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2018 DIGILAW 1814 (HP)

Jagdish Kumar v. State of Himachal Pradesh

2018-10-10

VIVEK SINGH THAKUR

body2018
JUDGMENT : VIVEK SINGH THAKUR, J. 1. Petitioner has preferred present petition under Section 438 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') for grant of anticipatory bail in case FIR No. 160 of 2015, dated 1st December, 2015, registered under Sections 363, 376, 120-B of the Indian Penal Code (hereinafter referred to as 'IPC') read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POSCO), at Police Station Karsog, District Mandi, Himachal Pradesh. 2. The prosecution case in brief is that one Rachhpal Singh along with his brother Vipan Kumar came to Churag on 25.11.2015 and with the help of the petitioner, had contacted the victim and on 27.11.2015, has facilitated Rachhpal to commit the offence by allowing him to stay in the house of her sister at Dhaun Kufri. Thereafter, the victim was taken away by Rachhpal and his brother from Sunni to Chamba, from where the victim was recovered after registration of F.I.R., on the basis of complaint filed by brother of the victim. At the time of recovery of victim from Chamba, Rachhpal and his brother Vipan, both were found residing in the house where the victim was kept. 3. For completion of facts, it is apt to record that at the initial stage, F.I.R. was registered under Sections 363 and 120-B of the IPC only and at that time, the petitioner was enlarged on bail. However, during the course of investigation on 29.03.2018, it was found that offence under Section 376 of IPC read with Section 4 of the POSCO Act has also been committed. Thereafter, the main accused Rachhpal and his brother were arrested. Whereas, the petitioner Jagdish Kumar had approached the Court of Sessions for seeking anticipatory bail under Section 438 Cr.P.C. The said application was dismissed by the learned Special Judge, Mandi, District Mandi, H.P. on 29.09.2018, only on the ground that his custodial interrogation was imperative for fair investigation of the case at that stage. Therefore, on appreciating this Court, in present petition was enlarged on anticipatory bail. 4. Therefore, on appreciating this Court, in present petition was enlarged on anticipatory bail. 4. The co-accused Vipan Kumar, who happened to be the brother of main accused Rachhpal and was accompanying his brother Rachhpal to Churag at the time of alleged commission of offence and thereafter, who was with Rachhpal at the time of taking away the petitioner to Chamba, had preferred a bail application in August, 2018 after his arrest, which was allowed by the learned Special Judge on 29.09.2018 on the ground that investigation in the case was almost complete at that time and custody of Vipan Kumar was not required by the police for the purpose of custodial interrogation and further that Vipan Kumar was not the main accused and thus, no purpose would have served by keeping him in judicial custody as a major of punishment. 5. The co-accused Vipan Kumar, who happened to be brother of main accused Rachhpal, accompanying main accused throughout the commission of offence, has been released on bail. Further, petitioner Jagdish Kumar has been implicated mainly on the ground of conspiracy in commission of offence by facilitating the main accused in contacting the victim and by allowing them to stay in her sister's house and the conspiracy is yet to be established by the prosecution before the Trial Court, which is to be considered on the basis of evidence produced before the said court. 6. After grant of anticipatory bail on 03.10.2018, petitioner has joined the investigation and has cooperated with the investigating agency. As per the investigating officer present in the Court, the places involved in the commission of offence, related the petitioner, are yet to be identified and therefore, grant of anticipatory bail has been opposed on this ground. 7. In my opinion, the identification of the spots can be easily completed with cooperation of the petitioner by calling him for the said purpose by the investigating officer at any time and for that purpose, custodial interrogation is not necessary. 7. In my opinion, the identification of the spots can be easily completed with cooperation of the petitioner by calling him for the said purpose by the investigating officer at any time and for that purpose, custodial interrogation is not necessary. Keeping in view the facts and circumstances of the case, the petitioners is entitled for enlarged on bail, subject to following conditions:- (i) That the petitioner shall make himself available to the police or any other investigating agency or Court in the present case as and when required; (ii) That the petitioner shall 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 from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses; (iii) That he shall not obstruct the smooth progress of the investigation/trial; (iv) That the petitioner shall not commit the offence similar to the offence to which he is accused or suspected; (v) That the petitioner shall not misuse his liberty in any manner; (vi) That the petitioner shall not jump over the bail. 8. It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice. 9. In case the petitioner violates any condition imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail in accordance with law. 10. Observations made in this petition hereinbefore shall not affect the merits of the case in any manner and will strictly confine for the disposal of this bail application filed under Section 438 Cr.P.C. 11. Petition stands disposed of in aforesaid terms.