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2018 DIGILAW 1001 (HP)

Rakesh Kumar v. State of Himachal Pradesh

2018-05-28

CHANDER BHUSAN BAROWALIA

body2018
JUDGMENT : Chander Bhusan Barowalia, J. The present bail applications have been maintained by the petitioners under Section 439 of the Code of Criminal Procedure seeking their release in case FIR No. 75 of 2018, dated 25.04.2018, under Sections 363, 366A and 120 B of Indian Penal Code, 1860 (IPC), registered at Police Station Karsog, District Mandi, H.P. 2. As per the averments made in the petitions, the petitioners are innocent and have been falsely implicated in the present case. They are neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. No fruitful purpose will be served by keeping them behind the bars for an unlimited period, so they be released on bail. 3. Police report stands filed. As per the prosecution story, on 25.04.2018 Shri Hari Singh (complainant) gave a complaint to the police, wherein it has been alleged that on 24.04.2018 his elder daughter (prosecutrix), who studies in 10+1, did not return from the school. On inquiry, it came to their knowledge that the prosecutrix left the school at 01:00 p.m. The complainant received a phone call from mobile No. 98053-87033 on his cell No. 86298-25132 and he was informed by the caller that he took the prosecutrix. On the basis of the complaint, so filed by the complainant, a case was registered and investigation ensued. During the course of investigation it was unearthed that one Vinod Kumar alongwith his accomplice Rakesh Kumar (petitioners herein) took the prosecutrix in vehicle No. HP86- 1231 and petitioner Vinod Kumar wanted to marry the prosecutrix. Police obtained the date of birth record qua the prosecutrix. On 26.04.2018 petitioner, Rakesh Kumar, made a telephonic call from mobile No. 7018389419 to his family, so according to location of cell phone and investigation made by the police, it was found that on 25.04.2018 the petitioners and the prosecutrix came in vehicle No. HP86-1231 to Hotel Akaash Hotel, Nalagarh. Petitioner Vinod Kumar and the prosecutrix stayed in room No. 6 of the hotel, whereas petitioner Rakesh Kumar slept in the vehicle. On the subsequent day, the petitioners and the prosecutrix left the hotel. Police visited the hotel and took into possession the bed sheet of the bed of room No. 6. On 29.04.2018 the prosecutrix was recovered from Industrial Area, Chandigarh. The prosecutrix refused to get herself medically examined. On the subsequent day, the petitioners and the prosecutrix left the hotel. Police visited the hotel and took into possession the bed sheet of the bed of room No. 6. On 29.04.2018 the prosecutrix was recovered from Industrial Area, Chandigarh. The prosecutrix refused to get herself medically examined. On 29.04.2018 petitioner Vinod Kumar was arrested and medically examined. Upon the identification of petitioner Vinod Kumar spot maps were prepared and vehicle No. HP86-1231 was taken into possession. On 07.05.2018 petitioner Rakesh Kumar was arrested. Scientific samples were sent to RFSL. As per the prosecution, the challan is ready and is under consideration. Lastly, it is prayed that the bail applications of the petitioners be dismissed as the petitioners were found involved in a serious offence and in case they are released on bail they may tamper with the prosecution evidence and may also flee from justice. 4. I have heard the learned Counsel for the petitioners, learned Additional Advocate General for the State and gone through the record, including the police report, carefully. 5. The learned counsel for the petitioners have argued that the petitioners are innocent. They are neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. He has further argued that no fruitful purpose will be served by keeping them behind the bars for an unlimited period. The petitioners are ready and willing to abide by the terms and conditions of bail, in case so granted, which shall be imposed by this Court. Therefore, the applications be allowed and the petitioners be released on bail. The learned counsel for the petitioners has placed reliance on a judgment of this Court rendered in Suneel Kumar vs. State of Himachal Pradesh, 2013 (3) Shimla Law Cases 1574, wherein bail was granted under Section 439 to the accused persons, who believed to have roots in society, as there was no possibility of the accused fleeing away from justice or jumping over the bail. Conversely, the learned Additional Advocate General has argued that the petitioners were found involved in a serious offence and in case they are released on bail, they may tamper with the prosecution evidence and may also flee from justice. He has argued that taking into consideration seriousness of the offence, the applications of the petitioners may be dismissed. 6. Conversely, the learned Additional Advocate General has argued that the petitioners were found involved in a serious offence and in case they are released on bail, they may tamper with the prosecution evidence and may also flee from justice. He has argued that taking into consideration seriousness of the offence, the applications of the petitioners may be dismissed. 6. In rebuttal the learned Counsel for the petitioners have argued that the petitioners cannot be kept behind the bars for an unlimited period. He has further argued that the petitioners are neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so they may be enlarged on bail. 7. At this stage, after carefully going through the records and the rival contentions of the parties, this Court finds that the petitioners are residents of the place, neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, there is no medical examination and opinion qua the prosecutrix and also considering the age of the petitioners, the petitioners cannot be kept behind the bars for an unlimited period and the ends of justice will only be met in case they are enlarged on bail. This Court considering the overall aspects of the case as also the law, as citied by the learned counsel for the petitioners, finds that the present is a fit case where the judicial discretion to admit the petitioners on bail is required to be exercised in their favour. Accordingly, the petitions are allowed and it is ordered that the petitioners, who have been arrested by the police, in case FIR No. 75 of 2018, dated 25.04.2018, under Sections 363, 366A and 120 B of Indian Penal Code, 1860 (IPC), registered at Police Station Karsog, District Mandi, H.P., they shall be released on bail forthwith in this case, subject to their furnishing personal bond in the sum of Rs. 50,000/- (rupees fifty thousand) each with one surety each in the like amount to the satisfaction of learned Trial Court. The bail is granted subject to the following conditions: (i) That the petitioners will appear before the learned Trial Court as and when required. (ii) That the petitioners will not leave India without prior permission of the Court. 50,000/- (rupees fifty thousand) each with one surety each in the like amount to the satisfaction of learned Trial Court. The bail is granted subject to the following conditions: (i) That the petitioners will appear before the learned Trial Court as and when required. (ii) That the petitioners will not leave India without prior permission of the Court. (iii) That the petitioners will 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/her from disclosing such facts to the Investigating Officer or Court. 8. In view of the above, the petitions are disposed of.