Irfan vs State Of Himachal Pradesh

@JUDGEMENTTAG- JUDGEMENT

Virender Singh, J

Applicant-Irfan has filed the present application, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as ‘CrPC’), seeking, his release on bail, during the pendency of trial, in case FIR No. 33 of 2023, dated 19th November, 2023, registered with Women Police Station Dharamshala, under Sections 376, 354 & 506 of the Indian Penal Code (hereinafter referred to as ‘IPC’) and Sections 6 & 12 of the Protection of Children from Sexual Offences Act (hereinafter referred to as ‘POCSO Act’).

According to the applicant, he is permanent resident of Village and Post Office Ajnala, Tehsil and District Amritsar, Punjab and is pursuing his studies.

It is the case of the applicant that the mother of the child victim, made a complaint to the Superintendent of Police, Kangra, on 17th November, 2023, in which, the mother of the child victim has alleged, that her daughter, aged about sixteen years, is being blackmailed and threatened by the accused (applicant), who is a Muslim boy by religion, and had also allured the child victim to have a love relationship. As per the further allegations, the accused (applicant) is stated to be working with his father as a private contractor and at the relevant time, they were constructing a school building at Shahpur.

According to the applicant, the mother of the child victim has alleged, in the said complaint, that on 10th November, 2023, she had made a police complaint at Police Station Shahpur, where, only the child victim was called, but, the police has not summoned the accused (applicant).

Thereafter, the complaint was made to the Superintendent of Police, on the basis of which, police registered a case under Section 506 IPC and Section 12 of the POCSO Act.

It has further been averred in the application that during investigation, the child victim was referred to Child Welfare Committee, on 21st November, 2023 and thereafter, her statement, under Section 164 CrPC, was got recorded, before the Court of learned JMFC-I Dharamshala, in which, she has deposed that she was in talking terms with the accused (applicant), but, he has not committed any wrongful act with her.

It is the further case of the applicant that on 1st December, 2023, the mother of the child victim again made a complaint to SP Kangra, apprehending that wrongful act has been committed with the child victim, by the accused (applicant) and she wanted to get her medically examined. On the basis of the above facts, the police has added Section 6 of the POCSO Act, in this case.

Assailing the case of the prosecution, it is the case of the applicant that the subsequent conduct of the child victim and her mother demonstrates that no prima facie case is made out against the applicant. He has termed the case registered against him, as false case, in which, he has been arrested by the police.

According to the applicant, he is an innocent person and has nothing to do with the alleged offences.

Apart from this, Mr. Karan Veer Singh, learned counsel appearing for the applicant, has given certain undertakings, on behalf of the applicant, for which, the applicant is ready to abide by, in case, he is ordered to be released on bail, during the pendency of the trial.

The applicant has earlier tried his luck by moving the bail application, before the learned Special Judge, Kangra, H.P., however, the same has been dismissed, vide order, dated 18th March, 2024.

On the basis of the above facts, a prayer has been made to allow the bail application.

When put to notice, the police has filed the status report, disclosing therein, that on 17th November, 2023, a complaint, moved by the mother of the child victim, was received in Women Police Station, Dharamshala, which was forwarded by SP Office, Dharamshala.

12.1. As per the complaint, the mother of the child victim wanted to get the matter inquired from Irfan (applicant) and was interested to get the photographs of the child victim deleted, which were allegedly in the phone of the applicant, upon which, the applicant was directed to appear before the police, but, his father disclosed to the police that his son had gone to his native place.

12.2. On 19th November, 2023, the father of the accused (applicant) produced him before the police and the matter was inquired from him. The matter was also inquired from the child victim, who has disclosed that she was in talking terms with the accused (applicant) on phone. According to the child victim, the phone of her mother was being used by her and they used to chat with each other over whats app social media platform. Thereafter, the police has perused the chat between both of them, which was available on the mobile phone of the mother of the child victim. It was found that the number of the accused (applicant) was saved by the child victim, under the name of ‘Neetu’.

12.3. It has also been found, during the investigation, that the accused (applicant) pressurized the child victim to meet him and for having physical relations, upon which, the police has registered the case.

12.4. As per the averments of the complaint, the child victim is daughter of the complainant, aged about sixteen years, who has been allured by applicant-Irfan and now, he is threatening her. The complainant has also alleged that the accused (applicant) had again started harassing the child victim, on the pretext of making her photos public.

