecutrix was undergoing training of stitching in Kanhaiya Garments Karsog. There is further recital in police report that younger daughter and son of complainant are studying in Govt. Senior Secondary School Karsog. There is further recital in police report that Sh. Paras Ram took room of Sh. Virender Sharma on rent basis. There is further recital in police report that on 02.05.2016 at 11.00 a.m. minor prosecutrix went to Kanhaiya Garments Karsog and did not return back in her residential house in the evening. There is further recital in police report that prosecutrix was born on 13.01.1999. There is further recital in police report that after ::: Downloaded on - 15/04/2017 21:03:35 :::HCHP 3 registration of case investigation started and certificate of age of minor prosecutrix obtained from Secretary Gram Panchayat Kuthed. There is further recital in police report that at the time of .
incident age of minor prosecutrix was 17 years 6 months and 8 days. There is further recital in police report that statements of witnesses under Section 161 Cr.PC recorded. There is further recital in police report that Sh. Tota Ram co-accused has kidnapped minor prosecutrix from lawful guardianship without of consent of guardian. Prayer for rejection of anticipatory bail sought. rt
4. Court heard learned Advocate appearing on behalf of petitioners and learned Additional Advocate General appearing on behalf of non-petitioner and Court also perused the entire record carefully.
5. Following points arise for determination:
(1) Whether anticipatory bail application filed by petitioners relating to criminal offence of kidnapping of minor prosecutrix is liable to be accepted as mentioned in memorandum of grounds of bail application at the initial stage of investigation?
(2) Final Order.::: Downloaded on - 15/04/2017 21:03:35 :::HCHP 4
Findings upon Point No.1 with reasons.
6. Submission of learned Advocate appearing on behalf of petitioners that petitioners are only witnesses of inter-caste .
marriage solemnized between prosecutrix and co-accused Tota Ram and on this ground bail application filed by petitioners be allowed is rejected being devoid of any force for reasons hereinafter mentioned. Essential ingredients of the offence of kidnapping a minor from lawful guardianship are (1) That age of of minor should be less than 16 years if minor is male and age of minor should be less than 18 years if minor is female. (2) That rt minor was taken or enticed away. (3) That minor was in custody of lawful guardian. (4) That guardian did not consent for removal of minor prosecutrix. In the present case prima facie age of minor prosecutrix is 17 years 6 months and 8 days. Minor has not attained the age of majority in the present case as per certificate issued by Secretary Gram Panchayat Kuthed.
7. At the time of granting bail following factors should be considered: (1) Nature and seriousness of offence. (2) Character of the evidence. (3) Circumstances peculiar to the accused. (4) Reasonable possibility of presence of accused in trial or investigation. (5) Reasonable apprehension of witnesses being tampered with . (6) Larger interest of the public or State. See AIR 1978 SC 179 titled Gurcharan Singh and others Vs. State ::: Downloaded on - 15/04/2017 21:03:35 :::HCHP 5 (Delhi Administration. Also see AIR 1962 SC 253 titled The State Vs. Captain Jagjit Singh. There is apprehension in the mind of the Court that if petitioners are released on anticipatory .
bail at this stage then petitioners would tamper with the prosecution witnesses.
8. Submission of learned Advocate appearing on behalf of petitioners that prosecutrix has given the affidavit that she has attained the age of majority and on this ground anticipatory bail of application filed by petitioners be allowed is rejected being devoid of any force for reasons hereinafter mentioned. Affidavit given by rt prosecutrix is attested by notary and identified by co-accused Daulat Ram and Nand Lal. Affidavit is still subject to prove in accordance with law before learned Trial Court. As per documentary certificate given by Secretary Gram Panchayat age of minor prosecutrix is 17 years 6 months and 8 days. In view of certificate issued by Secretary Gram Panchayat Kuthed it is not expedient in the ends of justice to give judicial findings at the initial stage of investigation that prosecutrix has attained the age of majority. Dispute relating to age of prosecutrix is complicated question of facts. It is well settled law that complicated question of facts should not be decided in bail proceedings filed under Section 438 Code of Criminal Procedure 1973 and same should be ::: Downloaded on - 15/04/2017 21:03:35 :::HCHP 6 decided by learned Trial Court after giving due opportunities to both parties to prove their case.
9. Submission of learned Advocate appearing on behalf of .
petitioners that prosecutrix has joined the company of co-accused Tota Ram with her own consent and on this ground anticipatory bail application filed by petitioners be allowed is rejected being devoid of any force for reasons hereinafter mentioned. Consent of minor relating to criminal offence under Section 363 IPC is no of defence to accused. It is well settled law that consent of minor is no consent in eyes of law and protective custody of father would rt not come to an end even if minor girl herself abandons the custody of her parents. It is well settled law that Section 363 IPC is intended primarily to protect the right of parents and infatuation of minor towards the accused would not help the accused to escape the liability under section 363 IPC. See AIR 1959 Kerala 197 (DB) title Chathan Kunjukunju Vs. State. See AIR 1953 J&K 21 (DB) title Illamdin Vs. State. It is well settled law that birth certificate issued by Secretary Gram Panchayat Kuthed relating to minor prosecutrix is relevant fact under Section 35 of Indian Evidence Act 1872 because certificate has been given by public official in discharge of official duties and birth entry of prosecutrix in public record was recorded ante litem motam. See AIR 2011 SC 1691 title Murugan Vs. State of Tamil Nadu.
::: Downloaded on - 15/04/2017 21:03:35 :::HCHP 7There are direct allegations against petitioners that petitioners have participated in the marriage ceremony of minor prosecutrix and there are also direct allegations against petitioners that .
petitioners became marginal witnesses of affidavit given by minor prosecutrix attested by notary. Investigation is at initial stage of the case. Court is of the opinion that keeping in view the gravity of offence relating to kidnapping of minor from lawful guardianship it is not expedient in the ends of justice to grant of anticipatory bail to petitioners. Court is of the opinion that custodial investigation of petitioners is essential for proper rt investigation of case. It is not expedient in the ends of justice to give judicial findings in anticipatory bail application relating to absence of mens rea or actus reus. Point No.1 is answered in negative.
Point No.2 (Final order).
10. In view of my findings on point No.1 above anticipatory bail application filed by petitioners under Section 438 Code of Criminal Procedure 1973 is dismissed. Observations will not effect merits of case in any manner and will be strictly confined for disposal of anticipatory bail application. Cr.MP(M) No.984/2016 is disposed of. Pending application if any also disposed of.
August 22, 2016 (P. S. Rana),
(rana) Judge.
::: Downloaded on - 15/04/2017 21:03:35 :::HCHP