IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 1400 of 2017
Decided on: 19th December, 2017
Umesh 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. Yash W. Chauhan Mr. Raj Negi,
Advocates.
For the respondent/State: Mr. Rajat Chauhan, Law Officer.
SI/SHO Sewa Singh, P.S. Majra, District
Sirmour.
_
Chander Bhusan Barowalia, Judge. (oral).
The present bail application has been moved by the
petitioner under Section 438 of the Code of Criminal Procedure for
releasing him on bail, in the event of their arrest, in case FIR No. 445 of
2017, dated 10.10.2017, under Section 376 IPC and Section 4 of
POCSO Act, registered at Police Station Paonta Sahib, District Sirmour,
H.P.
2. As per the learned counsel for the petitioner, 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
prosecution evidence nor in a position to flee from justice, thus he may
be released on bail.
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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3. Police report stands filed. As per the prosecution story, on
10.10.2017 the prosecutrix moved a complaint to the police alleging
that she is 20 years of age and was in love with the petitioner for the
last three years. As per the prosecutrix, the petitioner on the pretext of
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marrying her used to make physical relations with her. The petitioner
was drafted in the Army and he used to call the prosecutrix
continuously. The petitioner many times on the pretext of marrying
the prosecutrix established physical relations with her. Thereafter the
petitioner left the prosecutrix. The petitioner came on leave and on
06.10.2017 he took the prosecutrix to his home and forcible committed
sexual intercourse with her. On the basis of the complaint, so filed by
the prosecutrix, police machinery was set into motion and investigation
ensued. The spot map was prepared and the record qua the date of
birth of the prosecutrix was obtained from the concerned Panchayat.
The age of the prosecutrix at the time of the offence was found
seventeen years and five months so Section 4 of POCSO Act was added.
The statement of the prosecutrix was recorded under Section 164
Cr.P.C. and her mobile phone was taken into possession. On
16.12.2017 the petitioner was medically examined and preserved
samples were sent for forensic analysis at SFSL, Junga. As per the
prosecution, the petitioner is yet to be interrogated. Lastly, the
prosecution has prayed that the bail application of the petitioner may
be rejected.
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4. I have heard the learned Counsel for the petitioner, Law
Officer for the State and gone through the record, including the police
report, carefully.
5. The learned Counsel for the petitioner has argued that the
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petitioner is joining and co-operating in the investigation and his
custodial interrogation is not at all required. He has further argued
that the petitioner is resident of the place, 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. Conversely, the Law Officer has
argued that in case the petitioner is released on bail, he may tamper
with the prosecution evidence and may also flee from justice. He has
further argued that the petitioner has committed a serious offence, so
his bail application be dismissed.
6. At this moment, taking into consideration the fact that the
petitioner is resident of the place, neither in a position to tamper with
the prosecution evidence nor in a position to flee from justice, he is
joining and co-operating in the investigation and also the age of the
petitioner, allegations imputed in the complaint, so filed by the
prosecutrix, and also other ancillary circumstances, which have come
on record, the present is a fit case where the judicial discretion to
admit the petitioner on bail, in the event of his arrest, is required to be
exercised in his favour. Under these circumstances, it is ordered that
the petitioner be released on bail, in the event of his arrest, in case FIR
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No. 445 of 2017, dated 10.10.2017, under Sections 376 IPC and
Section 4 of POCSO Act, registered at Police Station Paonta Sahib,
District Sirmour, H.P., on his furnishing personal bond to the tune of
`20,000/- (rupees twenty thousand only) with one surety in the like
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amount to the satisfaction of the Investigating Officer. The bail is
granted subject to the following conditions:
(i) That the petitioner will join investigation of the
case as and when called for by the Investigating
Officer in accordance with law.
(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 anyperson 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)
Judge
19th December, 2017
(virender)
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