12.5. Initially, the police registered the case, under Section 506 IPC and Section 12 of the POCSO Act. Thereafter, the statement of the child victim, under Section 161 CrPC, was recorded. On 21st November, 2023, the child victim was sent to CWC, Dharamshala, for counselling. Thereafter, her statement, under Section 164 CrPC, was got recorded by producing her, before the Court of learned JMFC-I, Dharamshala. In her statement, under Section 164 CrPC, the child victim has not alleged anything wrong, which has been committed by the accused (applicant), except stalking.

12.6. It has been mentioned in the status report, that, during the course of investigation, the documents, pertaining to the date of birth of the child victim, were procured, according to which, her date of birth was found to be 23rd April, 2008.

12.7. Thereafter, on 1st December, 2023, mother of the child victim again moved a complaint, disclosing therein, that she wanted to get her daughter medico-legally examined, as, she is having a suspicion that something wrong has been done with her daughter. The child victim was medically examined and the Medical Officer has given the opinion in the MLC that ‘there is evidence of penetration of vagina, however opinion regarding sexual intercourse will be given after FSL Report’, upon which, Section 376 IPC and Section 4 of the POCSO Act were added, in this case.

12.8. As per the status report, on 4th December, 2023, the child victim was again produced before the Court of learned CJM Dharamshala, where, her statement, under Section 164 was recorded, in which, she has got recorded that the accused (applicant) used to harass her and he has raped her on a number of occasions, however, due to his fear, she could not disclose this fact to anyone.

12.9. On the same day, the father of the accused (applicant) has produced the mobile phone of the accused (applicant), from which, he used talk with the child victim. The supplementary statement of the child victim was also recorded, under Section 161 CrPC. The child victim has also identified the place, where, she was allegedly raped by the accused (applicant), from where, the physical evidence was collected and the same was sent to FSL Junga. The accused (applicant) was arrested on 20th December, 2023.

12.10. After the completion of the investigation, the police has submitted the report, under Section 173 (2) CrPC, on 5th January, 2024.

On the basis of the above facts, a prayer has been made to dismiss the bail application.

Learned counsel appearing for the applicant has argued that different versions have been given by the child victim at the different stages of the investigation. To buttress his contention, the learned counsel for the applicant has referred to the statement of the child victim, recorded under Section 164 CrPC on 21st November, 2023, in which, she has virtually exonerated the accused (applicant), by deposing, that, nothing wrong has been done with her. However, in the statement, which was recorded on 4th December, 2023, she has levelled the allegations against the accused (applicant).

These facts are to be considered by the learned trial Court, as, the child victim has specifically deposed that due to fear of the accused (applicant), she has not narrated the above facts in her earlier statement. If there is difference/contradiction between the two statements, it is the sole domain of the learned trial Court to consider the same, in the light of the explanation given by the child victim, as well as, by the witnesses.

Moreover, at the time of deciding the bail application, the detailed discussion of the evidence, so collected and produced by the prosecution, should be avoided, as, it may cause prejudice either to the case of the prosecution or to the case of the accused (applicant).

The age of the applicant is stated to be 23 years. Considering the fact that investigation, in the present case, is complete, this Court is of the view that no useful purpose would be served by keeping him in the judicial custody, for the indefinite period, as, the chances of the commencement and conclusion of the trial, against the applicant, in near future, are not so bright.

So far as the apprehension of the police that the applicant is resident of Punjab, is concerned, for that apprehension, reasonable conditions can be imposed, in case, the applicant is ordered to be released on bail.

No other criminal history of the applicant has been pleaded or argued by the learned Additional Advocate General.

The bail application cannot be rejected as a matter of punishment, as, the accused is presumed to be innocent, till the conclusion of the trial. The dismissal of the bail application is nothing, but, punishing the applicant before the conclusion of the trial, which is prohibited under the law.

Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed.

Consequently, the applicant is ordered to be released on bail in case FIR No. 33 of 2023, dated 19th November, 2023, registered with Women Police Station Dharamshala, under Sections 376, 354 & 506 IPC and Sections 6 & 12 of the POCSO Act, on his furnishing bail bonds, in the sum of ₹ 50,000/-, with two sureties of the like amount, to the satisfaction of the learned trial Court. This order, however, shall be subject to the following conditions:

a) The applicant shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

b) The applicant shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c) The applicant shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; and

d) The applicant shall not leave the territory of India without the prior permission of the Court.

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.

It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found to be violated by the applicant.

The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, District Jail, Kangra at Dharamshala, through e-mail, with a direction to enter the date of grant of bail in the e-prison software.

In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Jail, District Jail, Kangra at Dharamshala, is directed to inform this fact to the Secretary, DLSA Kangra. The Superintendent of Jail, District Jail, Kangra at Dharamshala, is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court.

Record be returned to the quarter concerned.