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Shiv Chand vs State Of Himachal Pradesh on 28 February, 2018

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?

01/03/2018 22:57:59 :::HCHP
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

01/03/2018 22:57:59 :::HCHP
3

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.

01/03/2018 22:57:59 :::HCHP
4

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 the

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5

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)

28th February, 2018 Judge
(virender)

r to

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