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Himachal Pradesh High Court · body

2018 DIGILAW 1061 (HP)

Prem Lal v. State of H. P.

2018-06-11

CHANDER BHUSAN BAROWALIA

body2018
JUDGMENT : Chander Bhusan Barowalia, J. The present bail application has been maintained by the petitioner, under Section 439 of the Code of Criminal Procedure seeking his release, in case FIR No. 31 of 2018, dated 1.4.2018, under Sections 376, 506 and 323 of the Indian Penal Code, registered at Police Station Arki, District Solan, H.P. 2. As per the averments made in the petition, the petitioner is innocent and has been falsely implicated in the present case. He is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so he may be released on bail. 3. Police report stands filed. As per the prosecution story, on 1.4.2018, a complaint, under Section 156 (3) of the Code of Criminal Procedure, was received in Police Station, Arki, District Solan, stating therein that the complainant is aged about 36 years and is a permanent resident of village Baggi and Post Office Baggi, Tehsil Arki, District Solan, and the marriage of the complainant was solemnized with one Shri Dharam Pal in the year 2004, but unfortunately husband of the complainant was expired in a motor vehicle accident in the year 2010. The husband of the complainant was a transporter and after his death, she carried on the transport business of her husband. In the year 2010-2011, petitioner was working in the office of “The Mangal Land Looser Co-operative Society”, the petitioner had been assuring the complainant that he will extend all help to the complainant in her transport business. In the year 2012, the petitioner started telling her that he intends to marry with her by saying that he is still bachelor. Initially, she did not take his talk seriously, but when he continuously made such offer and had been helping her, then she developed belief that petitioner is a good person and marrying with him may provide good life to her and her child, namely, Nikhil. In the year 2013, when the petitioner became sure that the complainant have blind faith in him and believed that he is a bachelor and will marry her, the petitioner tried to establish physical relation and have sexual intercourse with her. The complainant shown her unwillingness and requested the petitioner that physical relations should be established only after marriage, but the petitioner despite of unwillingness of the complainant, had sexual intercourse with her. The complainant shown her unwillingness and requested the petitioner that physical relations should be established only after marriage, but the petitioner despite of unwillingness of the complainant, had sexual intercourse with her. The consent obtained by the petitioner from the complainant for sexual intercourse was not given voluntarily by the complainant. At that time, the petitioner was already married and had no intention to marry with her. Under these circumstances, the complainant was not in a position to understand the nature and consequences of the consent of sexual intercourse. The petitioner had been taking money from the complainant and assured that whatever profit will be earned, the same will be paid to her and her child. In the month of October, 2014, the complainant went to the house of the petitioner at village Bhalag, where some villagers told that petitioner is already marked and has a wife and children, but when the complainant made inquiry from the petitioner and then he told that his marriage was dissolved by way of divorce. The petitioner has indulged in sexual intercourse with the complainant after obtaining her consent by playing fraud. Lastly, the prosecution has prayed that the bail application may be dismissed. 4. The learned counsel for the petitioner has argued that no fruitful purpose will be served by keeping the petitioner behind the bars for an unlimited period. He has further argued that the petitioner is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so he may be released on bail. On the other hand, the learned Additional Advocate General has argued that taking into consideration the way the offence was committed and the seriousness of the offence, the bail application of the petitioner may be dismissed. 5. Heard. After hearing the learned counsel appearing on behalf of the parties and analyzing the facts, which have come on record, including the business transactions and other material, including the age of the prosecutrix as well as age of the petitioner, this Court finds that the present is a fit case where the judicial discretion to admit the petitioner on bail is required to be exercised in his favour, as he is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. Accordingly, the petition is allowed and it is ordered that the petitioner, who has been arrested by the police of Police Station, Arki, District Solan, H.P., in connection with FIR No.31 of 2018, dated 1.4.2018, under Sections 376, 506 and 323 of the Indian Penal Code, registered at Police Station Arki, District Solan, H.P., be released on bail forthwith in this case, subject to his furnishing personal bond in the sum of Rs.25,000/- (rupees twenty five thousand) with one surety in the like amount to the satisfaction of learned Trial Court. The bail is granted subject to the following conditions: (i) That the petitioner will appear before the learned Trial Court as and when required. (ii) That the petitioner will not leave India without prior permission of the Court. (iii) That the petitioner 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. (iv) In case, the petitioner tries to tamper with the prosecution evidence, the bail order is liable to be recalled. 6. In view of the above, the petition is disposed of.