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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 976 of 2017
Decided on: 6th September, 2017
.
Jamaludeen ….Petitioner.
Versus
State of Himachal Pradesh. …Respondent.
Coram
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 No.
For the petitioner: Mr. Jangvir S. Hooda and Mr.
Sat Prakash, Advocates.
For the respondent: Mr. Virender K. Verma, Addl. AG,
with Mr. Pushpinder Jaswal, Dy.
AG.
ASI Taran Jeet Singh, I.O. Police
Station Kala Amb.
__
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. 17 of 2017, dated 27.02.2017,
under Sections 363, 366(A), 376 IPC and Section 4 of POCSO Act,
registered at Police Station Kala Amb, District Sirmaur, H.P.
2. As per the petitioner, he is innocent and has been
falsely implicated in the present case. He is neither in a position to
tamper with the prosecution evidence nor in a position to flee from
justice, so he may be released on bail.
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Whether reporters of Local Papers may be allowed to see the judgment?
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3. Police report stands filed. As per the prosecution, on
27.02.2017, complainant Shri Sahwan Ansari moved a complaint
to the police alleging that he has two daughters and the younger
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one, whose age is 15½ years, used to stay in the house, as she has
studied upto 8th standard. He has further alleged that he engaged
the petitioner as a servant in his shop and he used to come to his
house. On 25.02.2017, when his daughter (prosecutrix) was alone
in the house, the petitioner on the pretext of marrying enticed her
away. On the basis of the complaint of the complainant, police
registered a case against the petitioner and investigation ensued.
On 06.03.2017, on the identification of the complainant,
prosecutrix was recovered from a rain shelter, near Auto Stand,
Phase-II, Delhi, and she was entrusted in the custody of the
complainant. The petitioner was brought to Police Station Kala
Amb. Statement of the prosecutrix was recorded under Section
161 Cr.P.C., wherein she has stated that the petitioner established
physical relations with her many times. The petitioner was
arrested and the prosecutrix was medically examined. Statement
of the prosecutrix, under Section 164 Cr.P.C., was recorded before
the learned Chief Judicial Magistrate. On the basis of the
identification of the petitioner, spot maps of the sites, where he
kept the prosecutrix, were prepared. Police also recovered a bed
sheet and entry register of the hotel, where he kept the
prosecutrix. The petitioner was medically examined. Samples
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were sent for forensic analysis and as per the report of forensic
analysis, human semen was detected on the underwear and
pajama of the prosecutrix. As per the medical opinion, the
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petitioner was found fit for sexual intercourse. As per the records,
the prosecutrix was born on 29.07.2001 and on the day of
occurrence, her age was fifteen years and seven months. After
conclusion of the investigation, challan was presented in the Court.
As per the prosecution, report of DNA analysis is yet to be received
and thereafter supplementary challan will be presented in the
Court. Lastly, the prosecution has prayed that as the petitioner
was found involved in a heinous crime, his bail application may be
dismissed.
4. Heard. The learned counsel for the petitioner has
argued that the petitioner is innocent and he is neither in a
position to tamper with the prosecution evidence nor in a position
to flee from justice. He has further argued that no fruitful purpose
will be served by keeping the petitioner behind the bars for an
unlimited period. Conversely, the learned Additional Advocate
General has argued that there is likelihood that in case the
petitioner is enlarged on bail, he may flee from justice. He has
further argued that the petitioner is hardened criminal and also
taking into consideration the seriousness and gravity of the
offence, it has been prayed that the bail application may be
dismissed.
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5. I have gone through the rival contentions of the parties
and the police report in detail.
6. The complainant has stated that the petitioner took
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his daughter when he had gone with the flock of sheep in the
jungle on the day of occurrence. At this stage, taking into
consideration the age of the petitioner as well as of the prosecutrix,
this Court finds that in case the petitioner is kept behind the bars
for an unlimited period, no purpose will be served as the petitioner
is neither in a position to tamper with the prosecution evidence nor
in a position to flee from justice, so keeping in view all the aspects,
which have come on record, and without discussing the same at
this moment, this Court is of the considered opinion that the
present is a fit case where the judicial discretion to admit the
petitioner on bail is required to be exercised in his favour.
Accordingly, the present petition is allowed and it is ordered that
the petitioner, who has been arrested by the police of Police Station
Amb, District Sirmaur, H.P., in connection to FIR No. 17 of 2017,
dated 27.02.2017, under Sections 363, 366(A), 376 IPC and
Section 4 of the POCSO Act, he shall be released on bail forthwith,
subject to his furnishing personal bond in the sum of `25,000/-
(rupees twenty five 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 as and when required.
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(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.
7. In view of the above, the petition is disposed of.
Copy dasti.
(Chander Bhusan Barowalia)
6th September, 2017 Judge
(virender)
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