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Himachal Pradesh High Court · body

2015 DIGILAW 282 (HP)

Mohamad Iqbal v. State of H. P.

2015-04-02

P.S.RANA

body2015
JUDGMENT : P.S.Rana, Judge. Present petition is filed under Section 439 of the Code of Criminal Procedure 1973 for grant bail in connection with FIR No.49 of 2014 dated 27.10.2014 registered under Sections 363, 366, 376 IPC and under Section 4 of Protection of Children from Sexual Offences Act 2012 at Police Station Zhakari District Shimla HP. 2. It is pleaded that allegations against the petitioner are that petitioner had kidnapped the prosecutrix and thereafter forced the prosecutrix for marriage. It is pleaded that allegations against the petitioner are false and petitioner is innocent. It is pleaded that petitioner will not tamper with the prosecution evidence. It is pleaded that the age of the petitioner is 20 years. Prayer for acceptance of bail petition filed under Section 439 Cr.P.C sought. 3. Per contra police report filed. There is recital in police report that FIR No. 49 of 2014 dated 27.10.2014 has been registered against the petitioner under Sections 363, 366 and 376 IPC and under Section 4 of POCSO Act 2012 at Police Station Zhakri District Shimla HP. There is recital in police report that on dated 27.10.2014 Kalam Singh came in Police Station along with his wife Sita Devi and filed criminal report. There is recital in police report that Kalam Singh has four daughters and one son. There is recital in police report that on dated 26.10.2014 at about 9 AM prosecutrix went to stitching centre Jeuri and thereafter prosecutrix did not come to her residential house. There is recital in police report that birth certificate of the prosecutrix obtained and as per birth certificate of the prosecutrix the age of the prosecutrix is 16 years and one month. There is recital in police report that site plan was prepared and petitioner was arrested. There is recital in police report that petitioner Mohamad Iqbal kidnapped the prosecutrix at Jammu on the pretext of marriage. There is recital in police report that prosecutrix and petitioner Mohamad Iqbal resided at Kathua for 5/7 days and thereafter petitioner took the prosecutrix to Indore in Madhya Pradesh through Delhi. There is recital in police report that thereafter prosecutrix and petitioner Mohamad Iqbal started residing in a rented room at Indore in Madhya Pradesh. There is recital in police report that petitioner Mohamad Iqbal has kept the prosecutrix as his wife and had committed sexual intercourse with her. There is recital in police report that thereafter prosecutrix and petitioner Mohamad Iqbal started residing in a rented room at Indore in Madhya Pradesh. There is recital in police report that petitioner Mohamad Iqbal has kept the prosecutrix as his wife and had committed sexual intercourse with her. There is recital in police report that bed sheet, shirt, salwar and underwear took into possession and sealed in a parcel. There is recital in police report that statement of the prosecutrix also recorded under Section 164 Cr PC. There is recital in police report that if the petitioner is released on bail then petitioner would create obstruction in the trial of the criminal case. Prayer for dismissal of bail petition sought. 4. Following points arise for determination in the present bail petition: (1) Whether petition filed under Section 439 of the Code of Criminal Procedure 1973 is liable to be accepted as mentioned in memorandum of grounds of bail petition?. (2) Final Order. 5. Court heard learned Advocate appearing on behalf of the petitioner and learned Additional Advocate General appearing on behalf of the respondent and also perused entire records carefully. Finding upon Point No.1. 6. Submission of learned Advocate appearing on behalf of the petitioner that petitioner is innocent and he has been falsely implicated in the present case cannot be decided at this stage. Same fact will be decided when case shall be decided on its merits by learned trial Court after giving due opportunity of hearing to both the parties to lead evidence in support of their case. 7. Another submission of learned Advocate appearing on behalf of the petitioner that prosecutrix and petitioner Mohamad Iqbal have married and prosecutrix voluntarily joined the company of the petitioner and on this ground bail petition be allowed is rejected being devoid of any force for the reason hereinafter mentioned. It is prima facie proved on record that when prosecutrix voluntarily had gone with petitioner Mohamad Iqbal at that time the age of the prosecutrix was sixteen years and one month as per birth certificate issued by