Gulshan Kumar vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner herein is an accused in case FIR No.25 of 2021 dated 26.02.2021, registered in Women Police Station Baddi, District Solan, H.P., under

Sections 363, 354-C, 354-D, 504 and 506 of the Indian Penal Code (in short ‘IPC’) and Sections 8, 12 and 14 of the Protection of Children from

Sexual Offences Act, 2012 (hereinafter referred to as ‘POCSO Act’).

Petitioner has been arrested on 12.04.2021 and since then after remaining in police custody, he is in judicial custody. He has approached this Court

seeking regular bail under Section 439 Code of Criminal Procedure (in short ‘Cr.P.C.’).

Status report stands filed, wherein it is stated that on 26. 03.2021 mother of victim had submitted a complaint against the petitioner stating therein

that on 21.03.2021 when her 16 years old daughter, studying in 9th class, was going to house of her friend, alongwith her fiancée to have an MBD

help book, a boy standing at a distance of 200 meters from their house had threatened the fiancée of her daughter and made him to flee from the

spot and thereafter had asked her daughter to put off her Salwar and had made a video of her daughter and under threats had obtained mobile number

of her father from victim and had sent the video of their daughter on that mobile phone. After receiving the video, on inquiry, her daughter had

disclosed entire episode to her mother and had also informed that petitioner had threatened her to viral the said video on ‘Facebook’ and

‘Twitter’ and further that name of offender boy, as per Truecaller, was Gulshan Kumar.

On the basis of complaint received, FIR, was registered and thereafter investigation was carried on. During investigation, it was found that

petitioner had also sent text message as well as Whatsapp messages with threats to the father of the girl.

After arrest, petitioner-accused, after remaining in police custody for three days, is in judicial custody since 15. 04.2021. In the status report, it is

stated that on earlier occasions also petitioner had been found to be involved in commission of offences leading into registration of FIRs against him

i.e. FIR No.134 of 2016, dated 12.06.2016, registered in Police Station Kangra, H.P., under Sections 452 and 323 read with Section 34 IPC; FIR No.

215 of 2016, dated 10.08.2016, registered in Police Station Kangra, H.P., under Sections 376, 341, 354(A)(1) and 506 IPC; and FIR No.62 of 2016,

dated 27.04.2016, registered in Police Station Barotiwala, under Section 381 read with Section 34 IPC.

Learned Additional Advocate General has also placed on record copy of FIR No.215 of 2016, dated 10.08.2016.

On behalf of the petitioner, copy of order dated 29. 11.2016, passed by learned Additional Sessions Judge-II, Kangra at Dharamshala, District

Kangra, H.P., in Bail Application No.594 of 2016, titled as Gulshan Kumar vs. The State of Himachal Pradesh, in case FIR No.215 of 2016, has been

placed on record and it has been contended that petitioner has not violated any terms or conditions imposed upon him at the time of granting bail in the

said case and further by placing downloaded copy of order dated 03.05.2019, passed by the trial Court in the said case, has demonstrated that instead

of Section 376 IPC, on the basis of challan produced, Court has framed charge against petitioner under Section 376 read with Section 511 IPC.

After going through the contents of the FIR as well as order placed on record by learned counsel for the petitioner, I find that, at this stage, these

documents may not be relevant for rejecting bail of petitioner-Gulshan Kumar. Other FIRs were registered in the year 2016.

Learned counsel for the petitioner has submitted that petitioner has never intended to defame or threaten the victim or her family, rather he had

noticed the victim and her fiancée in an objectionable position and in order to inform the same to the parents of the victim he had sent the video of

their daughter only to her father and he had never published or transmitted the video to anybody else except to the family members of the girl.

Merit of the allegations and the defence thereof are to be adjudicated by the trial Court on the basis of material placed before it during trial.

However, cumulative effect of the facts and circumstances, surfaced from the material on record, I find that at this stage, petitioner may be enlarged

on bail.

Accordingly, petition is allowed and petitioner is ordered to be released on bail in case FIR No.25 of 2021, dated 26. 02.2021, registered in Women

Police Station Baddi, District Solan, H.P., on his furnishing personal bond in the sum of  Rs.50,000/- with two sureties in the like amount, to the

satisfaction of the trial Court, within two weeks from today, upon such further conditions as may be deemed fit and proper by the trial Court, including

the conditions enumerated hereinafter, so as to ensure the presence of petitioner/accused at the time of trial and also 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 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 the petitioner 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 he is 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 in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by

prosecution;

(viii) that the petitioner shall not leave the territory of India without prior permission; and

(ix) that the petitioner shall inform the Police/Court his contact number and shall keep on informing about change in address and contact number, if

any, in future.

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 and thereupon, it will also be open to the trial Court to impose any

other or further condition on the petitioner as it may deem necessary in the interest of justice.

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.

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.

Petition is disposed of in aforesaid terms.

Copy dasti.

Petitioner is permitted to produce a copy of this judgment, downloaded from the web-page of the High Court of Himachal Pradesh, before the

authorities concerned, and the said authorities shall not insist for production of a certified copy but if required, may verify it from Website of the High

Court.