Himachal Pradesh High Court
Son Of Sh. Ram Krishan vs ) on 15 July, 2022
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 15th DAY OF JULY 2022
.
BEFORE
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CRIMINAL MISC. PETITION (MAIN) No. 1484 of 2022
Between:-
SH. TEK CHAND
r to
SON OF SH. RAM KRISHAN
AGED ABOUT 29 YEARS
R/O VILLAGE KUIRU SEHROL,
P.S. ARKI, TEHSIL ARKI, DISTT. SOLAN.
.....PETITIONER
(BY SH. VIPIN PANDIT, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
.....RESPONDENT
(BY SH. RAM LAL THAKUR, ASSISTANT
ADVOCATE GENERAL,
SI/SHO GOPAL SINGH,
POLICE STATION, ARKI, IN PERSON,
SH. ANIRUDH SHARMA, ADVOCATE,
FOR THE COMPLAINANT)
_______________________________________________________
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2
This petition coming on for orders this day, the
Court passed the following:
.
ORDER
This petition under Section 438 of Code of Criminal Procedure originates from FIR No. 45/22 registered on 8.6.2022, under Sections 376, 323, 504, 506, 34 of Indian Penal Code and Section 6 of POCSO Act, at Police Station, Arki, Distt. Solan.
2. I have heard learned counsel for the petitioner, learned counsel for the complainant, learned Assistant Advocate General for the respondent-State and have also considered the record produced by the investigating agency.
3. The prosecution case is that:-
3(i) The FIR was registered on the basis of a complaint dated 7.6.2022 lodged by the prosecutrix. The complainant stated therein that she was a student of 10+2 class in July 2021 when she created her Facebook ID. She accepted a friend request of the petitioner on her Facebook ID. Both started messaging each other. The petitioner expressed his desire to meet the prosecutrix. They met each other thereafter and also ::: Downloaded on - 16/07/2022 20:02:17 :::CIS 3 clicked their photographs. The petitioner again insisted on meeting the prosecutrix. The prosecutrix did not want to meet .
the petitioner but still complied with his dictate as the petitioner had otherwise warned her of uploading her photographs on Facebook. The petitioner also expressed his desire to marry the prosecutrix and projected that he was unmarried. The prosecutrix resisted his insistence on marriage and also conveyed that she was minor and will marry only in accordance with wishes of her parents. In view of the threats extended by the petitioner, she went to meet him at Sehrol. There, he gave her some liquid to drink that made her intoxicated. Petitioner established physical relations with her perforce while she was in state of intoxication. He had also promised to marry her. These facts were not disclosed by the prosecutrix to anyone due to threats extended by the petitioner. The petitioner repeatedly exploited the prosecutrix sexually under the threats that in case of her refusal to abide by his desires, he would upload her obscene videos. The prosecutrix further complained that on 1.6.2022, the petitioner asked her to meet him at Arki. She went there. She was made to sign 2-3 papers whereafter she was brought by the petitioner to his home. The petitioner ::: Downloaded on - 16/07/2022 20:02:17 :::CIS 4 disclosed there for the first time that he was already married and had three kids. A fight ensued thereafter between the .
petitioner and the prosecutrix. The petitioner and his mother gave beatings to the prosecutrix. On 6.6.2022 the prosecutrix was rescued from petitioner's home by her mother and some other relations.
3(ii)
FIR. to
The investigation followed post registration of the Statements of the prosecutrix were recorded under Sections 161 and 164 Cr.P.C. on 9.6.2022. The prosecutrix again got recorded her statements under Section 164 Cr.P.C.
on 1.7.2022 and under Section 161 Cr.P.C. on 2.7.2022. In the first set of statements recorded on 9.6.2022, the prosecutrix did not indict the bail petitioner, whereas in the second set of statements recorded in July 2022, she took a somersault from her earlier version and implicated the petitioner.
3(iii) According to the status report, the date of birth of the prosecutrix was 27.5.2004 which makes her 17 years and 2 months old in July 2021 i.e. the date when she created her Facebook ID.
4(i) Learned counsel for the petitioner argued that it was the prosecutrix who had taken the lead and relentlessly ::: Downloaded on - 16/07/2022 20:02:17 :::CIS 5 pursued the petitioner. She had expressed her desire to marry the petitioner. That the prosecutrix was known to the wife of the .
petitioner. The petitioner had already informed the prosecutrix that he was a married man, had three children and could not marry her. Learned counsel for the petitioner further submitted that on 29.5.2022 the prosecutrix had threatened the petitioner that in case he did not solemnize marriage with her, she will implicate him and his family members. That under these threats, simple marriage was solemnized between the petitioner and the prosecutrix on 1.6.2022. In terms of the date of birth reflected in the Aadhar Card, carried by the prosecutrix, she had attained the age of majority on 27.5.2022. Learned counsel for the petitioner further submitted that after the solemnization of the marriage, the family members of the prosecutrix hatched a conspiracy and attacked the petitioner and his family members during the intervening night of 6 th and 7th June, 2022. FIR No. 44/22 regarding this incident was registered on 7.6.2022 at Police Station, Arki for the offences under Sections 452, 147, 148, 159, 323, 504, 506 and 307 of Indian Penal Code.
