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2018 DIGILAW 2038 (HP)

Shiv Singh Alias Shiva v. State Of Himachal Pradesh

2018-11-20

VIVEK SINGH THAKUR

body2018
JUDGMENT Vivek Singh Thakur, J. - This petition under Section 439 of the Code of Criminal Procedure (hereinafter referred to as ''CrPC'') has been filed for enlarging the petitioner on bail, who is in judicial custody since 18th August, 2018, in case FIR No. 29 of 2018, dated 2nd August, 2018, under Sections 363 and 366 of the Indian Penal Code (hereinafter referred to as ''IPC'') and under Sections 8, 17 and 18 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ''POCSO Act), registered at Women Police Station, Baddi, District Solan, H.P. 2. Brief facts of the case are that a boy Sanjeev Kumar had allured a minor prosecutrix, aged about 15 years 6 months, to bring cash of Rs.2,00,000/ from her house and to accompany him to Kalka Railway Station and thereafter, at various places at Dehli and Jaipur. As per statement of prosecutrix, on 31st July, 2018, Sanjeev Kumar had asked her to bring money from her home and to accompany him and during the night of 31st July, 2018 and present petitioner Shiv Singh (Shiva) had helped the accused Sanjeev Kumar in kidnapping her to Kalka Railway Station from village Balyana, i.e. native place of the prosecutrix by taking both of them on his motor cycle. On the basis of call detail report of Sanjeev Kumar and present petitioner Shiva, statement of prosecutrix stands substantiated. During investigating, petitioner was produced in the Police Station on 18th August, 2018, by his father. Thereafter, on being identified by the prosecutrix, he was arrested and after remaining in police custody till 21st August, 2018, he has been sent in judicial custody. 3. No doubt, Section 29 of the POCSO Act, provides presumption as to commission or attempt to commit or abetment of offences under Sections 3,5, 7 and 9 of the POCSO Act against the accused, unless contrary is proved, however, at the same time, in commission of offence, role of petitioner/accused is also relevant for considering his plea of enlarging him on bail. There is no allegation of the prosecutrix against petitioner Shiv Kumar, except that he had taken her along with accused Sanjeev Kumar to the Kalka Railway Station on his motor cycle. Neither before that nor thereafter, any link of petitioner Shiv Kumar with Sanjeev Kumar has been pointed out in the record produced by the State. There is no allegation of the prosecutrix against petitioner Shiv Kumar, except that he had taken her along with accused Sanjeev Kumar to the Kalka Railway Station on his motor cycle. Neither before that nor thereafter, any link of petitioner Shiv Kumar with Sanjeev Kumar has been pointed out in the record produced by the State. The only reason for opposition of the bail is that the petitioner is a clever person and in case of his release on bail, he may threat the witnesses and there is public resentment against the offence committed by the accused in the area. 4. As is evident from the record and status report filed by the State, main accused is Sanjeev Kumar, who is absconding, whereas the role of Shiv Kumar is too limited and further he, himself, had submitted him to the Investigating Agency for interrogation and it is not a case that he was running away from the Investigating Agency, rather he along with his father had appeared in the Police Station on 18th August, 2018 on his own volition and had made himself available for further investigation resulting to his arrest. So far as the apprehension of threatening the witnesses is concerned, a condition can be imposed upon the petitioner and for violation whereof, he will have to face the cancellation of bail, for which Prosecution Agency, if occasion arises, can approach this Court at any time. 5. Keeping in view the role of the petitioner, allegations of the prosecutrix against him and his subsequent conduct, I find that it is a fit case for releasing him on bail. Accordingly, petitioner is ordered to be released on bail in case FIR No. 29 of 2018, dated 2nd August, 2018, under Sections 363/ 366 of IPC and under Sections 8, 17, 18 of the POCSO Act, registered at Women Police Station, Baddi, District Solan, H.P., if not required in any other case, subject to his furnishing personal bond in the sum of Rs. 50,000/ with one surety in the like amount, to the satisfaction of learned Trial Court. 6. 50,000/ with one surety in the like amount, to the satisfaction of learned Trial Court. 6. Petitioner shall further abide by the 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 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 and shall inform, in writing, regarding any change of address, if any, from the present place of residence, in advance, to Police Station Baddi, District Solan, H.P. 7. 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. 8. 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. 9. Learned trial Court is directed to ensure compliance of the directions issued by the High Court vide communication No. HHC/VIG/Misc.Instructions /93IV.7139 dated 18th March, 2013, as applicable. 10. Observations made in this petition hereinbefore shall not affect the merits of the case in any manner and is strictly confined for the disposal of this bail application filed under Section 439 CrPC. 11. Petition stands disposed of in aforesaid terms. Copy dasti.