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Cr.Mp(M) No. 286 Of2018 vs State Of Himachal Pradesh on 27 March, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 286 of2018
Decided on: 27th March, 2018
Vipin 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. S.D. Vasudeva, Advocate.

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

Bhatti, Additional Advocates General,
with Mr. Rajat Chauhan, Law Officer.

ASI Thakur Singh, Police Station
r Baijnath, 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. 7 of 2017, dated 12.01.2017, under

Sections 363, 120B read with Section 34 IPC, registered at Police

Station Baijnath, District Kangra, 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

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

12.01.2017 Shri Desh Raj (complainant) made a written complaint to

the police, wherein he has averred that on 10.01.2017 his daughter

.

(prosecutrix) eloped with the petitioner. As per the complainant, the

petitioner managed to take away the prosecutrix with the help of his

mother, Smt. Ganta Devi. On the basis of the complaint, so filed by the

complainant, police registered a case against the petitioner and the

investigation ensued. Statements of the witnesses were recorded. The

petitioner was enlarged on bail in case No. 154 of 2016, dated

30.09.2016, registered under Sections 363, 376 read with Section 34

IPC and Section 4 of POCSO Act, but upon the persistent goading of

Smt. Ganta Devi the petitioner took away the prosecutrix, thus

Sections 120B and 34 IPC were added in the FIR. Police obtained the

record qua date of birth of the prosecutrix, which is 30.10.2002, so

Section 4 of POCSO Act was also added. The petitioner was arrested

on 08.05.2017 and was medically examined. Statement of the

prosecutrix was also recorded under Section 164 Cr.P.C. The

petitioner is under judicial custody since 18.05.2017. As per the

medical report, the possibility of sexual assault upon the prosecutrix

has been ruled out. The challan stands presented in the Court. As per

the police, the petitioner and his cousin brother have earlier been

booked for taking away the prosecutrix. Lastly, the prosecution has

prayed that the bail application may be dismissed.

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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 he 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 no

fruitful purpose will be served by keeping him behind the bars for an

unlimited period. Conversely, the learned Additional Advocate General

has argued that taking into consideration seriousness of the offence,

the application of the petitioner may be dismissed.

6. In rebuttal the learned counsel for the petitioner has

argued that the petitioner cannot be kept behind the bars for an

unlimited period. He has further argued that the petitioner is resident

of the place and neither in a position to tamper with the prosecution

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

bail.

7. At this stage taking into considering the record, including

the photographs, letters and other material, which has come on record,

the age of the prosecutrix and also the age of the petitioner, this Court

finds that the petitioner is neither in a position to tamper with the

prosecution evidence nor in a position to flee from justice, as he is

resident of the place, so the petitioner cannot be kept behind the bars

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for an unlimited period. Therefore, 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 petition is allowed and it is

.

ordered that the petitioner, who has been arrested by the police, in

connection with FIR No. 7 of 2017, dated 12.01.2017, under Sections

363, 120B read with Section 34 IPC, registered at Police Station

Baijnath, District Kangra, H.P., he shall be released on bail forthwith in

this case, 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 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 the
Investigating Officer or Court.

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

Copy dasti.

(Chander Bhusan Barowalia)
27th March, 2018 Judge
(virender)

28/03/2018 23:32:57 :::HCHP
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.

28/03/2018 23:32:57 :::HCHP

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