Jai Prakash vs State Of Himachal Pradesh

Virender Singh, J

Applicant-Jai Prakash 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. 69 of 2023, dated 13th April, 2023, registered with Police Station Baijnath, District Kangra, H.P., under Sections 363, 376, 120B of the Indian Penal Code (hereinafter referred to as ‘IPC’) and Sections 4 and 6 of the Protection of Children from Sexual Offences Act (hereinafter referred to as ‘POCSO Act’).

According to the applicant, he is an innocent person and has falsely been implicated, in this case.

It is the further case of the applicant that the investigation, in the present case, is complete. According to him, he and the child victim were having love relationship and were living together, after solemnizing marriage. However, the said marriage was not acceptable to the mother of the child victim, as such, she, according to the applicant, has concocted the story.

According to the applicant, he is in judicial custody since 2nd June, 2023. Investigation of the case is stated to be complete and the police is stated to have filed the charge sheet, in this case.

Apart from this, 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 Additional Sessions Judge, Fast Track Special Court, POCSO, Kangra at Dharamshala, District Kangra, H.P., however, the same has been dismissed, vide order, dated 2nd September, 2023.

Thereafter, the applicant has filed CrMP (M) No. 2971 of 2023, before this Court and the same has been dismissed as withdrawn, on 4th December, 2023.

On the basis of the above facts, Mr. N.K. Thakur, learned Senior Counsel, appearing on behalf of the applicant, has stated that despite the submission of challan, before the Competent Court of Law, the prosecution could not examine any of the prosecution witnesses, in this case. Hence, 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 13th April, 2023, the mother of the child victim, alongwith her son, appeared before the police and lodged the report, disclosing therein, that she is having three children. Her younger daughter (child victim) was studying in 9th standard, about three years prior to the date, when, she appeared before the police, on 13th April, 2023.

9.1. According to the complainant, on 6th April, 2023, the child victim had left the home, on the pretext of going to a fair at Joginder Nagar. The child victim had apprised the complainant to go to her friend’s house, after the fair, upon which, the complainant had permitted the child victim to attend the fair and to go to her friend’s house.

9.2. As per the version of the complainant, earlier also, the child victim used to go to her friend’s house and used to come back after 5-7 days, but, this time, she did not come back. The efforts to trace her were made, but, she could not be found.

9.3. The age of the child victim is stated to be 16 years. According to the complainant, the child victim was not having any mobile phone with her. The child victim is stated to be mentally weak.

9.4. On the basis of these facts, police registered a case under Section 363 IPC. Thereafter, the criminal machinery swung into motion. The investigation of the case was initially conducted by ASI Satya Prakash. The child victim was recovered from the house of Jai Prakash (applicant) on 7th June, 2023. After inquiry from the child victim, the provisions of Sections 376 and 34 IPC read with Sections 4 and 6 of the POCSO Act, were added, in this case.

9.5. Thereafter, the statements of the child victim and her mother (complainant), under Section 161 CrPC, were recorded. Accused-Jai Prakash (applicant), Kamlesh Kumar and Shanta Devi, were arrested. On 8th June, 2023, the accused were produced before the Competent Court of Law and they were remanded to police custody. Accused-Kamlesh Kumar and Shanta Devi have already been released on bail by the learned Special Judge.

9.6. During the course of investigation, the statement of the child victim, under Section 164 CrPC, has been recorded, in which, she has got recorded that she was got married with the brother-in-law of Bablu Bhai. Thereafter, they had gone to Kullu, where vermilion was applied and garland was put. In addition to this, the child victim has deposed that the applicant had done wrong act with her.

9.7. The physical evidence, so collected by the Doctor, during medico-legal examination of the child victim, was sent to FSL Junga. The physical evidence, which was collected during the medico-legal examination of the applicant, was also sent to FSL Junga, for DNA profiling, As per the status report, positive report, has been received, in this regard.

9.8. Thereafter, on the completion of the investigation, the police has submitted the report, under Section 173 (2) CrPC, against the accused.

9.9. As per the status report, in case, the applicant is ordered to be released on bail, he may coerce the witnesses and may also hamper the investigation, of the case. It has also been apprehended that the applicant may not be available during the trial, in case, he is ordered to be released on bail.

9.10. Lastly, it has been submitted, in the status report, that there are 22 prosecution witnesses, in this case, but, till date, no witness has been examined. The next date of the case is stated to be of 19th June, 2024.

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

The applicant is in judicial custody and this fact is sufficient to conclude that at this stage, his custodial interrogation is no longer required by the police. The charges, in this case, have been framed and out of 22 prosecution witnesses, the prosecution could not examine even a single witness. Meaning thereby, the chances of conclusion of the trial, against the applicant, in near future, are not so bright. As such, no useful purpose would be served by keeping the applicant in judicial custody, for indefinite period.

The role, allegedly, played by the applicant, in the commission of the crime, will be proved during the trial. 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.

No other criminal history of the applicant has either been mentioned in the status report, or, argued by the learned Additional Advocate General.

The applicant is permanent resident of District Mandi, as such, it cannot be apprehended that in case, he is ordered to be released on bail, he may not be available for trial. So far as the other apprehensions, which have been expressed by the police, in this case, are concerned, for those apprehensions, reasonable conditions can be imposed on the applicant, in case, he is ordered to be released on bail.

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. 69 of 2023, dated 13th April, 2023, registered with Police Station Baijnath, District Kangra, H.P., under Sections 363, 376, 120B IPC and Sections 4 and 6 of the POCSO Act, on his furnishing bail bonds, in the sum of ₹ 50,000/-, with one surety 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, Lala Lajpat Rai District & Open Air Jail, 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, Lala Lajpat Rai District & Open Air Jail, Dharamshala, is directed to inform this fact to the Secretary, DLSA Kangra. The Superintendent of Jail, Lala Lajpat Rai District & Open Air Jail, 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.

Before parting with the judgment, this Court must record its deep concern about the manner, in which the provisions of Section 33 (7) of the POCSO Act are being violated, with impunity, by the prosecution/police.

In this case, the SHO Police Station Baijnath, has submitted the status report, which has been submitted before this Court, by SI Pankaj, IO, Police Station Baijnath. Interestingly, in the status report, the name of the mother of the child victim, as well as, the name of the child victim, have clearly been mentioned, which is clear cut violation of not only the provisions of Section 33 (7) of the POCSO Act, but, violation of the directions issued by a Division Bench of this Court in a case, titled as State of Himachal Pradesh versus Shiv Lal @ Champi, reported in 2022 (4) Shim. LC 1862.

Not only this, this Court in CrMP (M) No. 2409 of 2023, titled as Naveen Thapa versus State of Himachal Pradesh, decided on 28th September, 2023, has directed the Director General of Police, through Principal Secretary (Home) to the Government of Himachal Pradesh, to issue necessary instructions to all the investigating officers, to adhere to the provisions of Section 33 (7) of the POCSO Act. These directions were issued on 28th

In such situation, let a notice, returnable for 17th June, 2024, be issued to SHO, Police Station Baijnath, District Kangra, H.P., to show cause as to why proceedings, under the Contempt of Courts Act, for violating the directions issued, by this Court, in both the aforementioned cases, be not initiated against him.

Since, the directions have been issued to the Director General of Police, through Principal Secretary (Home) to the Government of Himachal Pradesh, as such, the version of Principal Secretary (Home), to the Government of Himachal Pradesh; Director General of Police, Himachal Pradesh; and, Superintendent of Police, Kangra, be also called for, for the date fixed, before proceeding further, in this regard.

For the purpose, list on 17th June, 2024.