Himachal Pradesh High Court
Subhash Kumar vs State Of H.P on 15 September, 2015
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 1333 of 2015.
Date of decision: 15.09.2015
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Subhash Kumar Petitioner.
Versus
State of H.P. Respondent.
of
Coram
The Hon'ble Mr.Justice Sureshwar Thakur, J.
rt
Whether approved for reporting?1.
For the petitioner: Mr. N.K.Thakur, Sr. Advocate with Mr. Rahul
Verma, Advocate.
For the respondent: Mr. Vivek Singh Attri, Dy. A.G.
Sureshwar Thakur, J. (oral)
The instant application has been filed by the bail applicant under Section 438 Cr.P.C., for the grant of anticipatory bail to him as he apprehends his arrest for his having allegedly committed offences punishable under Sections 376, 354, 504 and 506 IPC in F.I.R. No. 228 of 2015 of 5-9-2015 registered at Police Station Sarkaghat, District Mandi, H.P.
2. The investigating officer ASI Rajesh Kumar, P.S. Sarkaghat, is present in Court and has filed a detailed status 1 Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 18:55:44 :::HCHP 2report. A perusal of the status report submitted by him before this Court unravels the fact that at the time of the alleged occurrence which took place on 4.1.2014 both the bail .
applicant and the prosecutrix were major. The occurrence of 4.1.2014 has been reported to the police station concerned on 5.9.2015. The delay in the reporting of the incident is immense and gross. No sound and tenable explanation has of been displayed by the prosecutrix for the belated lodging of the F.I.R. Consequently, with gross delay having occurred at rt the instance of the prosecutrix in reporting the incident, no inference than of the prosecutrix having concocted besides invented the attribution of an inculpatory role to the bail applicant, is ensuable. Besides even if any sexual intercourse occurred inter se the bail applicant and the prosecutrix the fact it has come to be belatedly reported also connotes the fact that it is a sequel of consent meted out by the prosecutrix to the accused while hers being aged 23 years at the time of the alleged occurrence hence capacitated to accord consent to the accused to his sexually accessing her. Hence, it would not be proper to order for the custodial interrogation of the bail applicant. Moreso, when at this stage no material has been placed on record by the prosecution disclosing that in case the facility of bail is accorded to the bail applicant, there ::: Downloaded on - 15/04/2017 18:55:44 :::HCHP 3 is every likelihood of his fleeing from justice or tampering with prosecution evidence. Accordingly, order of 8.9.2015 is made absolute subject to fulfilling of the following conditions:
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(i) That the bail applicant shall join the investigation, as and when required by the investigating agency;
(ii) That he shall not directly or indirectly advance any threat, inducement or promise to any person acquainted with the facts of the case and shall not of tamper with the prosecution evidence.
(iii) That he shall not leave India without the prior permission of the Court.
(iv) That he shall deposit his passport, if any, with the
rt Police Station, concerned;
(v) That in case of violation of any of these conditions,
the bail granted to the petitioner shall be forfeited and he shall be liable to be taken into custody; and
(vi) That he shall apply for bail afresh when the challan is filed before the trial Court.
3. With the aforesaid observations, the present petition stands disposed of. It is, however, made clear that the findings recorded hereinabove will have no bearing on the merits of the case.
4. Previously, this Court rendered a direction to all SHOs concerned that where there is belated lodging of reports qua commission of offence under Section 376 IPC, the SHO concerned shall not proceed to register an F.I.R unless the registration of an F.I.R. stands preceded by an inquiry portraying the existence of good, sound and tenable reasons ::: Downloaded on - 15/04/2017 18:55:44 :::HCHP 4 which prevented the prosecutrix to not promptly report the matter to the police station concerned. However, it appears that the directions of the Court have not been complied with.
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In future all the SHOs within Himachal Pradesh shall bear in mind that before they proceed to register any F.I.R. qua offences under Section 354 and 376 IPC they shall not proceed to do so unless a preliminary inquiry unravels the of factum that good and sufficient cause prevented the prosecutrix to not promptly report the incident to the Police rt Station concerned. The learned Deputy Advocate General is directed to circulate a copy of this order to the SHOs of all the Police Stations concerned in the State of H.P. and ensure compliance in future.
Dasti copy.
15th September, 2015. (Sureshwar Thakur) ™ Judge.
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