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2020 DIGILAW 385 (HP)

Vikas Kumar v. State Of Himachal Pradesh

2020-07-02

AJAY MOHAN GOEL

body2020
JUDGMENT Ajay Mohan Goel, J. (Oral) - By way of this petition, a prayer has been made for release of the petitioner on bail in case F.I.R. No.58/2019, dated 02.05.2019, registered against him at Police Station Parwanoo, District Solan, H.P., under Sections 363, 366A, 376 of the Indian Penal Code (hereinafter referred to 'IPC for short) and Section 4 of the Protection of Children from Sexual Offences (hereinafter referred to 'POCSO' for short) Act, 2012. 2. Learned counsel for the petitioner has argued that the F.I.R. was lodged on 02.05.2019. At the time when the F.I.R. was lodged, the age of the alleged victim was 16 years and 9 months, whereas the age of the accused, as per the police, was 21 years, which the petitioner disputes, because as per him, he was a minor on the said date, and in this regard the petitioner has already filed an application under Section 9 of the Juvenile Justice (Care and Protection of Children), Act, 2015, which is pending adjudication. Learned counsel has further argued that the petitioner is innocent and he has been falsely implicated in this case because of enmity between the family of the victim and his family, as there is a relationship between the two families. He further submits that the petitioner is in custody since 22.06.2019. No recovery etc. is to be effected from the petitioner and no purpose is going to be served by detaining him in custody. He further submits that whether or not the petitioner is guilty of the offences, alleged against him, is a matter of trial and in case he is found to be guilty, then consequences will ensue, but simply because the petitioner is alleged to have committed the offences, mentioned in the F.I.R., the same is no ground to unnecessarily keep in him custody. Accordingly, he prays that the present petition be allowed and the petitioner be ordered to be released on bail, especially keeping in view the young age of the petitioner. 3. Opposing the bail petition, learned Additional Advocate General has argued that taking in consideration the gravity of the offences which have been alleged against the petitioner, this petition deserves dismissal. Accordingly, he prays that the present petition be allowed and the petitioner be ordered to be released on bail, especially keeping in view the young age of the petitioner. 3. Opposing the bail petition, learned Additional Advocate General has argued that taking in consideration the gravity of the offences which have been alleged against the petitioner, this petition deserves dismissal. He submits that the petitioner is stated to be closely related to the victim and in the event of the petitioner being released on bail, there is each and every possibility that the petitioner may try to win over and influence the witnesses and he may also hamper the course of trial. He further submits that the petitioner happens to be permanent resident of Village Rampur, Post Office Marwada, District Chhapra, Bihar and there is each and every possibility that in the event of petitioner being released on bail, he will jump the bail and leave the State of H.P. Learned Additional Advocate General further submits that even otherwise, the conduct of the petitioner, of on one hand of filing this petition under Section 439 of Cr.P.C. and simultaneously pursuing the remedy under the Juvenile Justice Act, does not entitles him to seek the relief which is being sought under this petition. 4. Controverting the submissions so made by learned Additional Advocate General, learned counsel for the petitioner submits that he has instructions to state that the petitioner volunteers to stay in the State of H.P., till the trial is over. He further submits that as of now, till the application, which has been filed by the petitioner under the Juvenile Justice Act, is not decided in his favour, he has a right to maintain this petition under Section 439 of Cr.P.C. He further submits that the apprehension expressed by the State that the petitioner shall try to influence and win over the witnesses, is completely ill-founded, because in the event of bail being granted to the petitioner, he shall be bound to comply with the conditions which may be imposed upon him and the State is always at liberty to approach the Court for cancellation of the bail, in case any of the conditions is infringed by the petitioner. 5. 5. I have heard learned counsel for the parties and have gone through the documents appended with the petition as well as status report, which has been filed by the State. 6. The allegations as are borne out from the status report against the petitioner purportedly are to the effect that on 10.04.2019, the victim who was about sixteen and half years old, went missing from her home in Tehsil Kasauli, District Solan, H.P., which lead to the father of the victim to file a complaint against the present petitioner for kidnapping and abducting the victim on 10.04.2019. The victim was traced by the police alongwith accused at Village Kamre Ashram Dwarkapuri, Post Office Kamre, Police Station Ratu, District Ranchi, Jharkhand on 19.06.2019. Thereafter, the victim was handed over to her parents and the petitioner is in custody. As per the police, the petitioner and the victim had eloped from Village Taksal, Tehsil Kasauli, District Solan, H.P. and had been residing as husband and wife in Willage Kamre Ashram Dwarkapuri, Post Office Kamre, Police Station Ratu, District Ranchi, Jharkhand . The accused was arrested on 22.06.2019. 7. Be that as it may, the fact of the matter is that the present petitioner is in custody since 22.06.2019. His having approaching the appropriate Forum under the Juvenile Justice Act by way of filing application under Section 9 of the Juvenile Justice Act is also a matter of record. While this Court is not oblivious to the fact that the age of the victim at the time of the alleged occurrence of the incident is stated to be sixteen and half years old, yet it is the own case of the police that the accused was only 21 years old and the victim as well as the petitioner had eloped from State of H.P. to Jharkhand, where they were allegedly living as husband and wife. 8. Taking into consideration the fact that the petitioner is in custody since 22.06.2019, in my considered view, keeping in mind the peculiar factual matrix of this case, detaining him further in custody is not going to serve any purpose. On the contrary, it will have the negative effect and impact upon the personality of the petitioner, who happens to be a young boy. 9. On the contrary, it will have the negative effect and impact upon the personality of the petitioner, who happens to be a young boy. 9. It goes without saying that whether or not, the petitioner is guilty is a matter or trial and in case he is found to be guilty of the offences, as alleged against him, law will take its own course. However, simply because the allegations against the petitioner are grievous in nature, this itself in isolation is not a cause or reason to continue to keep the petitioner in custody as petitioner is not having any previous criminal history. As far as the apprehension expressed by the State, that in the event of bail being granted to the petitioner, he may jump the bail and may leave the territory of the State of H.P, in my considered view, this apprehension of the State has been taken care of by voluntary statement of the learned counsel for the petitioner that the petitioner shall not leave the territory of the State of H.P. till the trial is over, which statement is taken on record. 10. As far as the remaining apprehensions of the State that the petitioner may try to win over the witnesses etc., in the event of any such discretion being exercised by the petitioner are concerned, the State shall always be at liberty to approach this Court for cancellation of the bail. 11. Accordingly, this petition is allowed, by ordering the release of the petitioner on bail in case F.I.R. No.58/2019, dated 02.05.2019, registered against him at Police Station Parwanoo, District Solan, H.P., under Sections 363, 366A, 376 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012, on his furnishing personal bond in the sum of Rs.50,000/- with one surety in the like amount to the satisfaction of the learned Trial Court, subject to the following conditions:- i) Petitioner shall attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; ii) He shall not tamper with the prosecution evidence; iii) He shall not make any inducement, threat or promise to any person acquainted with the facts of the case. 12. 12. It is clarified that the findings which have been returned by this Court while deciding this petition are only for the purpose of adjudication of the present bail application and learned trial Court shall not be influenced by any of the findings so returned by this Court in the adjudication of this petition during the trial of the case. It is further clarified that in case the petitioner does not complies with the conditions which have been imposed upon him while granting the present bail, the State shall be at liberty to approach this Court for the cancellation of the bail. The petition stands disposed of in the above terms.