IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMP(M) No. 1477 of 2018
.
Decided on: 20.11.2018
Shiv Singh alias Shiva …Petitioner
Versus
State of Himachal Pradesh …Respondent
Coram
The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?
For the petitioner: Mr. Y.P.S. Dhaulta, Advocate.
For the respondent: Mr. Anil Jaswal, Additional Advocate
General, with Mr. Raju Ram Rahi,
Deputy Advocate General.
Ms.Rita Insp/SHO, WPS, Baddi,
present in person.
Vivek Singh Thakur, Judge.(oral)
This petition under Section 439 of the Code of
Criminal Procedure (hereinafter referred to as ‘CrPC’) has
been filed for enlarging the petitioner on bail, who is in
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judicial custody since 18th August, 2018, in case FIR No. 29
of 2018, dated 2nd August, 2018, under Sections 363 and 366
.
of the Indian Penal Code (hereinafter referred to as ‘IPC’)
and under Sections 8, 17 and 18 of the Protection of
Children from Sexual Offences Act, 2012 (hereinafter
referred to as ‘POCSO Act), registered at Women Police
2. to
Station, Baddi, District Solan, H.P.
Brief facts of the case are that a boy Sanjeev
Kumar had allured a minor prosecutrix, aged about 15 years
6 months, to bring cash of Rs.2,00,000/ from her house and
to accompany him to Kalka Railway Station and thereafter,
at various places at Dehli and Jaipur. As per statement of
prosecutrix, on 31st July, 2018, Sanjeev Kumar had asked
her to bring money from her home and to accompany him
and during the night of 31st July, 2018 and present
petitioner Shiv Singh (Shiva) had helped the accused
Sanjeev Kumar in kidnapping her to Kalka Railway Station
from village Balyana, i.e. native place of the prosecutrix by
taking both of them on his motor cycle. On the basis of call
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detail report of Sanjeev Kumar and present petitioner
Shiva, statement of prosecutrix stands substantiated.
.
During investigating, petitioner was produced in the Police
Station on 18th August, 2018, by his father. Thereafter, on
being identified by the prosecutrix, he was arrested and
after remaining in police custody till 21st August, 2018, he
3. to
has been sent in judicial custody.
No doubt, Section 29 of the POCSO Act, provides
presumption as to commission or attempt to commit or
abetment of offences under Sections 3,5, 7 and 9 of the
POCSO Act against the accused, unless contrary is proved,
however, at the same time, in commission of offence, role of
petitioner/accused is also relevant for considering his plea of
enlarging him on bail. There is no allegation of the
prosecutrix against petitioner Shiv Kumar, except that he
had taken her along with accused Sanjeev Kumar to the
Kalka Railway Station on his motor cycle. Neither before
that nor thereafter, any link of petitioner Shiv Kumar with
Sanjeev Kumar has been pointed out in the record produced
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by the State. The only reason for opposition of the bail is
that the petitioner is a clever person and in case of his
.
release on bail, he may threat the witnesses and there is
public resentment against the offence committed by the
accused in the area.
4. As is evident from the record and status report
filed by the State, main accused is Sanjeev Kumar, who is
absconding, whereas the role of Shiv Kumar is too limited
and further he, himself, had submitted him to the
Investigating Agency for interrogation and it is not a case
that he was running away from the Investigating Agency,
rather he along with his father had appeared in the Police
Station on 18th August, 2018 on his own volition and had
made himself available for further investigation resulting to
his arrest. So far as the apprehension of threatening the
witnesses is concerned, a condition can be imposed upon the
petitioner and for violation whereof, he will have to face the
cancellation of bail, for which Prosecution Agency, if
occasion arises, can approach this Court at any time.
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5. Keeping in view the role of the petitioner,
allegations of the prosecutrix against him and his
.
subsequent conduct, I find that it is a fit case for releasing
him on bail. Accordingly, petitioner is ordered to be released
on bail in case FIR No. 29 of 2018, dated 2 nd August, 2018,
under Sections 363/ 366 of IPC and under Sections 8, 17, 18
of the POCSO Act, registered at Women Police Station,
Baddi, District Solan, H.P., if not required in any other case,
subject to his furnishing personal bond in the sum of
₹50,000/ with one surety in the like amount, to the
satisfaction of learned Trial Court.
6. Petitioner shall further abide by the following
conditions:
(i) That the petitioner shall make himself
available to the police or any other
investigating agency or Court in the
present case as and when required;
(ii) That the petitioner shall 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
from disclosing such facts to Court or to
any police officer or tamper with the
evidence. He shall not, in any manner,22/11/2018 22:56:51 :::HCHP
7try to overawe or influence or intimidate
the prosecution witnesses;
(iii) That he shall not obstruct the smooth
.
progress of the trial;
(iv) That the petitioner shall not commit the
offence similar to the offence to which heis accused or suspected;
(v) That the petitioner shall not misuse his
liberty in any manner;
(vi) That the petitioner shall not jump over
the bail and shall inform, in writing,
regarding any change of address, if any,
r from the present place of residence, inadvance, to Police Station Baddi, District
Solan, H.P.
7. It will be open to the prosecution to apply for
imposing and/or to the trial Court to impose any other
condition on the petitioner as deemed necessary in the facts
and circumstances of the case and in the interest of justice.
8. In case the petitioner violates any condition
imposed upon him, his bail shall be liable to be cancelled. In
such eventuality, prosecution may approach the competent
Court of law for cancellation of bail in accordance with law.
9. Learned trial Court is directed to ensure
compliance of the directions issued by the High Court vide
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communication No. HHC/VIG/Misc.Instructions /93IV.7139
dated 18th March, 2013, as applicable.
.
10. Observations made in this petition hereinbefore
shall not affect the merits of the case in any manner and is
strictly confined for the disposal of this bail application filed
under Section 439 CrPC.
11.
Petition stands disposed of in aforesaid terms.
Copy dasti.
(Vivek Singh Thakur)
Judge
November 20, 2018
(rishi)
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