Himachal Pradesh High Court
Pankaj vs State Of Himachal Pradesh on 21 November, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.2728 of 2023
Reserved on : 03rd November, 2023
Decided on : 21st November, 2023
Pankaj ...Applicant
Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the petitioner : Mr. Harsh Rohal, Advocate vice Mr. Manoj Pathak, Advocate.
For the respondent : Mr. Tejasvi Sharma, Additional Advocate General assisted by ASI Pyare Lal, Police Station, Hatli, District Mandi, H.P. Virender Singh, Judge ApplicantPankaj, has filed the present application under Section 439 of the Code of Criminal Procedure (hereinafter referred to as the 'Cr.PC'), in case FIR No.103 of 2023, dated 23.08.2023, registered under Sections 376(2)N & 506 of the Indian Penal Code (hereinafter referred to as the 'IPC') and Section 4 of the Protection of Children from Sexual Offences Act (hereinafter referred to as the 'POCSO Act), with Police Station Hatli, District Mandi, H.P. 1 Whether Reporters of local papers may be allowed to see the judgment? Yes. 2
2. According to the applicant, he is innocent person and has falsely been implicated, in the present case.
3. As per the applicant, investigation, in the present case, is complete and no useful purpose would be served, by keeping him, in the judicial custody, that too, for indefinite period.
4. Applicant has also tried his luck before the learned Special Judge Fast Track Court (POCSO) Mandi, District Mandi, H.P., by moving Bail Application No.290 of 2023. However, the said bail application has been dismissed, vide order, dated 04th October, 2023.
5. On the basis of the above facts, learned counsel appearing for the applicant, has given certain undertakings, on behalf of the applicant, for which, the applicant is ready to abide by, in case, ordered to be released, on bail, during the pendency of the trial.
6. On the basis of the above facts, a prayer has been made to allow the application.
7. When put to notice, the police has filed the status report disclosing therein, that on 23.8.2023, the 3 child victim appeared before the police, along with her parents, and moved a complaint, mentioning therein that she has been raped on the pretext of marriage. 7.1. According to the complainant, she is resident of the address, as mentioned, in the complaint and studying in 12th class, in a Government School. The child victim was having talking terms with the applicant. The talking terms developed into friendship and in the month of February, 2023, the applicant took the child victim to Ghumarwin. Thereafter, the applicant booked a room in a Hotel and raped her. Despite resistance shown by the child victim, she was raped on the pretext of marriage. 7.2. Thereafter, at one occasion, the child victim had gone to Ghumarwin, on the pretext of School tour and stayed in a hotel with the applicant, for three days, where she was again raped by the applicant. 7.3. Thereafter, in the month of July, 2023, applicant took her to Sundernagar, where they also stayed in a hotel and was raped by the applicant on the pretext of marriage. She has given other incidents, as to how, she was raped by the applicant.
47.4. Lastly, the child victim has stated that she is in love with the applicant and wants to marry him, but, the applicant has refused to marry her.
8. On the basis of the above facts, the FIR, in question, has been registered and the Police machinery swung into motion.
9. The child victim was medicolegally examined at Civil Hospital, Sarkaghat. The physical evidence, so collected, by the doctors, was preserved. The applicant was arrested and he was also medicolegally examined.
10. During investigation, the documents, pertaining to the date of birth of the child victim was obtained, according to which, her date of birth was 8.10.2007.
11. After completion of the investigation, the police has submitted the final report under Section 173(2) Cr.PC, before the learned Special Judge, Fast Track Court (POCSO), Mandi and the case is now fixed for 03.11.2023.
12. On the basis of the above facts, a prayer has been made to dismiss the application.
13. According to the documents, placed on record, the child victim was produced before the learned Special 5 Judge, Fast Track Court (POCSO), Mandi on 18.9.2023, where she has exonerated the applicant from all the allegations, by stating that the accused has not committed any wrong act with her. The father of the child victim has also made no objection, before the trial Court, if the application for bail is allowed.
14. Learned counsel for the applicant could not satisfy the judicial conscience of this Court, as to how these documents are relevant for the decision of the present case.
15. Even otherwise, the procedure adopted by the learned Special Judge, Fast Track Court (POCSO), Mandi, is unknown to the law, as, the procedure adopted, in the present case, does not fall within the purview of provisions added with Section 439(1) Cr.PC., and provisions of 439(1) (A), are reproduced as under:
439. Special Power of High Court of Court of Session regarding bail (1) A High Court or Court of Session may direct --
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in SubSection (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that SubSection;
6
b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified;
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under subsection (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code, give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application. 1A. The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under subsection (3) of section 376 or section 376AB or section 376DA or section 376 DB of the Indian Penal Code.
16. However, considering the fact that the investigation, in the present case, is complete and no useful purpose would be served, by keeping the applicant, 7 in judicial custody, that too, for indefinite period, as the chances of conclusion of trial against the applicant, in near future, are not so bright, because there are total 36 witnesses, cited by the prosecution.
17. The bail application cannot be rejected, as a matter of punishment, as, pretrial punishment is prohibited under the law and punishment can only be imposed, after the full fledged trial, by competent Court of law.
18. The applicant is permanent resident of District Mandi, as such, it cannot be apprehended that, in case, she is ordered to be released on bail, he may not be available for the trial.
19. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed. The applicant is ordered to be released on bail, in case FIR No.103 of 2023, dated 23.08.2023, under Sections 376(2)N, 506 of the IPC and Section 4 of POCSO Act, registered with Police Station, Hatli, District Mandi, H.P., on his furnishing personal bond in the sum of Rs.50,000/, with one surety in the like 8 amount, to the satisfaction of learned Special Judge Fast Track Court (POCSO), Mandi, District Mandi, H.P.
20. This order of release, however, shall be subject to the 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 them from disclosing such facts to the Court or the Police Office; and
d) He shall not leave the territory of India without the prior permission of the Court."
21. Any of the observations made herein above shall not be taken as an expression of opinion on the merits of the case as these observations are confined only to the disposal of the present bail application. 9
22. It is made clear that the respondent State is at liberty to move an appropriate application, in case, any of the bail conditions is found to be violated by the bail applicant/petitioner.
23. The Registry is directed to forward a soft copy of the bail order to the Superintendent Jail, SubJail, Mandi through email, with a direction to enter the date of grant of bail in the eprison software.
24. In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent Jail, SubJail, Mandi, is directed to inform this fact to the Secretary, DLSA, Mandi. The Superintendent Jail, SubJail, Mandi, is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court.
( Virender Singh ) Judge November 21, 2023(ps) Digitally signed by KARAN SINGH KANWAR KARAN DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone= 84c56a3b8f7868712974087154d73f59e80c39f7c3c3b SINGH 2c96099a032dbd3936c, PostalCode=171001, S= Himachal Pradesh, SERIALNUMBER= 9b72faf266a1e783d9d187288c6909df3236ec1940746 5bd50727f28fe45a07c, CN=KARAN SINGH KANWAR Reason: I am approving this document KANWAR Location:
Date: 2023.11.21 14:47:05+05'30' Foxit PDF Reader Version: 2023.2.0