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2018 DIGILAW 479 (HP)

Vipin Kumar v. State Of Himachal Pradesh

2018-03-27

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. 7 of 2017, dated 12.01.2017, under Sections 363, 120B read with Section 34 IPC, registered at Police Station Baijnath, District Kangra, 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 resident of the place and 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 12.01.2017 Shri Desh Raj (complainant) made a written complaint to the police, wherein he has averred that on 10.01.2017 his daughter (prosecutrix) eloped with the petitioner. As per the complainant, the petitioner managed to take away the prosecutrix with the help of his mother, Smt. Ganta Devi. On the basis of the complaint, so filed by the complainant, police registered a case against the petitioner and the investigation ensued. Statements of the witnesses were recorded. The petitioner was enlarged on bail in case No. 154 of 2016, dated 30.09.2016, registered under Sections 363, 376 read with Section 34 IPC and Section 4 of POCSO Act, but upon the persistent goading of Smt. Ganta Devi the petitioner took away the prosecutrix, thus Sections 120B and 34 IPC were added in the FIR. Police obtained the record qua date of birth of the prosecutrix, which is 30.10.2002, so Section 4 of POCSO Act was also added. The petitioner was arrested on 08.05.2017 and was medically examined. Statement of the prosecutrix was also recorded under Section 164 Cr.P.C. The petitioner is under judicial custody since 18.05.2017. As per the medical report, the possibility of sexual assault upon the prosecutrix has been ruled out. The challan stands presented in the Court. As per the police, the petitioner and his cousin brother have earlier been booked for taking away the prosecutrix. 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. As per the police, the petitioner and his cousin brother have earlier been booked for taking away the prosecutrix. 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 the petitioner is resident of the place and 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 has argued that the petitioner cannot be kept behind the bars for an unlimited period. He has further argued that the petitioner is resident of the place and 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 record, including the photographs, letters and other material, which has come on record, the age of the prosecutrix and also the age of the petitioner, this Court finds that the petitioner is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, as he is resident of the place, so the petitioner cannot be kept behind the bars for an unlimited period. Therefore, 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. 7 of 2017, dated 12.01.2017, under Sections 363, 120B read with Section 34 IPC, registered at Police Station Baijnath, District Kangra, H.P., he shall be released on bail forthwith in this case, subject to his furnishing personal bond in the sum of ''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.