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2017 DIGILAW 1136 (HP)

Deepak Sood v. State Of Himachal Pradesh

2017-10-04

AJAY MOHAN GOEL

body2017
JUDGMENT Ajay Mohan Goel, J. (Oral) - By way of this petition filed under section 439 of the Code of Criminal Procedure, 1973 Code (hereinafter referred to ''Cr.P.C.'' for short), the petitioner has prayed for grant of regular bail in FIR No. 60 of 2017, dated 23.04.2017, registered at Police Station Boileauganj (West), Shimla, under Sections 363, 366 and 376 of Indian Penal Code (hereinafter referred to ''IPC'' for short) and section 4 of the Protection of Children from Sexual Offences Act (hereinafter referred to as POCSO Act for short). According to the petitioner, an FIR i.e. FIR No. 89 of 2017 was registered against him at Police Station Sadar, Hamirpur at the instance of the present alleged child victim under Section 354-D of IPC and Section 6 of the POCSO Act. Pursuant to lodging of the said FIR, the petitioner was arrested by the Hamirpur police. In an application filed by him under section 439 of the Criminal Procedure Code, 1973 (hereinafter referred to as ''Cr.P.C.), petitioner was ordered to be released on bail by the learned Sessions Judge, Hamirpur vide order dated 26.04.2017 so passed in bail application No. 26 of 2017. Further as per the petitioner, after he was released in FIR No. 89 of 2017, he was again arrested on 27.04.2017 in connection with FIR No. 60 of 2017, which stands registered against him at Police Station Boileauganj (West) Shimla. It is in connection with said FIR, the petitioner has filed the present bail petition inter alia on the ground that a false FIR stands registered against him as the petitioner is not guilty of the offences alleged against him in the FIR. 2. I have heard learned Counsel for the petitioner as well as learned Deputy Advocate General. I have also perused the status report which stands filed by learned Deputy Advocate General. It is an undisputed fact that at the behest of the present prosecutrix, an FIR was registered against the present petitioner at Police Station Sadar, Hamirpur, under Section 354 D of IPC and Section 6 of the POCSO Act. This FIR was registered on 19.04.2017 inter alia on the ground that prosecutrix was allegedly telephonically informed by the petitioner on 19.04.2017, at around 3:00 p.m. that he was coming to Hamirpur from Chandigarh and that the prosecutrix should meet him near the Petrol Pump. This FIR was registered on 19.04.2017 inter alia on the ground that prosecutrix was allegedly telephonically informed by the petitioner on 19.04.2017, at around 3:00 p.m. that he was coming to Hamirpur from Chandigarh and that the prosecutrix should meet him near the Petrol Pump. As per the prosecutrix, she brought this fact in the notice of her mother, who told her to proceed and also instructed her that she (mother of the prosecutrix) would be coming behind in a vehicle. As per the prosecutrix, she stood alone on the road where petitioner came in his vehicle bearing registration No. HP 62B-1040 which was being driven by him. As soon as the vehicle reached near her, the petitioner forcibly caught hold of her and forced her to sit on the front seat of the vehicle which was resisted to by her. He took her in the vehicle for a distance of about km, where-after the vehicle of the mother of the prosecutrix overtook the vehicle of the accused. It was further mentioned in the FIR that the petitioner was studying in a school at Shimla and that the petitioner used to follow her after school hours which fact stood reported by the prosecutrix to her mother and as the petitioner did not desist from his acts, her mother got her admitted in a school at Hamirpur. It was on these facts that the FIR was registered. Beyond this, nothing more was mentioned in the said FIR. 3. It is also a matter of record that in a bail application so preferred by the present petitioner before the Court of learned Sessions Judge, Hamirpur, the petitioner was ordered to be released on bail vide order dated 26.04.2017. While releasing the petitioner on bail, it was held by the learned Sessions Judge, Hamirpur that there were variations in the statement of the prosecutrix so recorded under section 154 of Cr.P.C , 1973and the one recorded under section 164 of Cr.P.C., 1973 by the learned Judicial Magistrate 1st Class, Court No. 2, Hamirpur, which created doubts regarding the involvement of the accused. 4. Now, records demonstrate that after the registration of the FIR at Police Station, Hamirpur, another FIR was got registered by the prosecutrix against the petitioner, this time at Police station Boileauganj (West), Shimla, on 23.04.2017 under Section 363, 366 and 376 of IPC and Section 4 of POCSO Act. 4. Now, records demonstrate that after the registration of the FIR at Police Station, Hamirpur, another FIR was got registered by the prosecutrix against the petitioner, this time at Police station Boileauganj (West), Shimla, on 23.04.2017 under Section 363, 366 and 376 of IPC and Section 4 of POCSO Act. As per the contents of the FIR, report lodged by the prosecutrix was that she first time met the petitioner while on her way back from the school on 28th of March, 2016 while she was walking alone from the railway track when petitioner suddenly came out from his car