Ivad vs State Of H.P

Vivek Singh Thakur, J

By way of this petition, petitioner is seeking regular bail under Section 439 of the Code of Criminal Procedure (in short ‘Cr.P.C.’), in case

FIR No.34 of 2021, dated 5.3.2021, registered in Police Station Sadar, Shimla, H.P., under Sections 363, 366A, 370(4), 506, 201 and 120B of the

Indian Penal Code (in short ‘IPC’).

The petitioner was arrested on 22.4.2021 and, after remaining in police custody, now he is in judicial custody.

Status report(s) stand filed, wherein it is stated that on 5.3.2021 victim, aged about 15 years, who is studying in Class 9th, had left her home at 9.30

a.m. to attend her school i.e. Sanatan Dharam Senior Secondary School, Ganj Bazaar, Shimla, and when she did not return home in the evening, her

father, on inquiry, had received information that on that day students were not called in the school. With aforesaid details, father of the victim had

approached Police Station Sadar, Shimla, with suspicion that someone had abducted his daughter after alluring and misleading her.

It is further stated in Status Report that on complaint of father of the victim, case under Section 363 IPC was registered and investigation was

started. During investigation, location of mobile number of victim was found in Haryana leading to the clue to the police that victim was travelling

towards Delhi. Whereupon, police party was sent to Delhi in search of victim and it was also found that victim was having too many talks on two

mobile numbers (96398-21301 and 62382-27896), therefore, CDRs and location of those two numbers were also requisitioned.

Investigating Officer, on 6.3.2021, after reaching in Police Station Badarpur, Delhi, started investigation and found that last location of victim, on

5.3.2021 at about 8.19 p.m., was found at Panipat and thereafter her phone was found switched off. From CDRs of two mobile numbers,

Investigating Officer had contacted on some mobile numbers, which were found in contact of these two mobile numbers and during this exercise, one

mobile number 95606-42747 was found to be of one Jatin Malik, who, in response, informed the Investigating Officer that he is having a Maruti Car

bearing registration No.DL9CAP-3819 and on 5.3.2021 he had gone to Ambala from Delhi to drop a passenger and at Ambala a girl had met him,

who had disclosed that she was going to Delhi, whereupon, when he was taking that girl to Delhi alongwith him and had reached near Panipat, mobile

phone of that girl had switched off and for that reason that girl had contacted someone through his (Jatin’s) mobile and the person, with whom she

had talked, had disclosed his name to him (Jatin) as Zuber and further that Zuber had told him that one boy will send him location from mobile number

96671-56859 and had asked him (Jatin) to drop the victim on that location and thereafter on receiving location of Badarpur, Delhi from the aforesaid

number, he had dropped the victim at Badarpur NTPC Chowk at about 10.30 p.m. on 5.3.2021, wherefrom a boy had taken her.

During investigation, it was revealed that the boy, who had sent the location, was one Ibrahim residing at Badarpur in a room rented in a building

known as ‘Akash’. During search for Ibrahim, his room was found locked and it came in notice that he was hiding in some other house in the

room of his friend, wherefrom he was apprehended and taken to Badarpur Police Station and shown to Jatin, and Jatin had identified him the same

boy to whom he had handed over the girl on 5.3.2021.

During interrogation, Ibrahim had disclosed that on 5.3.2021 he had received calls from Zuber and Nazim @ Sameer, the boys belonging to his

village, who were working with him earlier at Delhi, but presently Zuber was at Chennai, whereas, Nazim @ Sameer was in Kerala. He had further

revealed that both of them had informed him that one ‘X’ named girl (victim) would come in some vehicle at Badarpur NTPC Gate and they

had asked him to take her to his quarter and further that on request of these two persons he had taken the victim from Badarpur NTPC Gate to his

room in ‘Akash’ building and had kept her in his room on 5.3.2021 and 6.3.2021 and, on 7.3.2021, he had taken the victim to Dhakia and as he

was anticipating that police would be in his search, therefore, he was not sleeping in his room but was staying with his friend. Ibrahim had also

disclosed that victim, at the time of investigation, was in Dhakia and his elder brother Istiyaak, who is serving at Delhi and living with him in the same

room, had also gone to Village Sahaspur near Dhakia and on his message he would come to Badarpur alongwith victim. Ibrahim had also disclosed

that Nazim @ Sameer was intending to marry victim, and Nazim @ Sameer and Zuber had called victim to Delhi, but Zuber was at that time at

Chennai and Nazim @ Sameer was in Kerala and, therefore, victim was housed with him.

On 8.3.2021 at about 9.30 a.m. Istiyaak (brother of Ibrahim) and Nasrin, on message, had brought victim to Police Station Badarpur, Delhi, who

was identified by her father and thereafter victim had identified the places where she was dropped from the car and also the room of Ibrahim.

On 10.3.2021, statement of victim was also recorded under Section 164 Cr.P.C. and considering the circumstances revealed, during investigation

and from statement of victim, Sections 366A, 370(4), 506 and 120B IPC were also added in the case. As per record age of victim is 14 years 11

months.

