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Judgments of Supreme Court of India and High Courts

Ashwani Kumar vs State Of Himachal Pradesh on 20 August, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 959 of 2018

Decided on: 20th August, 2018

.

Ashwani Kumar ….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. Pushpinder Singh Jaswal, Advocate.

For the respondent/State: Mr. Ashwani Sharma and Mr. P.K.

r Bhatti, Additional Advocates General.

S.I. Rajeev Kumar, S.H.O. Police Station
Bhoranj, District Hamirpur, H.P.

_

Chander Bhusan Barowalia, Judge. (oral).

The present bail application has been moved by the

petitioner under Section 439 of the Code of Criminal Procedure seeking

his release in case FIR No. 20 of 2018, dated 09.02.2018, under

Sections 363, 376, 376D IPC and Sections 4 and 6 of POCSO Act,

registered in Police Station, Bhoranj, District Hamirpur, 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

resident of the place and neither in a position to tamper with the
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.

20/08/2018 22:58:56 :::HCHP
2

prosecution evidence nor in a position to flee from justice, so he may be

released on bail.

3. Police reports stand filed. As per the prosecution story, on

.

09.02.2018 the complainant, who is father of the prosecutrix (name of

the prosecutrix withheld) made a complaint to the police. The

complainant alleged that his daughter (the prosecutrix) has been

kidnapped by someone. On the anvil of the complaint, so filed by the

complainant, police machinery was set into motion and investigation

ensued. The prosecutrix was recovered by the police from Jupiter

Service Station, Hoshiarpur.

r The statements of the witnesses were

recorded and the spot map was prepared. The spot was also

photographed. The statement of the prosecutrix was recorded under

Section 164 Cr.P.C. During the course of investigation, it was

unearthed that the petitioner alongwith other accused persons took the

prosecutrix towards Hoshiarpur. As per the prosecution, the petitioner

and other accused persons took the victim in their vehicle and

subjected her to sexual intercourse. The prosecutrix was medically

examined. In the case in hand, the challan stands presented in the

Court. As per the prosecution, in case the petitioner is enlarged on

bail, he may tamper with the prosecution evidence and may also flee

from justice. Lastly, the prosecution has prayed that the bail

application may be dismissed.

20/08/2018 22:58:56 :::HCHP
3

4. I have heard the learned Counsel for the petitioner, learned

Additional Advocate General for the State and gone through the record,

including the police report, carefully.

.

5. The learned Counsel for the petitioner has argued that the

petitioner is innocent and has been falsely implicated in the case in

hand. The petitioner is neither in a position to tamper with the

prosecution evidence nor in a position to flee from justice. He has

further argued that the petitioner is resident of the place and he cannot

be kept behind the bars for an unlimited period. Conversely, the

learned Additional Advocate General has argued that in case the

petitioner is released on bail, he may tamper with the prosecution

evidence and may also flee from justice. The petitioner has committed

a serious offence, thus the bail application of the petitioner may be

dismissed.

6. Noticeably, as per the certified copy of the orders passed by

the learned Trial Court, produced by the learned counsel for the

petitioner, charge against the petitioner has been framed only under

Section 363 read with Section 120-B IPC. Relevant extract from the

copy of order sheet is as under:

“Charge

……………. Charge you accused Ashwani Kumar
as follows:

That on 09.02.2018 at Jahu, you along with co-
accused after entering into criminal conspiracy,
kidnapped the victim who was minor without the

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4

consent of her lawful guardians and that you
thereby committed an offence punishable under
Section 363 read with Section 120-B, IPC and
within cognizance of this Court.”

7. At this moment, taking into consideration the role of the

.

petitioner, as emanating from the prosecution story, the fact that the

petitioner is charged for the commission of the offences under Section

363 and 120-B IPC only, he is resident of the place and neither in a

position to tamper with the prosecution evidence, nor in a position to

flee from justice and also the fact that he cannot be kept behind the

bars for an unlimited period, 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. Therefore, it is ordered that the

petitioner be released forthwith on bail, on his furnishing personal

bond to the tune of `25,000/- (rupees twenty five thousand only) with

one surety in the like amount to the satisfaction of the learned Trial

Court in case FIR No. 20 of 2018, dated 09.02.2018, under Sections

363, 376, 376D IPC and Sections 4 and 6 of POCSO Act, registered in

Police Station, Bhoranj, District Hamirpur, H.P. 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

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5

person acquainted with the facts of the case so
as to dissuade him/her from disclosing such
facts to the Investigating Officer or Court.

8. In view of the above, the petition is disposed of.

.

Copy dasti.

(Chander Bhusan Barowalia)

20th August, 2018 Judge
(virender)

r to

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