Subsequently, the present FIR was got registered on 8.6.2022 by the prosecutrix and her family members as a counter blast to ::: Downloaded on - 16/07/2022 20:02:17 :::CIS 6 FIR No. 44. Learned counsel for the petitioner also submitted that the petitioner is innocent and has been falsely implicated .
with the offences alleged against him. It was also submitted that pursuant to the ad-interim protection granted to the petitioner on 5.7.2022, the petitioner has regularly joined the investigations and is cooperating with the investigating agency.
It was further stated that the petitioner will abide by all the terms and conditions, which may be imposed upon him, in the event of his enlargement on bail.
4(ii) Learned Assistant Advocate General opposed the bail petition on the ground that the petitioner is accused of serious offences in the FIR including the offences under Section 376 IPC and Section 6 of POCSO Act.
4(iii) Learned counsel for the complainant while opposing the bail plea submitted that the assertion of solemnization of marriage between the petitioner and the prosecutrix is false. No marriage between the two was solemnized on 1.6.2022.
Learned counsel also argued that the petitioner had not disclosed his true marital status to the prosecutrix at the relevant time and had established physical relations with her against her wish.
::: Downloaded on - 16/07/2022 20:02:17 :::CIS 75(i) It is not in dispute that the family members of the prosecutrix are also facing FIR No. 44 registered at Police .
Station, Arki under Sections 452, 147, 148, 159, 323, 504, 506 and 307 of Indian Penal Code. The said FIR was registered a day earlier to the registration of the FIR in question.
5(ii) Prosecutrix's statement under Section 161 Cr.P.C.
was first recorded on 9.6.2022. The prosecutrix therein had stated being aware all the time about the bail petitioner being already married with three children. She had also denied having been forced by the petitioner for establishing physical relationship. She has also denied being forced by the petitioner for solemnizing marriage with her by extending any false promise. To the same effect is the statement of the prosecutrix recorded under Section 164 Cr.P.C.
5(iii) The prosecutrix took a u-turn from her earlier statements and got recorded second set of statements under Section 161 Cr.P.C. on 2.7.2022 and under Section 164 Cr.P.C.
on 1.7.2022 implicating the petitioner.
I have considered all the statements of the prosecutrix. Detailed reference to the same is avoided at this stage, lest it causes prejudice to the case of either parties.
::: Downloaded on - 16/07/2022 20:02:17 :::CIS 8However, for the purpose of adjudication of this bail petition, at this stage, prima-facie, it appears from the record that .
prosecutrix had been in some sort of relationship with the petitioner.
5(iv) In terms of the investigation carried out by the respondent, the date of birth of prosecutrix is 27.5.2004.
Prosecutrix thus was 18 years old on 1.6.2022 i.e. the date of alleged solemnization of marriage between the petitioner and the prosecutrix. The FIR in question was registered on 8.6.2022. The status report also reflects that the prosecutrix had stayed in petitioner's home from 1.6.2022 to 6.6.2022.
Prima- facie, it seems from the record that the prosecutrix was of sufficient mature age. The status report does not indicate any criminal history of the petitioner. Investigation qua the petitioner is complete. Petitioner is a local resident. It is not the case of the prosecution that the petitioner had misused the liberty granted to him in terms of interim order. Considering all attending circumstances, the petitioner has made out a case for confirmation of ad-interim protection granted to him vide order dated 5.7.2022. Accordingly, this petition is allowed. The ad-
::: Downloaded on - 16/07/2022 20:02:17 :::CIS 9interim protection granted to the petitioner vide order dated 5.7.2022 is made absolute subject to following conditions:
.
(i) The petitioner shall join the investigation of the case as and when called for by the Investigating Officer in accordance with law and shall cooperate with the Investigating Agency.
(ii) The petitioner shall not tamper with the evidence or hamper the investigation in any manner whatsoever:
(iii) The petitioner shall not contact the complainant/her family members threaten or browbeat her/them or to use any pressure tactics in any manner whatsoever.
(iv) The petitioner shall not leave India without prior permission of the Court.
(v) The petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or any Police Officer;
(vi) The petitioner shall attend the trial on every hearing, unless exempted in accordance with law.
(vii) The petitioner shall inform the Station House Officer of the concerned Police Station about his place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioner shall furnish furnish details of his Aadhar Card, Telephone Number, E-mail, PAN Card, Bank Account Number, if any.
In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter. Learned trial Court shall ::: Downloaded on - 16/07/2022 20:02:17 :::CIS 10 decide the matter without being influenced by above observations.
.
With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous applications, if any.
July 15, 2022
(vs)
r to Jyotsna Rewal Dua
Judge
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