During investigation, co-accused Nasrin had disclosed that Ibrahim had brought the minor victim to her house on 7.3.2021, and, on the mobile of

Ibrahim, her brother Nazim @ Sameer had also talked with her and the petitioner, and she and the petitioner had kept the minor in their home at the

behest of Nazim @ Sameer, and despite having knowledge about age and religion of victim, for circumstances in which victim had reached there, they

did not report the matter to the police and when Istiyaak brother of Ibrahim had come to their house to take victim to Delhi and during night they came

to know that staying of victim with them had come in the knowledge of police, then firstly they had resisted, but lateron had agreed to send victim to

Delhi.

During investigation, it has also come that Nazim @ Sameer had been in contact of victim since last five months, after sending her friend requests

on FACEBOOK and thereafter he was in regular contact of the victim and the petitioner and his wife co-accused Nasrin had kept the victim with

them after having conversation with main accused Nazim @ Sameer and Zuber.

Learned Additional Advocate General has submitted that earlier the petitioner was not submitting himself for interrogation and had been resisting

handing over of the victim to the police, and it was only after dismissal of his anticipatory bail application that he was arrested. Further that it being a

big conspiracy to traffic the victim to a foreign country and keeping in view the role of the petitioner and the fact that main accused Nazim @ Sameer

is his brother-in-law and petitioner had been facilitating the commission of offence, he does not deserve to be enlarged on bail as on his release there is

every possibility of his fleeing from justice and it would be very difficult to apprehend him. So, the learned Additional Advocate General has prayed for

dismissal of the bail application.

Learned counsel for the petitioner has submitted that on request of Nazim @ Sameer, who is brother of Nasrin (wife of petitioner), the petitioner

and his wife had agreed to keep the victim in his house. He has further submitted that the victim was brought to the house of petitioner during odd

hours and at that time, otherwise also; family of the petitioner was having no other option except to keep the victim in their house for her safety. He

further submits that as per prosecution story also, main accused had planned to keep the victim with another girl at Delhi but when the said girl refused

to allow the victim to be accommodated during odd hours then main accused Ibrahim, after keeping the victim in his room for two days, in consultation

with Nazim @ Sameer (brother -in -law of petitioner Ivad) had taken her to Dhakia to keep the victim in the house of petitioner and, thus, even if

prosecution story of conspiracy to traffic the victim to foreign country is considered to be true then also petitioner is not part of such alleged main plan

of the main accused.

Learned counsel for the petitioner has submitted that it is not a case of big conspiracy, but of simple story of love affair where victim herself had

left her house and reached Ambala and petitioner had only, in order to ensure her safety, had been making arrangements for her arrival to Delhi in his

house and at the time of leaving house by the victim, petitioner was in Kerala and it was not possible for him to kidnap victim or allure her to leave

lawful guardianship of her parents. He has further submitted that there is no overt act on the part of petitioner in leaving of the house by the victim,

rather victim had voluntarily left her house and when she reached Ambala, the petitioner had only helped her by providing shelter to her. He has

further submitted that in case the petitioner is ordered to be released on bail, the petitioner is ready to furnish local surety and also undertakes to abide

by all the conditions that may be imposed by the Court.

Wife of the petitioner, Nasrin, is also a co-accused in the present case. She was arrested and after remaining in police remand she remained in

judicial custody and has been ordered to be enlarged on bail on 9.4.2021. Thereafter, earlier petition filed by petitioner, seeking anticipatory bail, was

dismissed on 9.4.2021, keeping in view the nature, gravity and seriousness of offence, for the manner in which victim has been managed to be

transported/travelled from Shimla to a remote village of Uttar Pradesh in an organized manner, and also for finding or ruling out possibility of amplitude

and magnitude of the conspiracy, and, at that time, prayer for custodial interrogation of the petitioner was found to be justified and thus was accepted.

Thereafter, the petitioner was arrested on 22.4.2021 and since then he, after remaining in Police custody, is in judicial custody.

Considering entire facts and circumstances brought before me and finding that role of the petitioner is limited, like his wife Narsrin, wherein the

petitioner has provided shelter to the victim in his house, case of petitioner, where it is almost similar to Nasrin, there it is also distinct, different and

distinguishable from the role of other accused and, thus, he can be treated differently and, therefore, I am of the opinion that, at this stage, petitioner

may be enlarged on bail.

Accordingly, the petition is allowed and petitioner is ordered to be released on bail in case FIR No.34 of 2021 dated 05.03.2021, registered in

Police Station Sadar, Shimla H.P., on his furnishing personal bond in the sum of  Rs.1,00,000/-with two sureties in the like amount, out of which one

surety, as undertaken, shall be local surety, to the satisfaction of the trial Court, upon such further conditions as may be deemed fit and proper by the

trial Court, including the conditions enumerated hereinafter, so as to ensure presence of petitioner/accused at the time of trial:

(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.

(iii) that the petitioner 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/trial;

(v) that the petitioner shall not commit the offence similar to the offence to which she is accused or suspected;

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

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

(viii) that in case petitioner indulge in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by

prosecution;

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

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

any, in future.

It will be open for 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.