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2018 DIGILAW 400 (HP)

Balbir Singh @ Aman v. State Of Himachal Pradesh

2018-03-19

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. 300 of 2017, dated 23.11.2017, under Sections 363, 376 IPC and Section 4 of POCSO Act, registered at Police Station Sadar Hamirpur, District Hamirpur, 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 23.11.2017 the complainant, Smt. Reeta Kumari, made a written complaint to the police, wherein it was averred that her daughter (prosecutrix) , aged approximately 17 years, is doing training in fashion designing from Hamirpur. On 13.11.2017 the prosecutrix went from home to Hamirpur alongwith one Arkishta. On the same day the prosecutrix stayed in her room at Hamirpur alongwith her friends. On 21.11.2017, the complainant received a telephone call informing her that the prosecutrix is not coming to college. The complainant apprehended that the petitioner, who is resident of New Indira Colony, Manimajara, Chandigarh, took the prosecutrix. On the basis of the complaint, so made by the complainant, a case was registered and the investigation ensued. The mobile location of the prosecutrix was found at Hasanpur, District Palval, Haryana. The petitioner was arrested from New Indira Colony, Manimajara, Chandigarh. On 28.11.2017, the prosecutrix was medically examined and the doctor opined that she has been sexually assaulted. Statement of the prosecutrix was also recorded under Section 164 Cr.P.C. The petitioner was also medically examined. The petitioner is in judicial custody after his arrest. As per the police, the challan stands presented in the Court. The petitioner is very clever person and in case he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice, as he is resident of different State. Lastly, the prosecution has prayed that the bail application may be dismissed. 4. I have heard the learned Counsel for the petitioner, learned Additional Advocate General for the State and gone through the record, including the police report, carefully. 5. Lastly, the prosecution has prayed that the bail application may be dismissed. 4. I have heard the learned Counsel for the petitioner, learned Additional Advocate General for the State and gone through the record, including the police report, carefully. 5. The learned counsel for the petitioner has argued that the petitioner is innocent and he is 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 him behind the bars for an unlimited period. Conversely, the learned Additional Advocate General has argued that taking into consideration seriousness of the offence, the application of the petitioner may be dismissed. 6. In rebuttal the learned counsel for the petitioner have argued that the petitioner cannot be kept 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 enlarged on bail. 7. At this stage taking into considering the statements of the witnesses, which have come on record, including the statement of the prosecutrix, police record, age of the prosecutrix and overall aspect of the case, including the fact that the petitioner is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, 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. Accordingly, the petition is allowed and it is ordered that the petitioner, who has been arrested by the police, in connection with FIR No. 300 of 2017, dated 23.11.2017, under Sections 363, 376 IPC and Section 4 of POCSO Act, registered at Police Station Sadar Hamirpur, District Hamirpur, H.P., he shall be released on bail forthwith in this case, subject to his furnishing personal bond in the sum of Rs. 50, 000/- (rupees fifty 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. 50, 000/- (rupees fifty 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. 8. In view of the above, the petition is disposed of. Copy dasti.