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2020 DIGILAW 868 (HP)

Bobby Kumar v. State of Himachal Pradesh

2020-12-01

CHANDER BHUSAN BAROWALIA

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JUDGMENT Chander Bhusan Barowalia, J. - The matters are taken up through video conference. 2. The present bail applications have been maintained by the petitioners under Section 439 of the Code of Criminal Procedure seeking their release, in case FIR No. 328 of 2020, dated 24.10.2020, under Sections 341, 506, 509, 354-C and 376 IPC, Sections 4 & 14 of POCSO Act and Sections 67 and 67A of IT Act, registered in Police Station Sadar Chamba, District Chamba, H.P. 3. As per the averments made in the petitions, the petitioners are innocent and have been falsely implicated in the present case. They are permanent residents 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 them behind the bars for an unlimited period, so they be released on bail. 4. Police report stands filed. As per the prosecution story, on 24.10.2020 the prosecutrix (name withheld) made a complaint to the police, wherein she stated that she is a student of 10+2 and 16 years old. She has stated that one Bobby Kumar (one of the petitioners herein) started harassing her over telephone and on 05.08.2020, at about 10:00 a.m., when she was going to school for admission, he telephoned her and asked to come to a guest house, but she refused. Petitioner Bobby Kumar intercepted her while she was going to Khajjiar and forcible took her to jungle, committed forcible sexual intercourse and also threatened her. On 23.10.2020 he again threatened her over telephone, so she divulged the incident to her mother and when her mother asked the him about the incident, he started threatening her too. Upon the complaint, so made by the prosecutrix, police registered a case under the apt sections and the investigation ensued. The prosecutrix was medically examined and the relevant record qua the date of birth of the prosecutrix was also procured. Statement of the prosecutrix was recorded under Section 164 Cr.P.C. Police prepared the spot map and effected relevant recoveries. Statements of the witnesses were also recorded by the police. Petitioner Bobby Kumar was arrested and medically examined. Akshay Kumar (another petitioner herein) was also arrested and medically examined. Statement of the prosecutrix was recorded under Section 164 Cr.P.C. Police prepared the spot map and effected relevant recoveries. Statements of the witnesses were also recorded by the police. Petitioner Bobby Kumar was arrested and medically examined. Akshay Kumar (another petitioner herein) was also arrested and medically examined. During the course of interrogation, petitioner Akshay Kumar disclosed that on 05.08.2020, he, secretly videographed the prosecutrix and petitioner Bobby Kumar having sexual intercourse and later he circulated the same video. Thereafter, the police made the relevant recoveries and the report from RFSL, Dharamshala, is awaited. As per the police, challan will be presented in the learned Trial Court soon. Lastly, it is prayed that the bail applications of the petitioners be dismissed, as the petitioners were found involved in a serious offence. The petitioners, at this stage, in case enlarged on bail, may tamper with the prosecution evidence and may also flee from justice, so the bail applications may be dismissed. 5. I have heard the learned Counsel for the petitioners, learned Deputy Advocate General for the State and gone through the record, including the police reports, carefully. 6. The learned Counsel for the petitioners have argued that the petitioners have has been falsely implicated in the present case. They have further argued that the petitioners are permanent residents of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. They have argued that no fruitful purpose will be served by keeping the petitioners behind the bars for an unlimited period, especially when nothing remains to be recovered at their instance, investigation is complete, challan is likely to be presented in the learned Trial Court soon, the custody of the petitioners is not at all required by the police, so the bail applications may be allowed and the petitioners be enlarged on bail. Conversely, the learned Deputy Advocate General has argued that the petitioners have committed a serious offence. He has further argued that in case the petitioners are enlarged on bail, they may flee from justice or may tamper with the prosecution evidence, as the trial is yet to begin, so the bail applications of the petitioners be dismissed. 7. Conversely, the learned Deputy Advocate General has argued that the petitioners have committed a serious offence. He has further argued that in case the petitioners are enlarged on bail, they may flee from justice or may tamper with the prosecution evidence, as the trial is yet to begin, so the bail applications of the petitioners be dismissed. 7. In rebuttal the learned Counsel for the petitioners have argued that the petitioners are permanent residents of the place, thus neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, nothing is to be recovered at their instance, custody of the petitioners is not at all required by the police, as the investigation is complete and challan is likely to be presented in the learned Trial Court soon, so the applications be allowed and the petitioners be enlarged on bail. 8. At this stage, considering the age of the petitioners, i.e., petitioner Bobby Kumar is 18 years of age and petitioner Akshay Kumar is 21 years of age, the fact that recoveries have already been effected, considering the delay of approximately 2 months in loding the FIR, the manner in which the offence is alleged to have been committed by the petitioner, the fact that the petitioners are permanent residents of the place, so neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, the custody of the petitioners is not at all required by the police, as the investigation is complete, challan is likely to be presented in the learned Trial Court soon, the fact that the petitioners cannot be kept behind the bars for an unlimited period, the fact that the petitioners are ready and willing to abide by the terms and conditions of bail, in case granted, and also considering all the facets of the case and without discussing the same elaborately at this stage, this Court finds that the present is a fit case where the judicial discretion to admit the petitioners on bail is required to be exercised in their favour. Accordingly, the petitions are allowed and it is ordered that the petitioners, who have been arrested by the police in case FIR No. 328 of 2020, dated 24.10.2020, under Sections 341, 506, 509, 354-C and 376 IPC, Sections 4 & 14 of POCSO Act and Sections 67 and 67A of IT Act, registered in Police Station Sadar Chamba, District Chamba, H.P., shall be released on bail forthwith in this case, subject to their furnishing personal bond in the sum of 20,000/- (rupees twenty thousand) each with one surety each in the like amount to the satisfaction of the learned Trial Court. The bail is granted subject to the following conditions: (i) That the petitioners will appear before the learned Trial Court/Police/authorities as and when required. (ii) That the petitioners will not leave India without prior permission of the Court. (iii) That the petitioners 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. 9. In view of the above, the petitions are disposed of. Copy dasti.