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Himachal Pradesh High Court · body

2019 DIGILAW 1280 (HP)

Chain Singh v. State Of Himachal Pradesh

2019-09-02

CHANDER BHUSAN BAROWALIA

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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. 38 of 2019, dated 11.07.2019, under Sections 363, 366, 376, 120B IPC and Section 4 of POCSO Act, registered in Police Station Nankhari, District Shimla, 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 permanent resident of Himachal Pradesh and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. No fruitful purpose will be served by keeping him behind the bars for an unlimited period, so he be released on bail. 3. Police report stands filed. As per the prosecution story, on 11.06.2019 father of the prosecutrix (complainant) made a complaint to the police and alleged that on 11.07.2019 the prosecutrix (name withheld) did not come home, so he tried to contract her on her phone, but her phone was switched off. Later on, he came to know that the prosecutrix, while returning home with one Smt. Pushpa, told her that she wants to meet her friend, so she went there. The complainant raised suspicion that someone kidnapped the prosecutrix, who is minor. On the basis of the complaint, so filed by the complainant, police registered a case and the investigation ensued. During extensive search operation initiated by the police, on 13.07.2019 the prosecutrix was found in the house of one Deepak Thakur @ Deepu @ Chain Singh (petitioner herein). The statement of the prosecutrix was recorded under Section 161 Cr.P.C. As per the prosecutrix, on 11.07.2019 while she was returning with her bhabhi, she told her that she intends to meet her friend, Vaishali, so they parted and when she was walking alone, vehicle, having registration No. HP12J-3099, came from Bithal side and the petitioner made her to forcibly board the vehicle. She has further stated that there was one more person in the vehicle, i.e., Surya Dev @ Anku. The petitioner broke her SIM card and also threatened her, so she sat in the vehicle without any protest. The petitioner stopped the vehicle at Barotiwala and Surya Dev @ Anku went somewhere. The petitioner and the prosecutrix remained seated in the vehicle for whole night. The petitioner broke her SIM card and also threatened her, so she sat in the vehicle without any protest. The petitioner stopped the vehicle at Barotiwala and Surya Dev @ Anku went somewhere. The petitioner and the prosecutrix remained seated in the vehicle for whole night. On the subsequent day the petitioner took her to his house at Dasora Majra where the petitioner forcibly sexually molested the prosecutrix. During the course of investigation, police procured the records qua the date of birth of the prosecutrix and she was found to be born on 01.12.2003, so at the time of offence she was 15 years, 7 months and 13 days of age. The prosecutrix was medically examined and scientific samples were preserved for forensic analysis. On 14.07.2019 the petitioner was arrested. As per the police, coaccused Surya Dev @ Anku has been enlarged on bail by the learned Trial Court. Forensic analysis report is awaited. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner was involved in a heinous crime. There is possibility that in case at this stage the petitioner is enlarged on bail, he may flee from justice. The petitioner can also tamper with the prosecution evidence, so his application 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 reports, carefully. 5. The learned Counsel for the petitioner has argued that the petitioner has been falsely implicated in the present case. He has further argued that the petitioner is permanent resident of District Solan and 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 the petitioner behind the bars for an unlimited period. He has argued that keeping in view the material, which has come on record, and also the age of the petitioner, the bail application be allowed. Conversely, the learned Additional Advocate General has argued that the petitioner was found involved in a heinous offence, so at this stage, in case he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice. He has prayed that the bail application of the petitioner be dismissed. 6. Conversely, the learned Additional Advocate General has argued that the petitioner was found involved in a heinous offence, so at this stage, in case he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice. He has prayed that the bail application of the petitioner 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, especially when the investigation is complete, so the application be allowed and the petitioner be enlarged on bail. 7. At this stage, considering the age of the petitioner, the manner in which the offence is alleged to have occurred, the fact that petitioner wanted to marry the prosecutrix, the fact that there is love affair between the petitioner and the prosecutrix, the fact that the petitioner is permanent resident of District Solan and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, the petitioner is ready and willing to abide by the conditions of bail, if so granted, the fact that the investigation is complete, considering the overall facts, which have come on record, and without discussing the same at this stage and also the fact that the petitioner cannot be kept behind the bars for an unlimited period, so 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 case FIR No. 38 of 2019, dated 11.07.2019, under Sections 363, 366, 376, 120B IPC and Section 4 of POCSO Act, registered in Police Station Nankhari, District Shimla, H.P., shall be released on bail forthwith in this case, subject to his furnishing personal bond in the sum of Rs.20,000/- (rupees twenty thousand) with one surety in the like amount to the satisfaction of the learned Trial Court. The bail is granted subject to the following conditions: (i) That the petitioner will appear before the learned Trial Court/Police/authorities as and when required. (ii) That the petitioner will not leave India without prior permission of the Court. The bail is granted subject to the following conditions: (i) That the petitioner will appear before the learned Trial Court/Police/authorities 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. 