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Himachal Pradesh High Court · body

2016 DIGILAW 57 (HP)

Som Chand v. State of H. P.

2016-01-07

P.S.RANA

body2016
Order: P.S. Rana, J. Present bail application is filed under Section 438 Cr.PC for grant of anticipatory bail relating to FIR No.305/2015 dated 02.12.2015 registered under Sections 363, 366, 376 and 506 IPC in Police Station Kullu Distt. Kullu (H. P.). 2. It is pleaded that petitioner/accused and prosecutrix are in love with each other and both are willing to marry but parents of petitioner/accused and prosecutrix are against the marriage. It is further pleaded that petitioner/accused is student of B.Ed Class and petitioner/accused will appear before the investigating agency as and when required by the investigating agency. It is further pleaded that petitioner/accused will abide by all conditions imposed by the Court. It is further pleaded that petitioner/accused is innocent and has been falsely implicated in the present case. Prayer for grant of anticipatory bail sought. 3. Per contra police report filed. There is recital in police report that on 25.11.2015 prosecutrix went to Govt. Girls Senior Sec. School Sultanpur Kullu for appearing in paper of Patwari. There is further recital in police report that after completion of examination when prosecutrix was standing outside the gate then petitioner/accused chased the prosecutrix and at Dhalpur ground forced the prosecutrix to marry him. There is further recital in the police report that at Dhalpur ground prosecutrix refused to marry him. There is further recital in the police report that petitioner/accused mentally tortured the prosecutrix and told that he would humiliate the prosecutrix. There is further recital in the police report that thereafter petitioner/accused brought the prosecutrix to his residential house and snatched her mobile phone. There is further recital in the police report that w.e.f. 25.11.2015 to 29.11.2015 petitioner/accused committed sexual intercourse 4-5 times with the prosecutrix. There is further recital in the police report that on 30.11.2015 petitioner/accused abused the prosecutrix and turned out the prosecutrix from his residential house and also refused to marry with the prosecutrix and also threatened her that in case prosecutrix would disclose the incident to anybody then petitioner/accused would kill the prosecutrix. There is further recital in the police report that medical examination of the prosecutrix was conducted and as per opinion of Medical Officer prosecutrix was exposed to coitus and final opinion would be given after report from Forensic Lab. There is further recital in the police report that site plan was prepared and photographs also obtained. There is further recital in the police report that medical examination of the prosecutrix was conducted and as per opinion of Medical Officer prosecutrix was exposed to coitus and final opinion would be given after report from Forensic Lab. There is further recital in the police report that site plan was prepared and photographs also obtained. Statements of prosecution witnesses also recorded under Section 161 of Cr.P.C. and statement of prosecutrix also recorded under Section 164 Cr.P.C. before learned Chief Judicial Magistrate Lahaul and Spiti at Kullu. There is further recital in the police report that medical examination of the petitioner/accused is still to be conducted and clothes of the prosecutrix which have been concealed by the petitioner/accused worn by the prosecutrix w.e.f. 25.11.2015 to 29.11.2015 are to be taken into possession. There is further recital in the police report that if the petitioner/accused is released on anticipatory bail at this stage then investigation of the case will be adversely affected. Prayer for rejection of anticipatory bail sought. 4. Court heard learned Advocate appearing on behalf of petitioner and learned Additional Advocate General appearing on behalf of non-petitioner and Court also perused the entire record carefully. 5. Following points arise for determination in present bail application. (1) Whether anticipatory bail application filed by the petitioner/accused under Section 438 Cr.PC is liable to be accepted as mentioned in memorandum of grounds of bail application? (2) Final Order. Findings upon Point No.1 with reasons. 6. Submission of learned Advocate appearing on behalf of petitioner that petitioner/accused is innocent and he did not commit any criminal offence of sexual assault as alleged by the investigating agency cannot be decided at this stage. Same facts will be decided when case will be disposed of on merits after giving due opportunity to both parties to lead evidence in support of their case. 7. Submission of learned Advocate appearing on behalf of petitioner that any condition imposed by the Court will be binding upon the petitioner/accused and on this ground bail application filed by the petitioner/accused be allowed is rejected being devoid of any force for the reason hereinafter mentioned. 7. Submission of learned Advocate appearing on behalf of petitioner that any condition imposed by the Court will be binding upon the petitioner/accused and on this ground bail application filed by the petitioner/accused be allowed is 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) A reasonable possibility of the presence of accused not being secured at the trial or investigation (v) Reasonable apprehension of witnesses being tampered with (vi) 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. 8. Allegations against the petitioner/accused are very heinous and grave in nature relating to sexual assault. Investigation is at the initial stage. It was held in case reported in AIR 1996 SC 922 titled Bodhisattwa Gautam vs. Subhra Chakraborty that rape is not only a crime against the person of a victim but it is a crime against the entire society. It was held that offence of rape destroys the entire psychology of a girl and pushes the girl into deep emotional crisis. It was held that offence of rape is a crime against the basic human rights and is also violative of most cherished fundamental rights of the victim contained in Article 21 of the Constitution of India. In view of the fact that investigation is at the initial stage and in view of the fact that allegations against the petitioner/accused are very heinous and grave in nature that petitioner/accused forcibly committed rape upon the prosecutrix w.e.f. 25.11.2015 to 29.11.2015 four-five times Court is of the opinion that if anticipatory bail is granted to the petitioner/accused at this stage then investigation will be adversely affected. Court is of the opinion that if anticipatory bail is granted to the petitioner/accused at this stage then interest of the State and general public will also be adversely affected. 9. Court is of the opinion that if anticipatory bail is granted to the petitioner/accused at this stage then interest of the State and general public will also be adversely affected. 9. Submission of learned Additional Advocate General that if anticipatory bail is granted to the petitioner/accused at this stage then petitioner will induce and threaten the prosecution witnesses and on this ground bail application be declined is accepted for the reason hereinafter mentioned. There is apprehension in the mind of the Court that if anticipatory bail is granted to the petitioner/accused at this stage then petitioner/accused will induce and threaten the prosecution witnesses. Court is of the opinion that in view of the gravity of allegations against the petitioner/accused relating to sexual assault criminal offence it is not expedient in the ends of justice to grant anticipatory bail to the petitioner/accused. Point No.1 is answered in negative. Point No.2 (Final order). 10. In view of my findings on point No.1 above anticipatory bail application filed by petitioner under Section 438 Cr.PC is rejected. Observations made hereinabove will not effect merits of the case in any manner and will be strictly confined for disposal of the anticipatory bail application filed under Section 438 Cr.PC. Cr.MP(M) No.1876/2015 is disposed of.