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.
28/03/2018 23:32:57 :::HCHP
2
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.
28/03/2018 23:32:57 :::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 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
28/03/2018 23:32:57 :::HCHP
4
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 orpromise to any person acquainted with the
facts of the case so as to dissuadehim/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
5
.
28/03/2018 23:32:57 :::HCHP