Ankit Kumar vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner has approached this Court, invoking provisions of Section 439 of Code of Criminal Procedure (in short ‘Cr.PC’), seeking regular bail in case FIR No. 7 of 2022 dated 27.1.2022, registered under Section 376(2)(n) of Indian Penal Code (in short ‘IPC’) and Sections 4 and 6 of Protection of Children from Sexual Offences Act (in short ‘POCSO Act’) in Women Police Station Mandi, District Mandi H.P.

2 Status report stands filed and record was also made available.

Prosecution case, as per status report, is that on 27.1.2022 Smt. Sarla Supervisor Women and Child Development Department, Ms. Jyoti Sharma District Child Development Protection Unit Mandi, Smt. Savita Devi and Mr. Rohit team members of Child Helpline Mandi approached the Women Police Station along with victim with submissions that they received an information through Helpline Mobile 1098 that in village Pandhiyu child marriage had been solemnized and on verification on spot, it was found that victim, a minor child, had been subjected to an offence under POCSO Act who was having one month pregnancy. Upon this, statement of victim under Section 154 Cr.PC was recorded.

4 Victim, in her statement, disclosing her parental address, had stated that she had studied upto 10th class and her younger brother had studied upto 9th class and her father had suffered paralysis since last two years and her mother and brother were earning livelihood by doing labour work and his one aunt (Massi) was resident of Bhuntar and in November, 2021 on Diwali she visited her aunt’s house at Bhuntar, where she came in contact with petitioner, who was friend of son of her aunt and both of them were doing job of plumber. During her stay for 6/7 days, Ankit was also staying in house of her aunt. Both of them had fallen in love and one day they solemnized marriage at Shiv Mandir Bhuntar, but they did not disclose about that to anyone. After seven days, she came to Jukhala and petitioner Ankit also came along with her to seek permission of her family to marry her. Her family members had consented for that and agreed for solemnization of marriage on completion of 18 years by victim. Petitioner stayed about for one month in her parents’ house. On 2.1.2022, petitioner took her to his native place and on that day, he developed physical relations with her. Thereafter, he violated her number of times forcibly and in January 2022, she did pregnancy test at home which resulted positive. She had also stated that he was knowing about her age.

5 On the basis of aforesaid statement, FIR was registered and petitioner was arrested on 28.1.2022. Victim was medically examined. Homeguard Kuldeep Chand, deputed at Priest in Shiv Mandir located in Homeguard complex Bhuntar, was also inquired, but no record could be found about solemnization of marriage of petitioner and victim.

6 It has been stated in status report that during investigation, it has surfaced that on 2.1.2022 victim had left her house by saying that she was going to her aunt’s house at Sundernagar, but she went along with Ankit to his native place, where she became pregnant.

7 Victim has also been examined under Section 164 Cr.PC wherein she has reiterated the facts about meeting with petitioner during Diwali festival in 2021 in the house of her aunt and developing friendship with him and solemnization of marriage in Shiv Mandir with further clarification that at the time of solemnization of marriage, no one was present in the temple. She has also reiterated about visit of petitioner to her home to seek permission of her parents with further addition that petitioner had also called his parents to her parental house and they had agreed to solemnize the marriage on completion of 18 years by victim. In this statement, victim has further stated that she had asked Ankit to take her to his home, but he was refusing, however, when she compelled him then he took her to his home where they developed physical relations causing pregnancy to her. She has lastly stated that everything happened with her consent and at her instance and it was she who had come with petitioner despite refusal of petitioner to take her.

It is also noticeable that except her pregnancy test, during medical check-up, victim had refused to undergo any kind of physical examination by stating so in writing on Medico Legal Certificate.

Learned counsel for petitioner has submitted that petitioner has not violated the victim for spoiling her, but it is a case of love affair where petitioner really intended to marry victim and for that purpose, he visited the house of victim and parents of both sides had agreed to marry them on attaining age of 18 years by victim, but victim was not ready to wait till attaining the age of discretion by her and by telling her parents that she was going to her aunt’s house, in fact, she insisted and compelled the petitioner to take her to his home and petitioner, who was in love with victim, succumbed to the desire and emotional pressure of victim and took her to his home and as they had solemnized the marriage in temple, they started living as husband and wife. He has further submitted that it is not a case of false promise or broken love affair or cheating or spoiling the life of minor, but it is a case where petitioner and victim were really intending to live as married couple, but, for the age of victim, their act has invited registration of FIR under Section 376 IPC and provisions of POCSO Act. It has been further submitted that neither parents of girl nor girl have reported the matter to police, but for information by an unknown person, may be a rival of family of petitioner, on Child Helpline No. 1098, petitioner has been booked in the present case.

It has been further 6stated that victim is pregnant living in the house of petitioner and petitioner is only bread earner of family who is earning his livelihood by doing job of plumber and in case, petitioner is kept behind the bars then there would be nobody to take care of victim and therefore, further detention of petitioner, instead of safeguarding the interest of victim, shall be detrimental to the interest of victim.

11 Without commenting upon the merits of case, taking into consideration the aforesaid facts and circumstances of the case, and also taking note of the factors and parameters, required to be considered at the time of adjudication of bail application, as propounded in various pronouncements of the Courts, I am of the opinion that it would be in the interest of justice to enlarge the petitioner on bail at this stage.

13 Accordingly, petitioner is ordered to be enlarged on bail, at this stage, subject to furnishing personal bond in the sum of Rs.50,000/- with one surety in the like amount to the satisfaction of trial Court within a period of two weeks from today and also subject to any further conditions to be imposed by trial Court for ensuring his presence during trial including the following further conditions:-

(i) That the petitioner shall make himself available during the investigation as well as trial on each and every date as and when required;

(iii) That the petitioner shall 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 Court or to any police officer or tamper with the evidence. She shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iv) That the petitioner shall not obstruct the smooth progress of the investigation as well as trial;

(v) That the petitioner shall not jump over the bail and shall inform, in writing, regarding change of address, land line number and/or mobile number, if any, in advance, to concerned Police Station;

(vi) That the petitioner shall not commit the offence similar to the offence to which he is accused or suspected or the commission of which she is suspected;

(vii) In the event of repetition of commission of offence, bail granted in present case shall be liable to be cancelled on taking appropriate steps by prosecution/police;

(viii) That the petitioner shall not leave India without prior permission of Court;

(ix) That petitioner shall not misuse his liberty in any manner.

14 It will be open to the prosecution to apply for imposing any such other or further condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice. It will also be open to the trial Court/Magistrate to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.

15 In case the petitioner violates any condition imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail in accordance with law.

16 Learned trial Court is directed to comply with the directions issued by the High Court, vide communication No. HHC/VIG/Misc.Instructions/93-IV.7139 dated 18.3.2013.

17 Any observation made9in this order shall not affect the merits of case in any manner and will strictly confine for the disposal of this bail application filed under Section 439 of Code of Criminal Procedure 1973.

The petitioner is permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order, however, they may verify the order from the High Court website or otherwise.

Petition stands disposed of. Dasti copy on usual terms.