IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 108 of 2018
Decided on: 28th February, 2018
.
Shiv Chand ….Petitioner
Versus
State of Himachal Pradesh …Respondent
Coram
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1
For the petitioner: Mr. Satpal Chauhan and Mr.
r Dharamender Verma, Advocates.
For the respondent/State: Mr. Ashwani Sharma, Addl. AG, with Mr.
Kamal Kant Chandel, Dy. AG and Mr.
Rajat Chauhan, Law Officer.
ASI Mehar Chand, I.O. P.S. Nirmand,
District Kullu, 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. 43 of 2016, dated 13.05.2016, under
Sections 363, 366A, 376 IPC and Section 4 of POCSO Act, registered at
Police Station Nirmand, District Kullu, 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
1
Whether reporters of Local Papers may be allowed to see the judgment?
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2
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.
3. Police report stands filed. As per the prosecution story, on
.
13.05.2016 Shri Narmu Ram (complainant) reported the matter to the
police that he has two daughters and elder daughter (prosecutrix), who
is 17 years of age, went missing on 11.05.2016. The prosecutrix could
not be traced despite best efforts. On 12.05.2016, when younger
daughter of the complainant was on her way to school, one Krishnu
met her and he made her to talk with the prosecutrix on his phone.
The prosecutrix was seen sitting in a bus at Panjeta with Krishnu by
son of complainant’s mama. On 12.05.2016 the petitioner telephoned
the complainant and disclosed that he has married the prosecutrix. As
per the complainant, the petitioner has taken his daughter, who is a
minor, out of his custody. On the basis of the complaint, the police
machinery was set into motion, a case was registered against the
petitioner and the investigation ensued. On 17.05.2016 the
prosecutrix was found in the house of the petitioner in village
Taangling, Kinnaur and she was handed over to the complainant. The
statements of the witnesses were recorded. Statement of the
prosecutrix was also recorded on 18.05.2016, wherein she has stated
that the petitioner took her with the purpose of marrying her and he
also sexually assaulted her. The prosecutrix was subjected to medical
examination and as per the medical opinion the prosecutrix may have
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undergone sexual intercourse with a probable duration of less than one
week. On 09.06.2016 the petitioner was arrested and since then he is
judicial custody. The challan stands presented in the Court. Lastly,
.
the prosecution has prayed that the bail application may be dismissed.
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 have 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.
r He has
further argued that 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
the age of the prosecutrix, the way the offence was committed and the
seriousness of the offence, the application of the petitioner may be
dismissed.
6. In rebuttal the learned counsel for the petitioner have
argued that the petitioner cannot be kept behind the bars for an
unlimited period. 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, as he has three minor daughters and old mother to
look after, so he may be enlarged on bail.
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7. At this stage taking into considering the fact that the
petitioner is behind the bars for approximately one year and eight
months and also taking into consideration other aspects, which have
.
come on record, that the prosecutrix was of the age of discretion, her
visiting and accompanying the petitioner and also the fact that the
petitioner is neither in a position to tamper with the prosecution
evidence nor in a position to flee from justice, this Court finds that 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 of Police Station Nirmand, District Kullu, H.P., in
connection with FIR No. 43 of 2016, dated 13.05.2016, under Sections
363, 366A, 376 IPC and Section 4 of POCSO Act, registered at Police
Station Nirmand, District Kullu, H.P., he shall be released on bail
forthwith in this case, subject to 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 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 the01/03/2018 22:57:59 :::HCHP
5facts 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)
28th February, 2018 Judge
(virender)
r to
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