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2019 DIGILAW 1721 (HP)

Sukh Dev v. State of Himachal Pradesh

2019-11-15

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. 29 of 2018, dated 16.02.2018, under Sections 363, 366, 376(2) IPC and Section 6 of POCSO Act, registered in Police Station Sarkaghat, District Mandi, 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. 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 16.02.2018 father of the prosecutrix (name withheld) made a written complaint to the police alleging that on 13.02.2018, at about 03:00 p.m., when he was not present in his home, accused persons, i.e., Sukh Ram (petitioner herein), Geeta Devi, Shambhu Ram, Anju Devi and Chaudhary Ram, took his minor daughter (prosecutrix). Later on, the complainant came to know that the accused persons, including the petitioner, forcibly took the prosecutrix with them. Despite search, the prosecutrix could not be traced. When the complainant party went to bring the prosecutrix back the accused persons did not allow them to meet her and the prosecutrix started shouting. Upon the complaint, so made by the complainant, police registered a case and the investigation ensued. Police recorded the statements of the witnesses and obtained the records qua the date of birth of the prosecutrix. The prosecutrix, at the time of commission of the offence, was found to be 15 years, 7 months and 16 days old. On 14.09.2019 the prosecutrix was traced in Bajaura Kullu, so she was brought back and was medically examined. During the course of further investigation it was unearthed that the prosecutrix and petitioner were to be married, but as the prosecutrix was minor, the father of the prosecutrix refused for marriage. The petitioner took the prosecutrix and started residing with her as husband and wife. Police arrested the petitioner and upon his identification prepared the spot map. Police also collected the scientific samples and sent the same to RFSL, Mandi, for examination. The petitioner took the prosecutrix and started residing with her as husband and wife. Police arrested the petitioner and upon his identification prepared the spot map. Police also collected the scientific samples and sent the same to RFSL, Mandi, for examination. As per the police, on 30.10.2019 challan was presented in the learned Trial Court and upon the receipt of the RFSL report, supplementary challan will also be presented. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner was found involved in a serious crime. There is possibility that in case at this stage if he 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 report, 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 the place 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, as the investigation is complete and the custody of the petitioner is not at all required by the police. The petitioner is ready and willing to abide by the terms and conditions of bail, in case granted. He has further argued that keeping in view the overall aspects of the case, the inter se relationship of the prosecutrix and the petitioner, the petition may be allowed and the petitioner be enlarged on bail. Conversely, the learned Additional Advocate General has argued that the petitioner has committed 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 further argued that petitioner could jump over the bail, in case granted. He has prayed that the bail application of the petitioner be dismissed. 6. He has further argued that petitioner could jump over the bail, in case granted. 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 investigation is complete and the custody of the petitioner is not at all required by the police, so the application be allowed and the petitioner be enlarged on bail. 7. At this stage, considering the manner in which the offence is alleged to have been committed, the inter se relationship of the petitioner and the prosecutrix, the fact that the petitioner is permanent resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, he is ready and willing to abide by the terms and conditions of bail, if granted, the age of the petitioner and that of the prosecutrix, the fact that the petitioner cannot be kept behind the bars for an unlimited period, especially when investigation is complete and custody of the petitioner is not at all required by the police and also considering the overall facts, which have come on record, and without discussing the same at this stage, this Courts 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. 29 of 2018, dated 16.02.2018, under Sections 363, 366, 376(2) IPC and Section 6 of POCSO Act, registered in Police Station Sarkaghat, District Mandi, H.P., shall be released on bail forthwith in this case, subject to his furnishing personal bond in the sum of Rs.25,000/- (rupees twenty five 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.