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2025 DIGILAW 440 (HP)

Surender v. State of Himachal Pradesh

2025-03-22

VIRENDER SINGH

body2025
JUDGMENT : Virender Singh, J. Applicant-Surender, apprehending his arrest, has filed the present bail application, under Section 482 of the Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as ‘BNSS’), for release him on bail, in the event of his arrest, in case FIR No. 184 of 2022, dated 19 th October, 2022, registered under Sections 363, 366, 366A, 376, 120B of the Indian Penal Code (hereinafter referred to as ‘IPC’), with Police Station Rohru, District Shimla. 2. According to the applicant, he is innocent person and has falsely been implicated in the present case. 3. As per the applicant, the case has been lodged against him with a view to harass him and the same is outcome of pre-planned conspiracy. The applicant has further pleaded that he is in his sixties and most of the time remained ill from the age-related complications. According to the applicant, from the last 2 years, he is confined to bed. 4. According to the applicant, investigation in the present case is complete and nothing is to be recovered from him or at his instance. Custodial interrogation is also stated to be not required by the Police. 5. Apart from this, it has also been pleaded that the main accused and other co-accused have already been released on bail, by this Court, vide order dated 09.07.2024, passed in Cr.MP(M) No.1235 of 2024. 6. The applicant has given certain undertaking, for which, he is ready to abide by, in case, any direction is issued to the police/Investigating Officer, under Section 482 of the BNSS. 7. The applicant had also tried his luck, by moving similar application, before the Court of learned Additional Sessions Judge, Fast Track Special Court (Rape/POCSO), Shimla, which was dismissed on 6.5.2024. Thereafter, he had filed Cr.MP (M) No.2476 of 2024, which was dismissed as withdrawn on 3.12.2024. 8. Along with the application, the applicant has annexed the copy of order dated 03.12.2024, passed by this Court in Cr.MP (M) No.2476 of 2024, and copy of order dated 6.5.2024, passed by the Court of learned Additional Sessions Judge, Fast Track Special Court (Rape/POCSO), Shimla. 9. 8. Along with the application, the applicant has annexed the copy of order dated 03.12.2024, passed by this Court in Cr.MP (M) No.2476 of 2024, and copy of order dated 6.5.2024, passed by the Court of learned Additional Sessions Judge, Fast Track Special Court (Rape/POCSO), Shimla. 9. Thereafter, the applicant has moved Cr.MP No.612 of 2025, for placing on record copy of order dated 6.5.2024, passed by the Court of learned Additional Sessions Judge, Fast Track Special Court (Rape/POCSO), Shimla, whereby the application, moved by the applicant, was dismissed, copy of order dated 25.4.2023, passed by this Court, in Cr.MP(M) No.1002 of 2023, whereby, the application, filed under Section 483 Cr.PC, has been dismissed as withdrawn, copy of order dated 1.6.2023, passed by this Court, in Cr.MP(M) No.1269 of 2023, by virtue of which, the bail application was dismissed as withdrawn, copy of order dated 3.10.2024, passed by this Court in Cr.MP No.2210 of 2024, whereby, the bail application was also dismissed as withdrawn, copy of order dated 9.7.2024, passed by this Court in Cr.MP(M) Nos.1235 & 1513 of 2024, whereby, the co-accused of the applicant have been ordered to be released on bail, and copy of zimini orders of different dates, passed in the trial, pending before the Court of learned Additional Sessions Judge, Fast Track Special Court (Rape/POCSO), Shimla. 10. When put to notice, the police filed the status report that on 19.12.2022, the complainant has submitted a complaint before the Police disclosing therein that his daughter (child victim) is studying in 10+1 class in Government Senior Secondary School, (ABC). On 18.10.2022, the daughter of the complainant had gone to her school, but, she did not return back. Her whereabouts were enquired from the niece of the complainant, upon which, it was apprised by her that the child victim had not gone to school. Thereafter, efforts were made to trace in the house of the relatives, but the could not find her out. Thereafter, he has expressed his suspicion that some unknown person has enticed away his daughter. 11 On the basis of the above facts, the police has registered the FIR, in question and the police machinery swung into motion. 12. During investigation, on 27.10.2022, the record, pertaining to date of birth of the child victim, was obtained from School, in which, she was studying. Copy of matriculation certificate of the child victim was also obtained. 11 On the basis of the above facts, the police has registered the FIR, in question and the police machinery swung into motion. 12. During investigation, on 27.10.2022, the record, pertaining to date of birth of the child victim, was obtained from School, in which, she was studying. Copy of matriculation certificate of the child victim was also obtained. As per the record, the date of birth of the child victim was found to be 16.06.2006. 13. On 06.11.2022, when the child victim was searched, she was found in the resident of accused Ashish at Khanpurkala, District Sonepat, Haryana. She was identified by her cousin brother and this fact was documented there. At the instance of the child victim, the the spot map was prepared and photography of the spot was done. Statement of child victim, under Section 161 Cr.PC, was recorded, in which, she has disclosed that she was enticed away by her friend, resident of village X, aged about 17 years on 18.10.2022, on the pretext of visiting Chandigarh. From the place between Ambala and Panipat, her friend left the child victim in the Company of Surender (applicant), Babli and Ashish. Thereafter, Surender and Babli forcibly got married the child victim with Ashish on 21.10.2022. 14. From the room, where, Ashish had allegedly raped her, physical evidence i.e. bed sheet was taken into possession. 