Jamaludeen vs State of Himachal Pradesh

The present bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release in case FIR No. 17 of 2017, dated 27.02.2017, under Sections 363, 366(A), 376 IPC and Section 4 of POCSO Act, registered at Police Station Kala Amb, District Sirmaur, H.P.

As per the petitioner, he is innocent and has been falsely implicated in the present case. He is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so he may be released on bail.

Police report stands filed. As per the prosecution, on 27.02.2017, complainant Shri Sahwan Ansari moved a complaint to the police alleging that he has two daughters and the younger one, whose age is 15 1/2 years, used to stay in the house, as she has studied upto 8th standard. He has further alleged that he engaged the petitioner as a servant in his shop and he used to come to his house. On 25.02.2017, when his daughter (prosecutrix) was alone in the house, the petitioner on the pretext of marrying enticed her away. On the basis of the complaint of the complainant, police registered a case against the petitioner and investigation ensued. On 06.03.2017, on the identification of the complainant, prosecutrix was recovered from a rain shelter, near Auto Stand, Phase-II, Delhi, and she was entrusted in the custody of the complainant. The petitioner was brought to Police Station Kala Amb. Statement of the prosecutrix was recorded under Section 161 Cr.P.C., wherein she has stated that the petitioner established physical relations with her many times. The petitioner was arrested and the prosecutrix was medically examined. Statement of the prosecutrix, under Section 164 Cr.P.C., was recorded before the learned Chief Judicial Magistrate. On the basis of the identification of the petitioner, spot maps of the sites, where he kept the prosecutrix, were prepared. Police also recovered a bed sheet and entry register of the hotel, where he kept the prosecutrix. The petitioner was medically examined. Samples were sent for forensic analysis and as per the report of forensic analysis, human semen was detected on the underwear and pajama of the prosecutrix. As per the medical opinion, the petitioner was found fit for sexual intercourse. As per the records, the prosecutrix was born on 29.07.2001 and on the day of occurrence, her age was fifteen years and seven months. After conclusion of the investigation, challan was presented in the Court. As per the prosecution, report of DNA analysis is yet to be received and thereafter supplementary challan will be presented in the Court. Lastly, the prosecution has prayed that as the petitioner was found involved in a heinous crime, his bail application may be dismissed.

Heard. The learned counsel for the petitioner has argued that the petitioner is innocent and he is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. He has further argued that no fruitful purpose will be served by keeping the petitioner behind the bars for an unlimited period. Conversely, the learned Additional Advocate General has argued that there is likelihood that in case the petitioner is enlarged on bail, he may flee from justice. He has further argued that the petitioner is hardened criminal and also taking into consideration the seriousness and gravity of the offence, it has been prayed that the bail application may be dismissed.

I have gone through the rival contentions of the parties and the police report in detail.

The complainant has stated that the petitioner took his daughter when he had gone with the flock of sheep in the jungle on the day of occurrence. At this stage, taking into consideration the age of the petitioner as well as of the prosecutrix, this Court finds that in case the petitioner is kept behind the bars for an unlimited period, no purpose will be served as the petitioner is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so keeping in view all the aspects, which have come on record, and without discussing the same at this moment, this Court is of the considered opinion that the present is a fit case where the judicial discretion to admit the petitioner on bail is required to be exercised in his favour. Accordingly, the present petition is allowed and it is ordered that the petitioner, who has been arrested by the police of Police Station Amb, District Sirmaur, H.P., in connection to FIR No. 17 of 2017, dated 27.02.2017, under Sections 363, 366(A), 376 IPC and Section 4 of the POCSO Act, he shall be released on bail forthwith, subject to his furnishing personal bond in the sum of Rs.25,000/- (rupees twenty five thousand) with one surety in the like amount to the satisfaction of learned Trial Court. The bail is granted subject to the following conditions:

(i) That the petitioner will appear before the learned Trial Court as and when required.

(ii) That the petitioner will not leave India without prior permission of the Court.

(iii) That the petitioner will 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 the Investigating Officer or Court.

In view of the above, the petition is disposed of. Copy dasti.