Himachal Pradesh High Court
Riyazul Hassan vs State Of Himachal Pradesh on 24 April, 2019
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 523 of 2019 Decided on: 24th April, 2019 Riyazul Hassan ....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. M.A. Khan, Sr. Advocate, with Mr. Naresh K. Sharma and Ms. Hem Kanta Kaushal, Advocates.
For the respondent/State:
r to Mr. S.C. Sharma, Mr. Shiv Pal Manhans and Mr. P.K. Bhatti, Additional Advocates General with Mr. Raju Ram Rahi, Deputy Advocate General.
SI Suram Singh, SHO, Police Station Dharampur, District Mandi, 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. 83 of 2017, dated 22.08.2017, under Section 363, 366A, 342, 376, 120B IPC and Section 4 of POCSO Act363, 366A, 376, 506 read with Section 34 IPC, Sections 6 and 8 of POCSO Act and Section 3(i)(w) of SC & ST Act, Police Station Dharampur, District Mandi, 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 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 25/04/2019 21:58:54 :::HCHP 2resident of the place and neither in a position to tamper with the prosecution 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 22.08.2017 the prosecutrix (name withheld) made a written complaint to the police, wherein she stated that she studies in 10+1 and on 21.08.2017 when she was waiting for bus at Marola, a black car stopped near him and three inebriated boys alighted. The names of these boys, who alighted from the car, are Bhuri, Anku and Aarif.
Anku and Bhuri (petitioner herein) forcibly made the prosecutrix to sit in the vehicle and they drove the same towards Sarkaghat. She was taken to a room, where the petitioner forcibly committed rape on her.
The petitioner also took the prosecutrix to his home and on 22.08.2017 she came back to her home. She divulged the incident to her siblings and subsequently the matter was reported to the police. On the complaint, so made by the prosecutrix, police registered a case and the investigation ensued. Statement of the prosecutrix was recorded and she was medically examined. The petitioner and the co-accused were arrested. During the course of investigation the petitioner made a disclosure statement and got identified the room where he sexually molested the prosecutrix. Police made the relevant recoveries and the vehicle, having registration No. HP-86 1186, which was allegedly used ::: Downloaded on - 25/04/2019 21:58:54 :::HCHP 3 in the commission of the crime, was also seized. Scientific samples were collected and sent for chemical examination to RFSL, Mandi.
Statement of the prosecutrix was also recorded under Section 164 .
Cr.P.C. Police recorded the statements of the witnesses and procured the records qua the date of birth of the prosecutrix. The prosecutrix was found to be born on 21.09.2002. The petitioner and other co-
accused knew that the prosecutrix belongs to Scheduled Caste category so Section 3(1)(w) of the SC & ST Act was added. As per the RFSL report, there is evidence qua vaginal intercourse. DNA profiling report is awaited. Challan stands presented in the learned Trial Court and after receipt of DNA profiling report, supplementary challan will be presented in the learned Trial Court. Lastly, it is prayed that the bail application of the petitioner be dismissed as the petitioner was involved in a serious offence, and 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 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 ::: Downloaded on - 25/04/2019 21:58:54 :::HCHP 4 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 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, as he is resident of the place, so he may be enlarged on bail.
7. At this stage, after taking into consideration the fact that the petitioner is behind the bars for sufficiently long time and he cannot be kept behind the bars for an unlimited period, 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 and also considering the overall material, which emanates from the records, 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 ::: Downloaded on - 25/04/2019 21:58:54 :::HCHP 5 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. 83 of 2017, dated 22.08.2017, under Section 363, 366A, .
342, 376, 120B IPC and Section 4 of POCSO Act363, 366A, 376, 506 read with Section 34 IPC, Sections 6 and 8 of POCSO Act and Section 3(i)(w) of SC & ST Act, Police Station Dharampur, District Mandi, H.P., shall be released on bail forthwith in this case, subject to his furnishing personal bond in the sum of `50,000/- (rupees fifty 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)
24th April, 2019 Judge
(virender)
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