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2020 DIGILAW 889 (HP)

Om Prakash v. State of Himachal Pradesh

2020-12-14

CHANDER BHUSAN BAROWALIA

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JUDGMENT Chander Bhusan Barowalia, J. - The matter is taken up through video conference. 2. 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. 30 of 2020, dated 17.08.2020, under Section 376AB IPC and Section 6 of the POCSO Act, registered in Women Police Station Baddi, District Solan, H.P. 3. As per the averments made in the petition, the petitioner is innocent and has been falsely implicated in the present case. He is 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. 4. Police report stands filed. As per the prosecution story, on 17.08.2020, complainant, who is mother of the prosecutrix (names withheld), alongwith Smt. Anita Sharma, Project Co-ordinater Child Line, Solan, made a complaint to the police, wherein she alleged that she, alongwith her husband and two daughters, resides in a hut near Hotel Vimal. The complainant has further alleged that her elder daughter is eight years old and younger is two years old. Complainant used to work in a company and usually returns home near 09:00 p.m.. She has further stated that her husband (petitioner herein) is an alky and her elder daughter (prosecutrix/victim) divulged that for the last three days the petitioner is galling her. The prosecutrix has further divulged to the complainant that the petitioner used to insert his genital organ in her mouth. Upon the complaint, so made by the complainant, police registered a case and the investigation ensued. Statements of the prosecutrix and that of the complainant were recorded under Section 161 Cr.P.C. The prosecutrix was medically examined and the medical officer opined that there is no evidence of sexual intercourse and injury on the person of the prosecutrix. The petitioner was arrested and medically examined. Statement of the prosecutrix was recorded under Section 164 Cr.P.C. Police visited the spot, prepared the spot map, recorded the statements of the witnesses and clicked photographs. Police also made the apt recoveries. As per the police, after completion of investigation, challan stands presented in the learned Trial Court. Forensic analysis report rules out the possibility of sexual intercourse. Statement of the prosecutrix was recorded under Section 164 Cr.P.C. Police visited the spot, prepared the spot map, recorded the statements of the witnesses and clicked photographs. Police also made the apt recoveries. As per the police, after completion of investigation, challan stands presented in the learned Trial Court. Forensic analysis report rules out the possibility of sexual intercourse. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner was found involved in a serious offence, there is anger in the society against the petitioner and there is possibility that in case at this stage he is enlarged on bail, he may flee from justice or tamper with the prosecution witnesses. 5. I have heard the learned Counsel for the petitioner, learned Deputy Advocate General for the State and gone through the record, including the police report, carefully. 6. 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, especially when investigation is complete, challan stands presented in the learned Trial Court and custody of the petitioner is not at all required by the police, so the bail application may be allowed and the petitioner be enlarged on bail. Conversely, the learned Deputy Advocate General has argued that the petitioner was found involved in a serious offence. He has further argued that in case the petitioner is enlarged on bail, at this stage, he may flee from justice, as he is resident of Uttar Pradesh or tamper with the prosecution evidence. He has prayed that the bail application of the petitioner be dismissed. 7. In rebuttal the learned Counsel for the petitioner has argued that the petitioner is behind the bars for the last more than three and half months and cannot be kept behind the bars for an unlimited period, especially when investigation is complete, challan stands presented in the learned Trial Court and the fact that 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. 8. 8. At this stage, considering the facts that the investigation in the case is complete, challan stands presented in the learned Trial Court, custody of the petitioner is no at all required by the police, also considering the relationship of the petitioner with the prosecutrix, the fact that the petitioner is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, the fact that the petitioner cannot be kept behind the bars for an unlimited period, especially when investigation in the matter is completed, nothing remains to be recovered at the instance of the petitioner, scientific evidence does not suggest possibility of sexual intercourse with the prosecutrix, the fact that the petitioner is ready and willing to abide by the terms and conditions of bail, in case granted, considering the overall material, which has come on record, and without discussing the same at this stage, 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. 30 of 2020, dated 17.08.2020, under Section 376AB IPC and Section 6 of the POCSO Act, registered in Women Police Station Baddi, District Solan, H.P., shall be released on bail forthwith in this case, subject to his furnishing personal bond in the sum of Rs.50,000/- (rupees fifty 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. (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. (iv) That the petitioner will not visit the residence of the complainant and the victim, meet and talk with the complainant and the victim and threaten them, in any manner, whatsoever, and in case he does so or even tries to do so, the bail of the petitioner will be liable to be immediately cancelled without reference to this Court and the effect of the bail granted to him by this Court will be neutralized. The above condition No. (iv) is imposed keeping in view of the relationship of the petitioner and the victim, i.e., father and daughter, respectively. 9. In view of the above, the petition is disposed of. Copy dasti.