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2020 DIGILAW 840 (HP)

Uday Ram @ Karan v. State of Himachal Pradesh

2020-11-13

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.55 of 2020, dated 29.7.2020, under Sections 363, 366-A of the Indian Penal Code and Section 12 of the Protection of Children from Sexual Offences Act, 2012, registered at Police Station Jubbal, District Shimla, Himachal Pradesh 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 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. The prosecution story, as emanates from the records, is that on 29.7.2020, complainant alongwith the prosecutrix (name withheld) made a complaint to the police that for the last six months, she is residing in the Hateshwari Mata Temple Trust in the dhara (kiosk). On 28.7.2020, complainant alongwith her son and his wife went to the orchard and her daughters were at home. In the afternoon, her elder daughter went to the market alongwith her another daughter, to bring medicine for her children. In the evening, on the date of incident, one, Nirmla, neighbour of the complainant, told her that the prosecutrix went to Sawara bazaar, without any intimation, and she did not return. The complainant suspected that the prosecutrix eloped with the petitioner. Upon the complaint, so made by the complainant, police registered a case, under the apt sections and the investigation ensued. During the course of investigation, the elder sister of the prosecutrix telephonically informed the police that the prosecutrix and the petitioner are at Solan. Police found the prosecutrix and the petitioner in the house of the elder sister of the prosecutrix. The police recorded the statements of the witnesses and also completed all the codal formalities. Police also made the relevant recoveries and the prosecutrix was medically examined. As per the medical opinion recent sexual intercourse was not ruled out. Scientific samples were taken by the police and sent for forensic examination. The police recorded the statements of the witnesses and also completed all the codal formalities. Police also made the relevant recoveries and the prosecutrix was medically examined. As per the medical opinion recent sexual intercourse was not ruled out. Scientific samples were taken by the police and sent for forensic examination. Statement of the prosecutrix, under Section 164 of the Code of Criminal Procedure was also recorded, wherein she stated that on 28.7.2020, she alongwith her three boys and one girl went to Solan, without any prior permission of the complainant. She has further stated that the petitioner was with them and in the interregnum, the complainant made a complaint to the police. As per the police, on 26.9.2020, challan stands presented in the learned Trial Court and it has come in the investigation on 28.7.2020, the petitioner enticed the prosecutrix and took her with him without any permission of her parents. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner was involved in a serious offence, and there is possibility that in case at this stage he is enlarged on bail, he may flee from justice and tamper with the prosecution witnesses. 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 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 custody of the petitioner is not at all required by the police. On the other hand, learned Additional Advocate General has argued that the petitioner has committed a serious crime and in case, he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice, as he is permanent resident of the place, so it is prayed that the bail application of the petitioner may be dismissed. 6. 6. In rebuttal, the learned counsel for the petitioner has argued that the petitioner is behind the bars for an unlimited period, the custody of the petitioner is not at all required by police, nothing remains to be recovered at his instance, the petitioner is not in a position to tamper with the prosecution evidence nor in a position to flee from justice, so the present bail application may be allowed and the petitioner may be enlarged on bail. 7. At this stage, taking into consideration, the statement of the prosecutrix, under Section 164 of the Code of Criminal Procedure, considering the age of the petitioner, the manner in which the offence is alleged to have been committed by the petitioner, the fact that the petitioner is neither in a position to flee from justice nor in a position to tamper with the prosecution evidence, the petitioner cannot be kept behind the bars for an unlimited period and also considering the facts that the investigation is complete and also considering the overall facts, which emerge from the records, and without discussing the same elaborately at this stage, the present is a fit case where the judicial discretion to admit the petitioner on bail is required to be exercised in his favour. Under these circumstances, it is ordered that the petitioner be released on bail, in this case, FIR No.55 of 2020, dated 29.7.2020, under Sections 363, 366-A of the Indian Penal Code and Section 12 of the Protection of Children from Sexual Offences Act, 2012, registered at Police Station Jubbal, District Shimla, on his furnishing personal bond to the tune of Rs. 50,000/- (rupees fifty thousand only) 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 join investigation of case as and when called for by the Investigating Officer in accordance with law and will appear before the Court. 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.