15. On 7.11.2022, the child victim was handed over to her mother on 8.11.2022. Her medico-legal examination was conducted at Civil Hospital XXX. Thereafter, MLC was obtained, physical evidence, so collected and preserved by the doctors, was taken into possession. On the basis of the report of MLC, Sections 366, 376, 120-B IPC were added in this case. 16. On 9.11.2022, the child victim was produced before the Court of learned Additional Chief Judicial Magistrate, Rohru, where, her statement, under Section 164 Cr.PC, was recorded. 17. On 24.11.2022, accused ‘X’ Child in ‘Conflict with Law’ was associated and was arrested and was found to be minor, as such, accused CCL aged 17 years was associated and was arrested. Thereafter, she was produced before the learned Principal Magistrate, JJB. Subsequently, she was released on bail and her custody was handed over to her mother. 18. It is further case of the Police that on 19.4.2022, accused Babli and accused Surender (applicant) filed application, under Section 438 Cr.PC, before the learned Additional Sessions Judge, POCSO. Thereafter, she was produced before the learned Principal Magistrate, JJB. Subsequently, she was released on bail and her custody was handed over to her mother. 18. It is further case of the Police that on 19.4.2022, accused Babli and accused Surender (applicant) filed application, under Section 438 Cr.PC, before the learned Additional Sessions Judge, POCSO. Both the said accused had not joined the investigation. Thereafter, the status report was filed, upon which, the bail application of the accused Babli was dismissed on 20.04.2022, whereas, bail application of accused surender was dismissed on 6.5.2023. Section 17 of the POCSO Act was also added in this case. 19. On 19.5.2023, accused Babli appeared before the Police, along with the order, passed by this Court, in which, the police was directed not to arrest her before the next date of hearing. 20. When the status report was filed on 26.4.2023, on that day, accused Babli had not appeared before the Court, as such, her application was rejected. 21. On 25.5.2023, accused Surender (applicant) appeared before the Police, along with order, passed by this Court, in his favour. 22. As per the order, so passed, the police was directed not to arrest the applicant till the next date of hearing. However, on 1.6.2023, when the status report was filed, the application was dismissed by the Court on 1.6.2023. 23. Accused Ashish was arrested on 6.12.2023. Accused Babli was also arrested in this case. Thereafter, the police has filed the final report, under Section 173(2) CrPC, against Ashish and Babli, which is also stated to be pending, whereas, the CCL is stated to be pending before the Court of learned Principal Magistrate, JJB. 24. It is the further case of the Police that despite best efforts, made by the police to arrest applicant Surender, he is still absconding. Consequently, the proceedings, under Section 82 Cr.PC., were initiated against him on 14.11.2024 and the said proceedings are stated to be pending. 25. On the basis of the above facts, it has been apprehended that the applicant is resident of the adjoining State Haryana and till date, he has not been arrested and all the time, he has cheated the Police. In case, the relief, as prayed, is granted to him, in that event, he may not be available for the trial and may also coerce the witnesses. In case, the relief, as prayed, is granted to him, in that event, he may not be available for the trial and may also coerce the witnesses. As such, a prayer has been made to dismiss the application. 26. As per the documents, produced by the accused, he had tried his luck by moving an application, under Section 438 Cr.PC, before the Court of learned trial Court, however, the same was dismissed on 6.5.2023 and thereafter, he has approached this Court for the relief of pre-arrest bail on four occasions. 27. Although, principle of res judicata is not applicable to the applicant, but, this does not mean that the applicant is entitled for the relief merely on the ground that he is able to evade his arrest till date. 28. The applicant has been named as accused in a very heinous offence, for which, there are specific allegations, according to which, the CCL enticed away the child victim from her native place on the pretext of visiting Chandigarh and thereafter, she had left the child victim in the company of Surender Kumar (applicant), Babli and Ashish. 29. Thereafter, accused Surender (applicant) and Babli allegedly got solemnized the marriage of the child victim with accused Ashish. The date of birth of the child victim is found to be 16.06.2006 and at the time of the incident, admittedly, she was 16 years of age. Merely, the investigation, against all the three, including the CCL, has been completed and charge sheet has been filed, does not ipso facto entitled the applicant for relief, as claimed in the application. It seems that when the proceedings, under Section 482 Cr.PC, have been initiated on 14.11.2024, then, the present application has been filed. 30. Learned counsel appearing for the applicant could not make out a case in favour of the applicant. 31. Even otherwise, there is no change in the circumstance, after dismissal of the application, by this Court on 3.10.2024. 32. Considering the fact that right from the date of registration of the FIR, the Police is not able to arrest the applicant, this Court is of the view that the apprehension, which has been expressed by the Police qua the fact that in case, the relief, as claimed in the application, is granted to him, he may not be available for trial, cannot be said to be unfounded, at this stage. 33. 33. Moreover, keeping in view the specific role, as alleged against the applicant, according to which, he and accused Babli got solemnized the marriage of accused Ashish with the child victim, that in case, the relief is granted to him, it will give wrong signal to the society. 34. Considering all these facts, this Court is of the view that the applicant has failed to make out a case for bail. As such, the application is dismissed. 35. Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail application.