Daljeet Singh vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Instant petition has been filed under Section 439 Cr.P.C., seeking regular bail in case FIR No. 270 of 2019 dated 15.11.2019 registered under Sections 363, 376, 201, 120-B of IPC read with Section 4 of Protection of Children from Sexual Offences (POCSO) Act, 2012 in Police Station Nurpur, District Kangra, H.P.

Status report stands filed, wherein it is stated that father of victim had lodged a complaint with the Police on 15.11.2019 that his daughter (victim), student of Bsc. 1st Year in Government Degree College, had not returned from the College on 14.11.2019 and despite making all efforts to search her in her relations and other places, she was not found and her mobile was also found switched off since 14.11.2019 and on enquiry from her class fellows, no clue has been found by him and he had apprehended that some unknown boy had taken away his daughter.

After registration of FIR on the basis of complaint of victim's father, during investigation from class mates of victim and her mother, it was revealed that victim was receiving calls from Mobile No. 9915287804 and the said sim was found in the name of one Manjeet Kaur (mother of petitioner). On keeping this mobile number along with mobile number of victim on surveillance, it was found that these numbers were not in use. On 4.12.2019, Police conducted search of house of Manjeet Kaur, but victim was not found there. Her husband Satnam Singh was found there. On search his son petitioner Daljeet Singh and victim were not found there and during that search Manjeet Kaur arrived at spot and disclosed that her younger son was telling her that her elder son Daljeet Singh (petitioner) had come at Chandigarh/Lalroo, accompanying a girl and had stayed there, but since last 2 days, he was not there and she further told that her younger son was coming home and he would help in locating petitioner Daljeet Singh and victim.

It is further case of the prosecution that on 5.12.2019, neither Manjeet Kaur nor her husband Satnam (parents of petitioner) or elder brother of petitioner had appeared before the Police, whereupon Investigating Officer along with Police Party and Sarpanch had gone to the residence of Manjeet Kaur, who told that her husband had gone somewhere and son Kinder had not come to home. At that stage, it was concluded by Investigating Officer that Manjeet Kaur was in conspiracy with her son Daljeet Singh and had harbored accused to save from the Police and thus she was arrested on 5.12.2019 under Section 120B, 212 IPC. She was released on bail on 26.12.2019 by learned Judicial Magistrate 1st Class, Nurpur.

It is further stated in the status report that on 26.1.2020 victim was recovered from village Kagge in District Taran Taran Punjab and petitioner Daljet Singh was also arrested from Ria Bias.

As per prosecution, statements of victim was recorded under Section 161 and 164 Cr.P.C. wherein she had stated that on 14.11.2019, petitioner Daljeet Singh has taken her from Jasoor and when they were at Pathankot, petitioner had thrown his and victim's phone and sim card after destroying and on 22.11.2020 she was violated by petitioner at Mani Majra and thereafter he had taken her to his home at Bias, where Manjeet Kaur, mother of petitioner had stated that girl was of tender age and thus she had arranged their stay in the house of her relative Dilbag Singh, resident of Kagge to save them from the Police, where also victim was violated by petitioner.

It is case of prosecution that petitioner had taken victim to Lalroo in quarter of his brother and had stayed there for 3-4 days, whereafter one Ashu employer of petitioner's brother had dropped them at Mani Majra in the residence of his sister where they stayed for 8-9 days and thereafter mother of petitioner had arranged their stay.

At the time of alleged incident, prosecutrix, as per documents relied upon by the prosecution was about 17 years old. It is told that petitioner is 20-21 years old boy.

As per status report, during investigation, it had come on record that petitioner had disclosed to Ashu, Ashu's sister and his brother that he had solemnized marriage with victim and, therefore, Ashu had arranged his stay in his house and also in the house of his sister on the basis of the said information.

Petitioner had also filed an application for bail before learned Special Judge, Kangra at Dharamshala, which was rejected vide order dated 18.5.2020. In the said order learned Special Judge has put misconceived reliance on the pronouncement of the Apex Court in State of Rajasthan Vs. Om Parkash (2002) 5 SCC 745, wherein it has been held that in cases of child rape and their sexual abuse a different approach is required to be adopted. In the facts and circumstances of the present case, the incident does not appear to be child abuse or human trafficking, but an affair, which for age of victim has become an offence. Therefore, ratio of aforesaid judgment of the Apex Court is not applicable in present case.

From the contents of status report and facts of prosecution case, it is apparent that petitioner and victim had travelled from Jasoor to Pathankot and then Pathankot to Lalroo and then Mani Majra and thereafter to Bias and therefrom to Village Kagge and throughout victim was accompanying the petitioner in public transport and in public places also and at no point of time any resistance on her part has been indicated in the prosecution story. It has also come on record that before the incident petitioner and victim were in constant touch with each other and the said fact was also in the knowledge of mother of the victim. Despite all this, but for her age, consent of victim may not be material in prosecution launched against petitioner in the present case. However, entire circumstances are to be appreciated by the trial Court on the basis of evidence produced before it during the trial. Therefore, without commenting upon the merits of the case, in the facts and circumstances, narrated in the status report, conduct and manner in which petitioner has acted during alleged commission of offence and also keeping in view the age of the victim as well as petitioner, I am of the considered opinion that it is a fit case to enlarge petitioner on bail at this stage.

In view of above, petitioner is ordered to be released on bail in case FIR No. 270 of 2019 dated 15.11.2019, registered under Sections 363, 376, 201, 120B of IPC read with Section 4 of POCSO Act in Police Station Nurpur, District Kangra, H.P., on his furnishing personal bond in the sum of  Rs.50,000/- with one surety in the like amount, to the satisfaction of trial Court, within two weeks from today, subject to following conditions:-

(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required;

(ii) 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. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iii) that he shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioner shall not commit the offence similar to the offence to which they are accused or suspected;

(v) that the petitioner shall not misuse his liberty in any manner;

(vi) that the petitioner shall not jump over the bail;

(vii) that he shall keep on informing about the change in address, landline number and/or mobile number, if any, for his availability to Police and/or during trial;

(viii) He shall not leave India without permission of the Court.

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

In case the petitioner violate any conditions imposed upon them, 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.

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 18.03.2013.

Observations made in this petition hereinbefore shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.

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, he may verify the order from the High Court website or otherwise.

The petition stand disposed of in the aforesaid terms.