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Judgments of Supreme Court of India and High Courts

Decided On: 4Th April vs State Of Himachal Pradesh on 4 April, 2019

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 44 of 2019
Decided on: 4th April, 2019
Bunty 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. Manohar Lal Sharma, Advocate.

For the respondent/State: M/s. S.C. Sharma and Shiv Pal

Manhans and P.K. Bhatti, Additional
Advocates General with Mr. Raju Ram
Rahi, Deputy Advocate General.

_

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. 12 of2018, dated 26.01.2018, under Section

376 IPC and Sections 4 and 6 of POCSO Act, registered at Police

Station Dalhousie, District Chamba, 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. No fruitful

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

period, so he be released on bail.

1

Whether reporters of Local Papers may be allowed to see the judgment? yes

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2

3. Police report stands filed. As per the prosecution story, on

26.01.2018 the prosecutrix (name withheld) got her statement recorded

with the police, wherein she stated that she is 16 years of age and

.

studies in 11th standard. She further stated that the petitioner on the

pretext of marriage committed sexual intercourse with her many times.

As per the prosecutrix, in the month of March, 2018, she came to know

that the petitioner does not want to marry her. She came to know that

she is pregnant and the petitioner on the pretext of marriage

committed sexual intercourse with her. On the basis of the complaint,

so made by the prosecutrix, police registered a case and the

investigation ensued. During the course of investigation, police on the

identification of the prosecutrix prepared the spot map and made the

relevant recoveries. The prosecutrix was medically examined and the

medical officer did not rule out the possibility of recent sexual

intercourse. The petitioner was arrested and was medically examined.

Police procured the records qua the date of birth of the prosecutrix and

it was unearthed that she was born on 21.09.2001. The statement of

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

final medical opinion, there is single live intrauterine pregnancy of 25

weeks, 03 days, i.e., HR 138 beats/min EDD on 27.05.2018 and there

is no gross congenital anomaly seen. On 02.06.2018, the prosecutrix

gave birth to a baby girl and the DNA report is awaited. As per the

prosecution, on 24.04.2018 challan was presented in the Court and

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evidence of thirteen witnesses have been recorded. Lastly, it is prayed

that the bail application of the petitioner be dismissed as the petitioner

was involved in a serious offence, as the petitioner, if released on bail,

.

may tamper with the prosecution evidence and may also flee from

justice.

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 has been falsely implicated in the present case. It has been

further argued that that no fruitful purpose will be served by keeping

the petitioner behind the bars for an unlimited period. 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. Conversely, the learned Additional Advocate

General has argued that the petitioner was found involved in a serious

offence and in case he is enlarged on bail, he may tamper with the

prosecution evidence and may also flee from justice. It has been argued

that the bail 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 neither

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4

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, after taking into consideration the fact that

.

as per the prosecution the prosecutrix and the petitioner have

solemnized marriage, considering the age of the petitioner, who is only

24 years old and also considering the overall aspects of the case, which

have come on record, including the fact that the petitioner is resident

of the place, neither a position to tamper with the prosecution evidence

nor in a position to flee from justice, this Court finds that no fruitful

purpose will be served by keeping the petitioner behind the bars for an

unlimited period and the ends of justice will only be met in case he is

enlarged on bail. Thus, 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 case FIR No. 12

of 2018, dated 26.01.2018, under Section 376 IPC and Sections 4 and

6 of POCSO Act, registered at Police Station Dalhousie, District

Chamba, H.P., and was released by Co-ordinate Bench of this High

Court, vide order dated 11.01.2019, on interim bail, shall be released

on bail on his furnishing personal bond in the sum of `25,000/-

(rupees twenty five thousand) with one surety in the like amount to the

satisfaction of the Arresting Officer. The bail is granted subject to the

following conditions:

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(i) That the petitioner will appear before the
learned Trial Court/Police/authorities 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)
4th April, 2019
r Judge

(virender)

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