Jamaludeen vs State Of Himachal Pradesh on 6 September, 2017

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP(M) No. 976 of 2017
Decided on: 6th September, 2017

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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

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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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