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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 865 of 2017
Decided on: 18th July, 2017
.
Amit Kumar ….Petitioner.
Versus
…Respondent.
State of Himachal Pradesh.
Coram
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 No.
For the petitioner: Mr. Arun Sehgal, Advocate.
For the respondent: Mr. Pushpinder Jaswal, Dy. AG,
with Mr. Rajat Chauhan, Law
Officer.
HC Ravinder Chaudhary No. 101,
Police Station Panchrukhi, District
Kangra, H.P.
__
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. 155 of 2016, dated 16.08.2016,
under Sections 363, 366, 376, 506 of Indian Penal Code, 1860 ( for
short “IPC”) and Sections 4 and 6 of POCSO Act, registered at
Police Station Palampur, H.P.
2. As per the petitioner, he is innocent and has been
falsely implicated in the present case. He is resident of the place
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Whether reporters of Local Papers may be allowed to see the judgment?
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and 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, on
.
16.08.2016, Smt. Sushma Sharma (complainant), by way of filing a
complaint, reported to the police that her daughter (prosecutrix)
studies in 10+1 in Crescent School Banuri and the petitioner was
her classmate. On 22.02.2016 the petitioner told the prosecutrix
that today is his birthday and they will celebrate it at
Jogindernagar alongwith other friends. The petitioner forcibly took
the prosecutrix through a bus to Jogindernagar and thereafter he
took her to a room, where he gave her some white juice. When the
prosecutrix asked about the other friends, then the petitioner did
not allow her to make calls. Thereafter, the petitioner started
doing vulgar acts with her and he left her at Banuri and also
threatened her. The petitioner, through telephonic calls, also
threatened to defame the prosecutrix. The petitioner also black
mailed the prosecutrix that he will upload her recording on social
site. The police, acting upon the complaint of the complainant,
registered an FIR under Sections 376, 506 IPC and Section 4 of
POCSO Act. The police got conducted the medical examination of
the prosecutrix. The statements of the witnesses were also
recorded. The accused was arrested on 16.08.2016 and his
medical examination was also conducted. The statement of the
prosecutrix was also recorded under Section 164 Cr.P.C. The
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chemical analysis report revealed that sexual assault on the
prosecutrix. The investigation further unearthed that the
petitioner sexually assaulted the prosecutrix on 22.02.2016 and
.
03.06.2016 at different places. The police visited the spots of
occurrence and got the same photographed. The proceedings were
videographed and date of birth certificate of the prosecutrix was
also obtained, as per which she was born on 01.01.1999. Call
details were obtained, which revealed that the petitioner used to
call the prosecutrix from his mobile No. 82639-32995. Mobile, SIM
card and memory card of the petitioner were also taken into
possession and were sent for print outs to RFSL, Dharamshala,
and after obtaining the same, supplementary challan was
presented in the Court. Lastly, the prosecution has prayed that
the bail application of the petitioner may be dismissed.
4. Heard. The learned counsel for the petitioner has
argued that the petitioner is innocent and he is resident of the
place. He has further argued that he is neither in a position to
tamper with the prosecution evidence nor in a position to flee from
justice. The petitioner is behind the bars for the last more than a
year and no fruitful purpose will be served by keeping him behind
the bars for an unlimited period, so the petitioner may be released
on bail. Conversely, the learned Deputy Advocate General has
argued that the petitioner has committed a serious offence and in
case he is enlarged on bail there are chances that they may tamper
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with the prosecution evidence and flee from justice, so the present
is a fit case where the bail is required to be dismissed.
5. I have gone through the rival contentions of the parties
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and the police record in detail.
6. At this stage, taking into consideration the allegations
leveled against the petitioner, which have come on record, the fact
that the petitioner is behind the bars for the last more than a year,
the age of the prosecutrix as well as the age of the accused, also
the fact that both, petitioner and the prosecutrix, were studying
together in the school at the time of the alleged incidence, the
delay in lodging the FIR and other material, which has come on
record, and also the fact that the investigation in the present
matter is complete and challan stands filed in the Court, this Court
finds that the petitioner is not in a position to tamper with the
prosecution evidence or flee from justice. At the same point of
time, the petitioner cannot be kept behind the bars for an
unlimited period, as he is behind the bars for approximately more
than a year, so 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 Palampur, District Kangra, in connection with case
FIR No. 155 of 2016, dated 16.08.2016, under Sections 363, 366,
376, 506 IPC and Sections 4 and 6 of POCSO Act, he shall be
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released on bail forthwith, subject to his furnishing personal bond
in the sum of `50,000/- (rupees fifty thousand) with one surety in
the like amount to the satisfaction of learned Trial Court. The bail
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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 to theInvestigating Officer or Court.
7. In view of the above, the petition is disposed of.
Copy dasti.
(Chander Bhusan Barowalia)
18th July, 2017 Judge
(virender)
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