IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 1485 of 2017
Decided on: 19th December, 2017
Naresh Kumar Gupta ….Petitioner
Versus

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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. N.K. Thakur, Sr. Advocate, with Mr.
Divya Raj Singh, Advocate.

For the respondent/State: Mr. Rajat Chauhan, Law Officer.

SI Arjun Dev, Police Station Amb, District
Una, H.P.

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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. 232 of

2017, dated 06.12.2017, under Section 354A(I) IPC and Sections 8 and

12 of POCSO Act, registered at Police Station Amb, District Una, 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.

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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

06.12.2017 a complaint was received by the police from the Court of

learned Judicial Magistrate 2nd Class, Amb, wherein the prosecutrix

has alleged that she is sixteen years of age and on 20.10.2017 when

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the wife of the petitioner was away, the petitioner, who is uncle (chaha)

of the prosecutrix, called the prosecutrix to his rented house on the

pretext of preparing meals. The petitioner, after recollecting the

memories of the deceased father of the prosecutrix started crying and

he initially hugged her and thereafter he started touching the

prosecutrix indecently. The petitioner forcibly caught hold of her and

started fondling with her breasts. The prosecutrix somehow rescued

herself from the clutches of the petitioner. It is further averred that

that the petitioner taking advantage of weak state of mind of the

mother of the prosecutrix wants to take custody of the prosecutrix,

however, the custody was given to maternal aunt of the prosecutrix by

the order of Chairman, Child Welfare Committee, Una. The prosecutrix

narrated the entire incident to her aunt and the police refused to take

any action, so the prosecutrix knocked the door of the Court and the

Court forwarded the complaint of the prosecutrix to Police Station,

Amb, for appropriate action, as per the law. The investigation ensued

and spot map was prepared and the statement of the prosecutrix was

recorded under Section 161 Cr.P.C.. Record qua date of birth of the

prosecutrix was also procured and as per the record, the prosecutrix

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was born on 20.07.2001 and accordingly her age at the time of the

offence was sixteen years and four months. The statement of the

prosecutrix was also recorded under Section 164 Cr.P.C. As per the

prosecution, the petitioner is very clever person and he is concealing

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the facts, so his custodial interrogation is required. Lastly, the

prosecution has prayed that the bail application of the petitioner may

be rejected.

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

petitioner is resident of the place and he is joining and co-operating in

the investigation, so his custodial interrogation is not at all required.

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. 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

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joining and co-operating in the investigation and also the 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

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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 No. 232 of 2017, dated

06.12.2017, under Section 354A(I) IPC and Sections 8 and 12 of

POCSO Act, registered at Police Station Amb, District Una, H.P., on his

furnishing personal bond to the tune of `20,000/- (rupees twenty

thousand only) with one surety in the like 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 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)
19th December, 2017 Judge
(virender)

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