Amit Chaudhary vs State Of Himachal Pradesh

Anoop Chitkara, J

A boy aged 24 years, having indulged in sexual intercourse with the victim aged 14 years, has come up before this Court under Section 439 of the

Code of Criminal Procedure, 1973 (CrPC), seeking regular bail.

The Petitioner straightaway filed the bail petition before High Court, which is permissible given the decision of a three Judges Bench of HP High

Court, in Mohan Lal v Prem Chand, AIR 1980 HP 36, (Para 9 & 15), wherein the Full bench holds that a person can directly apply for an anticipatory

bail or regular bail to the High Court without first invoking the jurisdiction of the Sessions Judge.

In Para 7 of the bail application, the petitioner declares having no criminal history. The status report also does not mention any criminal past of the

accused.

Briefly, the allegations against the petitioner are that:

a. On 28.12.2020, on noticing missing of two minor girls ‘S’ aged 14 years and ‘Y’ aged 16 years, from Child Care Institute Mashobra at

Tutikandi, the Officer-in-charge (Superintendent) immediately informed the police of Police Station West (Boileauganj), Shimla.

b. From the Child Care Institute, the victims took lift in a car and the car driver dropped them at the old Bus Stand, Shimla. Then they took a phone of

someone and called one Lovely, who was friend of ‘Y’ and asked him to take them from Shimla. Lovely refused to do so, but he sent them

Rs.500/- on the Google pay account of the person, to which they called. The person who has Google pay account on the said mobile gave Rs.500/-to

them.

c. Thereafter both the victims reached old bus stand, Shimla and inquired about the bus to Una from a Lady named Kamla. Since it was night time, no

bus was available to Una and the victims spent night of 28.12.2020 in the house of Kamla. In the morning of 29.10.2020, the victim paid Rs.300/- to

Kamla and left her house at around 9-10 a.m. Later they took bus of Bilaspur.

d. While the victims were travelling in the bus, Ankush (petitioner herein) started talking with ‘Y’ and later gave her his mobile number and

asked her to meet him in Bilaspur. Thereafter, both the minor victims took another bus from Brahampukhar to Bilaspur and while travelling in the said

bus, another boy named Amit met them. They went to Laxmi Narayan Temple in Bilaspur. Later in the day, Amit arranged for a hotel room for the

girls and himself. All of them spent night in the same room where Amit rapped ‘S’ aged 14 years.

e. On 30.12.2020, they checked out from the Hotel and ‘Y’ called Ankush from the mobile of Amit and he come to Bilaspur. Thereafter, they

all went for stroll on the bank of river, where Ankush molest ‘Y’. Later in the date, Amit left and Ankush arranged for a room in the same hotel

for the night of 30.12.2020. Thereafter, he left the hotel telling the victims that he is going out to get some food, but did not return. ‘Y’ tried to

call him through someone’s phone, but he did not pick up.

f. On 31.12.2020 ‘Y’ again called him in the morning, when Ankush said that he will not come back. Both the victims asked for Rs.500/- from

Hotel staff to pay for the rent of the room. Then both of them took a bus from Bilaspur to Chandigarh. On reaching Chandigarh ‘S’ called one

Vicky and asked him to come to Chandigarh to which he asked the victims to come to Ambala. On reaching Ambala, the victims informed Vicky, who

came there to pick up them with another boy named Tonny. They pick up them on two different motorcycles. Vicky picked up ‘S’ and Tonny

‘Y’. They took them to the room and rapped them.

g. On 1.1.2021, Vicky and Tonny left the girls in a bus stand for Chandigarh. On reaching Chandigarh ‘S’ called Vicky, but he did not pick up

the call. Then both the girls left for Baddi to the friend Kanchan. They called Kanchan, but she did not pick up and then the victim returned to

Chandigarh. ‘S’ called Vicky from Chandigarh and told him that they do not have any money. Then Vicky sent ‘S’ Rs.500/- on the

Google Pay account of the person through which she is calling. Thereafter, in the night of 1.1.2021, both the victims took a bus from Chandigarh to

Dharampur and then reached at about 1.30 a.m., at the native village of ‘Y’ at, District Solan, H.P.

h. On 2.1.2021, the I.O. took the victims for their medical examination at IGMC, Shimla, where the doctors conducted their medico legal examination.

After medical examination, the doctors collected swabs from their privates and handed over to the investigator, who in turn sent the same to the

Laboratory for examination. However, the report of the same are still awaited.

Mr. Peeyush Verma, learned Counsel for the petitioner contends that the petitioner is a first offender and incarceration before the proof of guilt

would cause grave injustice to the petitioner and family. He further submits that although the victims are prima facie minors, but their conduct in

visiting different places and not informed any co-passengers or anybody-else, make out a case for bail.

To the contrary, Mr. Bhupender Thakur, learned Deputy Advocate General contends that offence is heinous, accused is a risk to law-abiding

people, and bail is likely to send a wrong message to the society. He further submits that as per date of birth certificates, the victims were born on

4.6.2004 and 9.5.2006, as such they both are much below 18 years of age when she could have consented.

The victims seem to be not comfortable in the Child Care Institute and as such ran away. It was not their volunteer act of running, but probably, the

atmosphere for such situation, which led them to take such a drastic step, putting themselves to great risk. At the time when the victims abandoned

from the Child Care Institute, being students, they had no money at all to reach their homes. They needed money and get Rs.500/- from one Lovely,

who appears to be very concerned person. After getting money, they proceeded towards the home of ‘Y. Finding the young girls travelling alone,

one of the accused appeared to have started eying on them and engaged them in talks. Thus the arguments of Mr. Peeyush Verma, learned counsel

that the conduct of the victims would entitle the petitioner to get bail, is too dangerous. Given that instead of showing concern like the earlier boy, the

petitioner took both the victims to the Hotel. The purpose of taking them to the hotel itself would show the intention to have coitus with them. In the

hotel room option were there to the petitioner to do coitus with either of two girls, but he chose the younger one. This conduct, prima facie, points that

the petitioner is pervert. There is no question for grant of bail to a person, who, to this Court, prima facie, appears to be a pervert.

Another reason, which points out towards the conduct of the accused is that even if the girls did not object to visiting hotel or made no resistance,

but the fact is that they were minors.

Given above, in the facts and circumstances peculiar to this case coupled with the fact that the age of the victim is 14 years, at this stage, the

petitioner fails to make out a case for bail. The petition is dismissed accordingly.

Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.

I express my gratitude to Ms. Apoorva Maheshwari, final year student of DES SHRI NAVEL MAL FIRODIA LAW COLLEGE, Pune, who is

doing internship with me for excellent perspective.