the Panchayat. As per Child Marriage Restraint Act adult male below 21 years cannot marry and as per Child Marriage Restraint Act female below eighteen years cannot marry. It is prima facie proved on record that the age of the prosecutrix was not eighteen years at the time of alleged marriage. As per Child Marriage Restraint Act adult male below 21 years cannot marry and as per Child Marriage Restraint Act female below eighteen years cannot marry. It is prima facie proved on record that the age of the prosecutrix was not eighteen years at the time of alleged marriage. Hence it is prima facie proved on record that marriage between the petitioner and prosecutrix was performed contrary to Child Marriage Restraint Act. Even as per Section 2D of Protection of Children from Sexual Offences Act, 2012 word child has been defined as any person below the age of eighteen years. Even as per Section 361 IPC relating to criminal offence of kidnapping from lawful guardian the age of the female should be below eighteen years. Hence Court is of the opinion that criminal offence under Protection of Children from Sexual Offences Act 2012 and criminal offence punishable under Section 363 IPC are attracted against the petitioner in the present case and it is held that consent of prosecutrix is immaterial because the age of the prosecutrix was below eighteen years at the time of alleged incident. It is held that Protection of Children from Sexual Offences Act, 2012 and Child Marriage Restraint Act are special Acts. Even Section 375 IPC relating to criminal offence of rape was amended on 03.02.2013 and consent age has been enhanced to eighteen years. Present FIR No. 49 of 2014 was registered on dated 27.10.2014 after amendment in Section 375 IPC relating to consent age. Court is of the opinion that even offence under Section 376 IPC is also attracted against the petitioner and defence of consent is not available to petitioner hence it is prima facie proved on record that age of prosecutrix was below eighteen years at the time of alleged incident. 8. Another submission of learned Advocate appearing on behalf of the petitioner that any condition imposed by the Court will be binding upon the petitioner and on this ground bail petition filed by the petitioner be allowed is also rejected being devoid of any force for the reason hereinafter mentioned. 8. Another submission of learned Advocate appearing on behalf of the petitioner that any condition imposed by the Court will be binding upon the petitioner and on this ground bail petition filed by the petitioner be allowed is also rejected being devoid of any force for the reason hereinafter mentioned. It is well settled law that at the time of granting bail following factors are to be considered (i) Nature and seriousness of offence (ii) Character of the evidence (iii) Circumstances which are peculiar to the accused (iv) Possibility of the presence of the accused at the trial or investigation (v) Reasonable apprehension of witnesses being tampered with (vi) The larger interests of the public or the State. See AIR 1978 SC 179 titled Gurcharan Singh and others Vs. State (Delhi Administration. Also see AIR 1962 SC 253 titled The State Vs. Captain Jagjit Singh. In view of grave allegations against petitioner qua criminal offences under Sections 363, 366 and 376 IPC and under Section 4 of the POCSO Act 2012 court is of the opinion that if the petitioner is released on bail at this stage then interest of State and general public will be adversely effected. Court is also of the opinion that if the petitioner is released on bail at this stage then trial of the case will be adversely effected. 9. Submission of learned Additional Advocate General appearing on behalf of the respondent that if the petitioner is released on bail then petitioner will induce and threat the prosecution witness and on this ground bail petition filed by petitioner be rejected is accepted for the reason hereinafter mentioned. There is apprehension in the mind of the Court that if the petitioner is released on bail at this stage then petitioner will induce and threat the prosecution witness. Court is of the opinion that it is not expedient in the ends of justice to release the petitioner on bail at this stage. Hence point No.1 is answered in negative. Point No.2. Final Order. 10. In view of the above stated facts bail petition filed under Section 439 of the Code of Criminal Procedure 1973 is rejected. Observation made hereinabove is strictly for the purpose of deciding the present bail petition and it shall not effect merits of the case in any manner. Bail petition is disposed of. All pending application(s) if any are also disposed of.