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. 38 of 2019, dated 11.07.2019, under Sections 363, 366, 376, 120B IPC and Section 4 of POCSO Act, registered in Police Station Nankhari, District Shimla, 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 permanent resident of Himachal Pradesh and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. No fruitful purpose will be served by keeping him behind the bars for an unlimited period, so he be released on bail. 3. Police report stands filed. As per the prosecution story, on 11.06.2019 father of the prosecutrix (complainant) made a complaint to the police and alleged that on 11.07.2019 the prosecutrix (name withheld) did not come home, so he tried to contract her on her phone, but her phone was switched off. Later on, he came to know that the prosecutrix, while returning home with one Smt. Pushpa, told her that she wants to meet her friend, so she went there. The complainant raised suspicion that someone kidnapped the prosecutrix, who is minor. On the basis of the complaint, so filed by the complainant, police registered a case and the investigation ensued. During extensive search operation initiated by the police, on 13.07.2019 the prosecutrix was found in the house of one Deepak Thakur @ Deepu @ Chain Singh (petitioner herein). The complainant raised suspicion that someone kidnapped the prosecutrix, who is minor. On the basis of the complaint, so filed by the complainant, police registered a case and the investigation ensued. During extensive search operation initiated by the police, on 13.07.2019 the prosecutrix was found in the house of one Deepak Thakur @ Deepu @ Chain Singh (petitioner herein). The statement of the prosecutrix was recorded under Section 161 Cr.P.C. As per the prosecutrix, on 11.07.2019 while she was returning with her bhabhi, she told her that she intends to meet her friend, Vaishali, so they parted and when she was walking alone, vehicle, having registration No. HP12J-3099, came from Bithal side and the petitioner made her to forcibly board the vehicle. She has further stated that there was one more person in the vehicle, i.e., Surya Dev @ Anku. The petitioner broke her SIM card and also threatened her, so she sat in the vehicle without any protest. The petitioner stopped the vehicle at Barotiwala and Surya Dev @ Anku went somewhere. The petitioner and the prosecutrix remained seated in the vehicle for whole night. On the subsequent day the petitioner took her to his house at Dasora Majra where the petitioner forcibly sexually molested the prosecutrix. During the course of investigation, police procured the records qua the date of birth of the prosecutrix and she was found to be born on 01.12.2003, so at the time of offence she was 15 years, 7 months and 13 days of age. The prosecutrix was medically examined and scientific samples were preserved for forensic analysis. On 14.07.2019 the petitioner was arrested. As per the police, coaccused Surya Dev @ Anku has been enlarged on bail by the learned Trial Court. Forensic analysis report is awaited. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner was involved in a heinous crime. There is possibility that in case at this stage the petitioner is enlarged on bail, he may flee from justice. The petitioner can also tamper with the prosecution evidence, so his application 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 reports, carefully. 5. The learned Counsel for the petitioner has argued that the petitioner has been falsely implicated in the present case. 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 reports, carefully. 5. The learned Counsel for the petitioner has argued that the petitioner has been falsely implicated in the present case. He has further argued that the petitioner is permanent resident of District Solan and 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 the petitioner behind the bars for an unlimited period. He has argued that keeping in view the material, which has come on record, and also the age of the petitioner, the bail application be allowed. Conversely, the learned Additional Advocate General has argued that the petitioner was found involved in a heinous offence, so at this stage, in case he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice. He has prayed that the bail application of the petitioner 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, especially when the investigation is complete, so the application be allowed and the petitioner be enlarged on bail. 7. At this stage, considering the age of the petitioner, the manner in which the offence is alleged to have occurred, the fact that petitioner wanted to marry the prosecutrix, the fact that there is love affair between the petitioner and the prosecutrix, the fact that the petitioner is permanent resident of District Solan and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, the petitioner is ready and willing to abide by the conditions of bail, if so granted, the fact that the investigation is complete, considering the overall facts, which have come on record, and without discussing the same at this stage and also the fact that the petitioner cannot be kept behind the bars for an unlimited period, so 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 case FIR No. 38 of 2019, dated 11.07.2019, under Sections 363, 366, 376, 120B IPC and Section 4 of POCSO Act, registered in Police Station Nankhari, District Shimla, H.P., shall be released on bail forthwith in this case, subject to his furnishing personal bond in the sum of Rs.20,000/- (rupees twenty thousand) with one surety in the like amount to the satisfaction of the learned Trial Court. The bail is granted subject to the following conditions: (i) That the petitioner will appear before the learned Trial Court/Police/authorities 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.