and forced her to sit in the car. As per prosecutrix, accused took her from Totu to Nehara and there he physically molested her and threatened that he would kill her mother if she disclosed these facts to her mother. As per the prosecutrix, the petitioner took nude pictures of her. It is also mentioned in the FIR that her mother had also lodged a complaint against the petitioner in the office of Superintendent of Police, Shimla on 28.05.2016. As per the prosecutrix, when her mother went to Chandigarh in the month of July and while she (prosecutrix) was coming back from her school towards Longwood after appearing in an examination, petitioner was waiting for her inside his car. He told her to have a tour of Charabara. As per the prosecutrix, the petitioner took her to Charabara where he physically abused her. As per prosecutrix, on 05.09.2016, petitioner took her to Naldehra hills and gave serious threats that he will throw her from a hill top if she disclosed these incidents to her mother. According to the prosecutrix, the petitioner sexually abused her which acts of the petitioner led her towards depression. It was on these bases that FIR was lodged on the basis of which the petitioner stood arrested on 27.04.2017. 5. Be that as it may, one thing which is quite apparent from what has been discussed above is that in the first FIR which was lodged by the prosecutrix against the petitioner at Police Station Hamirpur, no allegations were leveled by the prosecutrix against the petitioner to the effect that he had sexually molested her. This fact has been narrated by the prosecutrix only in the second FIR which stands filed at Police Station Boileauganj (West), Shimla on 23.04.2017. This fact has been narrated by the prosecutrix only in the second FIR which stands filed at Police Station Boileauganj (West), Shimla on 23.04.2017. Now it has come in the FIR which was registered by the prosecutrix at Police Station Boileauganj (West) Shimla that a complaint stood filed against the petitioner by the mother of the prosecutrix. This Court had directed the learned Deputy Advocate General to produce the records of the case and a perusal of the record demonstrates that though a complaint was filed by the mother of the prosecutrix against the petitioner dated 28.05.2016, however, later on said complaint was not pressed by the mother of the prosecutrix, as is evident from her statement dated 24.07.2016, which is on record. From the above it appears to me that lodging of the second FIR was nothing but an afterthought and there seems to be merit in the contention of learned Counsel for the petitioner that the said FIR has been lodged against the petitioner just to harass him. In fact, a careful perusal of the record demonstrates that petitioner and the prosecutrix were probably acquainted with each other which did not go well with the mother of the prosecutrix, ultimately resulting in the lodging of two FIRs against the petitioner through prosecutrix, perhaps at the behest of the mother of the prosecutrix. Even otherwise, in my considered view, whether or not the petitioner is guilty of the offences which stand alleged against him in the FIR is a matter of trial. If the petitioner is guilty of the offences alleged against him, he will face the consequences. However, at this stage, learned Counsel for the petitioner has been able to make out a case for grant of bail in favour of the petitioner as prima facie lodging of the present FIR seems to be an act of afterthought. Petitioner otherwise also happens to be a permanent resident of Totu, Tehsil and District Shimla and his parents are also permanent residents of the said place and apparently, there is no chance of his absconding. Petitioner otherwise also happens to be a permanent resident of Totu, Tehsil and District Shimla and his parents are also permanent residents of the said place and apparently, there is no chance of his absconding. Accordingly, this petition is allowed and the petitioner is ordered to be released on bail in case FIR No. 60 of 2017, dated 23.04.2017, registered at Police Station Boileauganj (West), Shimla, under Sections 363, 366 and 376 of IPC and Section 4 of the POCSO Act, on his furnishing personal bond to the tune of _ 50,000/- with one surety in the like amount to the satisfaction of learned Chief Judicial Magistrate concerned, subject to the following conditions. i) Petitioner shall made himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; ii) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever. iii) He shall not make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and iv) He shall not leave the territory of India without prior permission of the Court. 6. It is clarified that findings which have been returned by this Court while deciding this petition are only for the purpose of adjudication of the present bail application and learned trial Court shall not be influenced by any of the findings so returned by this Court in the adjudication of this petition during the trial of the case. It is further clarified that in case the petitioner does not complies with the conditions which have been imposed upon him while granting the present bail, the State shall be at liberty to approach this Court for the cancellation of the bail. The petition stands disposed of in the above terms.