IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP (M) No.605 of 2018.
Decided on: 11th June, 2018.
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Prem Lal …Petitioner.
Versus
State of H.P. …Respondent.
Coram
.
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 No.
For the petitioner : Mr. Anirudh Sharma, Advocate.
For the respondent : Mr. Ashwani Sharma with Mr. P.K. Bhatti,
Additional Advocate Generals.
ASI Keshav Ram, Police Station Arki, District
Solan, present in person.
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. 31 of 2018, dated 1.4.2018, under Sections 376, 506
and 323 of the Indian Penal Code, registered at Police Station Arki, District
Solan, H.P.
2. As per the averments made in the petition, the petitioner 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.
3. Police report stands filed. As per the prosecution story, on
1.4.2018, a complaint, under Section 156 (3) of the Code of Criminal
Procedure, was received in Police Station, Arki, District Solan, stating therein
that the complainant is aged about 36 years and is a permanent resident of
village Baggi and Post Office Baggi, Tehsil Arki, District Solan, and the
marriage of the complainant was solemnized with one Shri Dharam Pal in the
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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year 2004, but unfortunately husband of the complainant was expired in a
motor vehicle accident in the year 2010. The husband of the complainant
was a transporter and after his death, she carried on the transport business
of her husband. In the year 2010-2011, petitioner was working in the office
.
of “The Mangal Land Looser Co-operative Society”, the petitioner had been
assuring the complainant that he will extend all help to the complainant in her
transport business. In the year 2012, the petitioner started telling her that he
intends to marry with her by saying that he is still bachelor. Initially, she did
not take his talk seriously, but when he continuously made such offer and had
been helping her, then she developed belief that petitioner is a good person
and marrying with him may provide good life to her and her child, namely,
Nikhil. In the year 2013, when the petitioner became sure that the
complainant have blind faith in him and believed that he is a bachelor and will
marry her, the petitioner tried to establish physical relation and have sexual
intercourse with her. The complainant shown her unwillingness and requested
the petitioner that physical relations should be established only after
marriage, but the petitioner despite of unwillingness of the complainant, had
sexual intercourse with her. The consent obtained by the petitioner from the
complainant for sexual intercourse was not given voluntarily by the
complainant. At that time, the petitioner was already married and had no
intention to marry with her. Under these circumstances, the complainant was
not in a position to understand the nature and consequences of the consent
of sexual intercourse. The petitioner had been taking money from the
complainant and assured that whatever profit will be earned, the same will be
paid to her and her child. In the month of October, 2014, the complainant
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went to the house of the petitioner at village Bhalag, where some villagers
told that petitioner is already marked and has a wife and children, but when
the complainant made inquiry from the petitioner and then he told that his
marriage was dissolved by way of divorce. The petitioner has indulged in
.
sexual intercourse with the complainant after obtaining her consent by
playing fraud. Lastly, the prosecution has prayed that the bail application
may be dismissed.
4. The learned counsel for the petitioner has argued that no fruitful
purpose will be served by keeping the petitioner behind the bars for an
unlimited period. He has further argued that the petitioner 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. On the other hand, the learned
Additional Advocate General has argued that taking into consideration the
way the offence was committed and the seriousness of the offence, the bail
application of the petitioner may be dismissed.
5. Heard. After hearing the learned counsel appearing on behalf of
the parties and analyzing the facts, which have come on record, including the
business transactions and other material, including the age of the prosecutrix
as well as age of the petitioner, this Court finds 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, as he is neither in a position to tamper with the
prosecution evidence nor in a position to flee from justice. Accordingly, the
petition is allowed and it is ordered that the petitioner, who has been arrested
by the police of Police Station, Arki, District Solan, H.P., in connection with
FIR No.31 of 2018, dated 1.4.2018, under Sections 376, 506 and 323 of the
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Indian Penal Code, registered at Police Station Arki, District Solan,
H.P., be released on bail forthwith in this case, 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.
(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 tothe Investigating Officer or Court.
(iv) In case, the petitioner tries to tamper with the
prosecution evidence, the bail order is liable to be
recalled.
6. In view of the above, the petition is disposed of.
Copy dasti.
(Chander Bhusan Barowalia)
th
11 June, 2018 Judge
(CS)
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