Smt. Maina Devi vs The State Of Himachal Pradesh on 28 June, 2017

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP(M) No.: 395 of 2017

Date of Decision: 28.06.2017

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Smt. Maina Devi ….Petitioner.

Vs.

The State of Himachal Pradesh …..Respondent.

Coram:
The Hon’ble Mr. Justice Ajay Mohan Goel, Judge

Whether approved for reporting?1No.
For the petitioner: Mr. Lakshay Thakur, Advocate.

For the respondent: Mr. Vikram Thakur Ms. Parul Negi,
Deputy Advocate Generals.

ASI Dinesh from Women Police Station
Kullu is present.

Ajay Mohan Goel, Judge (Oral):

Status report filed, which is taken on record. I have

heard the learned counsel for the parties and have gone through the

records of the case, which has been produced by the learned Deputy

Advocate General.

2. By way of this petition filed under Section 439 of the

Criminal Procedure Code, the petitioner has prayed for grant of regular

bail in connection with FIR No. 7 of 2016, dated 24.10.2016, registered

at Police Station, Kullu, under Section 376-D of the Indian Penal Code.

Whether the reporters of the local papers may be allowed to see the Judgment?

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3. As per the records, the petitioner is in custody since

25th of October, 2016 and from 26th of October, 2016, she is in judicial

custody.

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4. Mr. Lakshay Thakur, learned counsel appearing for the

petitioner has submitted that besides the fact that the petitioner has been

falsely implicated in the case, even otherwise, no fruitful purpose shall be

served by keeping her in custody, as nether she is a prime accused nor

any substantive allegation has been levelled against her even by the

prosecutrix. He has drawn the attention of this Court towards the

statement of the prosecutrix recorded under Section 164 of the Code of

Criminal Procedure before the Chief Judicial Magistrate, Lahaul Spiti

at Kullu. Mr. Thakur has also argued that as per the prosecutrix, she was

allegedly sexually molested by one Chappe Ram on the intervening night

of 22nd and 23rd October, 2016, however, it is a matter of record that FIR

was registered on 24th October, 2016 without any justification of delay.

On these basis, he has submitted that the entire case against the

petitioner was a concocted one and in these circumstances, he has

prayed that the petitioner be released on bail.

5. Mr. Vikram Thakur, learned Deputy Advocate General has

argued that as the case is now fixed for recording the statements of the

prosecution witnesses on 3rd August, 2017, therefore, in case the accused

is ordered to be released on bail at this stage, she may try to influence the

prosecution witnesses and taking into consideration the gravity of the

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offence, this Court may not accept the prayer of the petitioner for grant of

bail.

6. Undoubtedly, FIR stands registered under Section 376 of the

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Indian Penal Code but, in my considered view, it is not the statutory

provision under which the FIR is lodged, which governs the factum of a

petitioner being released on bail and other ancillary factors are also

required to be considered while dealing with the petition under Section

439 of the Criminal Procedure Code.

7. Coming to the facts of this case, records demonstrate that

before the FIR was registered, there was a missing report lodged qua the

prosecutrix, which finds mention in the Daily Station Diary of Women

Police Station, Kullu dated 23.10.2016. Besides this, though the alleged

incident took place on the intervening night of 22nd and 23rd October,

2016, yet the FIR was lodged on 24th October, 2016. It is evident from the

records that prosecutrix did not even return back to her home on 23rd

October, 2016 at all. Statement of the prosecutrix so recorded under

Section 164 of the Code of Criminal Procedure has also been perused by

me. As per the prosecutrix, the present petitioner had locked the door in

which she was with Chappe Ram.

8. Besides this, one of the co-accused Beli Ram already stands

released on bail by this Court in Cr. MPM No. 327 of 2017. Whether or

not the petitioner is guilty of the offence with which she has been charged

has to be established by the prosecution and thereafter shall be

adjudicated upon by the learned trial Court, when the matter is finally

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argued before it. However, in the facts of the case, I am of the considered

view that the petitioner is entitled to be enlarged on bail.

9. Accordingly, this petition is allowed and the petitioner is

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ordered to be released on bail, on her furnishing personal bond to the

tune of Rs.25,000/- with one surety in the like amount to the satisfaction

of learned trial Court, subject to the following conditions:

(i) Petitioner shall make herself 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;

(ii)

She shall not hamper with the prosecution evidence

nor hamper the investigation of the case in any
manner whatsoever;

(iii) She shall not 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 Court or the Police Officer; and

(iv) She shall not leave the territory of India without

prior permission of the Court.

10. It is clarified that the observations made by this Court in this

order are only for the purpose of adjudicating upon the present bail

petition and the learned trial Court shall not be influenced by any of

these observations while deciding the case on merits, in the course of

trial. It shall be open for the prosecution to move this Court for

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cancellation of the bail in case petitioner abuses the bail which has been

granted in her favour. The petition stands disposed of in above terms.

Copy dasti.

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(Ajay Mohan Goel)
Judge
June 28, 2017
(bhupender)

r to

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