Himachal Pradesh High Court
Abhinav Thakur vs State Of Himachal Pradesh on 23 October, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 1289 of 2017
Decided on October 23, 2017
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Abhinav Thakur ... Petitioner
Versus
State of Himachal Pradesh Respondent
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Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the petitioner : Mr. Jagdish Thakur, Advocate.
For the respondent : Mr. M.L. Chauhan, Additional
Advocate General.
ASI Pawan Kumar, Police Station,
Sadar, Hamirpur, District
r Hamirpur, HP.
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Sandeep Sharma, Judge (oral):
By way of instant application filed under Section 438 CrPC, prayer has been made for grant of pre-arrest bail in FIR No. 143 of 2017 dated 3.10.2017 under Section 376 IPC registered at Police Station Sadar, Hamirpur District Hamirpur, Himachal Pradesh.
2. Sequel to order dated 13.10.2017, ASI Pawan Kumar has come present with the record. Mr. M.L. Chauhan, learned Additional Advocate General has also placed on record status report, prepared on the basis of investigation carried out by the investigating agency till date.
3. Perusal of record/status report suggests that aforesaid FIR came to be registered against bail petitioner at the behest of 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 14/11/2017 18:09:02 :::HCHP 2complainant, who alleged that she came into contact with the bail petitioner on 11/12.6.2017 and since then, she had been meeting him frequently. It also emerges from the status report that the .
above named complainant developed physical relations with the bail petitioner and had been continuously meeting him till filing of the aforesaid FIR against the bail petitioner.
4. Mr. Jagdish Thakur, learned counsel representing the bail petitioner, while referring to the status report, vehemently argued that, by no stretch of imagination, it can be said that bail petitioner sexually assaulted the complainant, rather, perusal of record/status report suggests that the complainant herself developed physical relations with the bail petitioner and as such, no case, if any, could be registered against the bail petitioner under Section 376 IPC, more so when complainant is a mature woman aged 27 years of age, which is an admitted fact.
5. Mr. M.L. Chauhan, learned Additional Advocate General, while opposing aforesaid prayer for grant of bail having been made by the learned counsel representing the petitioner, fairly admitted, on the instructions of the investigating officer, who is present in the court, that sequel to order dated 13.10.2017, bail petitioner has already joined the investigation and at this stage, nothing is required to be recovered from him. This Court, after having carefully perused record/status report, sees considerable force in the arguments of Mr. Jagdish Thakur, that the complainant after having known the bail petitioner herself developed relations with ::: Downloaded on - 14/11/2017 18:09:02 :::HCHP 3 the bail petitioner and there is nothing available on record, from where it can be inferred that the bail petitioner at any point of time, forcibly sexually assaulted the complainant. Though, .
aforesaid aspect of the matter is to be considered and decided by the trial Court on the basis of investigation, if any, adduced on record by prosecution, but, at this stage, this Court, after having carefully gone through the record made available to it, sees no reason for the custodial interrogation of the bail petitioner, as such, petitioner deserves to be released on bail.
6. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. Petitioner is local resident of address given in memo of parties and shall remain available to face the trial and to undergo imprisonment, if any, which may be imposed on conclusion of the trial.
7. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down the following principles to be kept in mind, while deciding petition for bail:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
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(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
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8. In view of above, interim order dated 13.10.2017, is made absolute, with 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 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 him/her 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.
9. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.
10. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone.
The petition stands accordingly disposed of.
Copy dasti.
(Sandeep Sharma) Judge October 23, 2017 (vikrant) ::: Downloaded on - 14/11/2017 18:09:02 :::HCHP