Isar Mohammad vs State Of Himachal Pradesh

Ajay Mohan Goel, J

By way of this petition filed under Section 439 of the Code of Criminal Procedure (hereinafter referred to ‘Cr.P.C.’ for short), the petitioner

has prayed for grant of regular bail in FIR No. 112 of 2020, dated 03.09.2020, registered at Police Station, Kihar, District Chamba, HP, under Sections

363, 366-A, 376 and 120-B of the Indian Penal Code (hereinafter referred to ‘IPC’ for short) and Section 4 of the Protection of Children from

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

Mr. Kul Bhushan Khajuria, learned Counsel for the petitioner submits that there are three accused in the FIR in issue and two of them have already

been released on bail by this Court in petitions filed by them under Section 439 of the Cr.P.C. He further submits that the petitioner had earlier filed a

petition for grant of regular bail in the Court of learned Special Judge, Chamba, which was dismissed vide order dated 11.09.2020. Thereafter, the

petitioner had approached this Court for grant of regular bail by way of Cr.M.P.(M) No. 1893 of 2020, which was permitted to be withdrawn by this

Court, with liberty to approach the Court afresh, as there was some technical defect in the petition. On merit, Mr. Khajuria submits that the petitioner

is innocent and has been falsely implicated in the case on account of animosity which exists between the families of the petitioner and alleged victim.

He further submits that after lodging of the FIR, the petitioner is in custody since 6th of September, 2020. He states that investigation in the case is

complete and challan has already been filed in the Court, and in these circumstances, no purpose is going to be served by detaining the petitioner in jail,

especially when no recovery etc. remains to be effected from or at the instance of the petitioner. He further states that the matter was listed for

consideration on charge before the Court of learned Special Judge on 11.01.2021, but now, the matter has been deferred for 20.01.2021. Mr. Khajuria

has further argued that whether the petitioner is guilty of the offences alleged against him or not, is a matter of trial, and in case, trial Court comes to

the conclusion that the petitioner is guilty of the offences alleged him, then the law will take its own course, but in the peculiar facts of this case, when

two of the accused in the case have already been released on bail, no purpose is going to be served by keeping the petitioner behind the bars.

Accordingly, a prayer has been made for release of the petitioner on bail.

Learned Additional Advocate General, while opposing the bail petition, submits that as the petitioner is the main accused in the case, there is each

and every possibility that the petitioner, if released on bail, may try to influence or win over the prosecution witnesses, and thus, create hurdles in the

course of fair trial of the case. Learned Additional Advocate General also submits that though investigation in the case is complete, but keeping in

view the fact that the case is only at the stage of consideration on charge, therefore also, no interference is warranted at this stage so as to release the

petitioner on bail. Accordingly, he has prayed for dismissal of the bail petition.

I have heard learned Counsel for the petitioner as well as learned Additional Advocate General and also gone through the status report.

It is not in dispute that two out of the three accused in the case have already been released on bail by this Court vide order dated 15.10.2020. It is

also not in dispute that investigation in the case is complete and challan also stands filed in the Court. In these circumstances, taking into consideration

the fact that the petitioner is only a 22 years old boy, in my considered view, no purpose is going to be achieved by keeping him in custody, as the

apprehension of the State that, if released on bail, the petitioner may try to influence or win over the prosecution witnesses, can be taken care of by

imposing stringent conditions upon the petitioner, including the condition that he will not try to influence or win over the prosecution witnesses with

further liberty to the State that in case petitioner violates any of the conditions imposed upon him, the State shall be at liberty to apply for cancellation

of the bail.

Accordingly, this petition is allowed and the petitioner is ordered to be released on bail on his furnishing personal bail bond to the tune of `25,000/-

with one surety in the like amount to the satisfaction of learned CJM, Chamba, within a period of two weeks from today, subject to the following

conditions:-

i) Petitioner shall 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;

ii) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever.

iii) He shall not 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 the Court or the Police Officer; and

iv) He shall not leave the territory of India without prior permission of the Court.

It is further clarified that findings which have been returned by this Court while deciding this petition are only for the purpose of adjudication of the

present bail application and learned trial Court shall not be influenced by any of the findings so returned by this Court in the adjudication of this petition

during the trial of the case. It is also clarified that in case the petitioner does not comply with the conditions which have been imposed upon him while

granting the present bail, the State shall be at liberty to approach this Court for the cancellation of the bail. The petition stands disposed of in the above

terms.

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