Janak Raj vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner has approached this Court, invoking provisions of Section 439 Cr.P.C., seeking regular bail in case FIR No. 112 of 2021, dated 16.7.2021, registered under Sections 363, 366A and 376 of Indian Penal Code 1860 (in short ‘IPC’) and Section 4 of Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’) in Police Station Jawali, District Kangra, H.P.

Status report stands filed. Record was also made available.

Prosecution case in brief is that father of the victim lodged a complaint, on 16.7.2021, with the police that on 15. 7.2021 his daughter had left the house at 12 p.m. (noon) to visit her Aunt (mausi) living in Gangath but she did not reach there. The complainant alongwith others did not find her despite making inquiries at their own level but could only know that his daughter had alighted from the bus at Bharmad and, therefore, had boarded another bus towards Jassur. It was suspected by the complainant that somebody, by alluring her for marriage, had abducted her.

On the basis of the aforesaid complaint, FIR under Sections 363 and 366 IPC was registered. During investigation, call detail record of mobile number, being used by the victim, was obtained and it was found that on 15.7.2021 there were 15 conversations of victim on a mobile number. On the basis of location of the said phone, police reached native place of the petitioner where it was revealed that though SIM of the phone was in the name of Suman but it was being used by petitioner Janak Raj. However, Janak Raj and victim were not found in his home.

On inquiry, younger sister of petitioner Janak Raj informed that petitioner Janak Raj had taken the prosecutrix to Delhi on 15.7.2021 and thereafter petitioner was not in contact with the family. She was not knowing about the address of the petitioner at Delhi. In between, on 28.7.2021, victim made a video call to her mother. On the basis of the said call, location of victim was found to be Hossur in Tamil Nadu but phone was found to be switched off after the video call. On 5.8.2021, location of said mobile phone was again found that at Hossur in Tamil Nadu whereupon on 8.8.2021 Sub Inspector alongwith team proceeded to Hossur (Tamil Nadu) and on 11.8.2021, on the basis of location traced, they reached in a quarter but there they came to know that victim and petitioner had vacated the quarter. Therefore, police party interrogated Sunny, brother of the petitioner available there, who disclosed that petitioner was there on 9.8.2021 but he had left for Delhi. He had also shown photocopy of train tickets. He further gave information that his brother (petitioner) was working with New Mahavir Transport in Pahadganj, New Delhi.

Police party reached New Delhi on 13.8.2021 and traced petitioner Janak Raj in his quarter where victim was also there. Victim was handed over to lady constable and thereafter, to her parents and petitioner Janak Raj was brought to Jawali.

Finding complicity of the petitioner in commission of the offence reported, he was arrested on 14.8.2021.

Petitioner had earlier approached learned Special Judge, FTC, under POCSO Act, Kangra at Dharamshala by filing Bail Application No. 635 of 2021 but the said application was dismissed as withdrawn on 23.10.2021.

Petitioner had also approached this Court by filing Cr. MP(M) No. 2427 of 2021 which was dismissed as withdrawn on 6.1.2022.

During investigation, on 15.8.2021, statement of victim was also recorded under Section 164 Cr.P.C before learned Additional Chief Judicial Magistrate, Nurpur, wherein she had stated that they (petitioner and victim) were well acquainted with each other since last 2 – 2 ½ years and they had solemnized marriage in a temple in Bangalore but she forgot the name of the temple. After marriage they took room on rent at Hossur and lived there like husband and wife for 15 – 16 days and, thereafter, came back to Delhi. Further that, she had solemnized marriage of her own volition and petitioner was at no fault, and before marriage also physical relations were developed between them and petitioner had not harassed or tortured her in any manner and she was and is happy with petitioner.

As per prosecution case, petitioner and victim came in contact with each other through Facebook and petitioner was intending to marry the victim and he had come home during month of June and was in continuous touch with victim on mobile, and on 15.7.2021 after having telephonic conversation, they decided to meet at Nurpur where petitioner came on his motorcycle and took the victim on his motorcycle to Lakhanpur and therefrom he took her to Delhi and kept her in his quarter for four days where he had violated the victim and therefrom he alongwith the victim went to Hossur (Tamil Nadu) and solemnized marriage with victim and continued copulation.

Learned counsel for the petitioner has submitted that it is a case of love affair between the petitioner and the victim, and both of them decided to marry each other and left their respective places to live together, and incident in present case is not of child abuse or human trafficking, but an incident of collective decision of the victim and the petitioner to marry each other, but for the age of the victim it has become an offence. It has further been contended on behalf of the petitioner that petitioner did not hide anything from anybody nor victim as when police raided the native house of the petitioner, his younger sister had disclosed about the fact that petitioner and victim had gone to Delhi and not only this at Hossur (Tamil Nadu) brother of the petitioner had supplied address and whereabouts of the petitioner and on the basis of that only, petitioner and victim were traced in the quarter of petitioner at Delhi. It has been further pointed out that it has come on record that after eloping victim had conversation with her mother on video call wherein she talked to her mother but did not complain any ill treatment by the petitioner or anything else causing problem to her and, therefore, it is a case where it was known to the mother of the victim that with whom and to where the victim had left the house.

Learned counsel for the petitioner has submitted that for enlargement of the petitioner on bail and ensuring his presence in trial, petitioner is ready to furnish local surety bonds also.

From the contents of status report and facts of prosecution case, as well as disclosure by petitioner and statement made by the victim, it is apparent that petitioner and victim had travelled from Nurpur to Lakhanpur (J&K) on motorcycle and then from Lakhanpur to Delhi in bus wherefrom they went to Hossur (Tamil Nadu), solemnized marriage, came back to Delhi and were living together as husband and wife after solemnizing marriage at Bangalore. It has also come on record that before the incident petitioner and victim were in constant touch with each other and the said fact appears to be in the knowledge of the mother of victim. Despite all this, the fact remains that victim is minor and for her age, her consent may not be material for launching or not launching prosecution against the petitioner in the present case. However, entire circumstances are to be appreciated by the trial Court on the basis of evidence produced before it during trial. Therefore, without commenting upon the merits of the case, in the facts and circumstances, narrated in the status report, statement of the victim as well as conduct and manner in which petitioner has acted during alleged commission of offence, I am of the considered opinion that at this stage petitioner may be enlarged on bail.

In view of above, petitioner is ordered to be released on bail in case FIR No.112 of 2021, dated 16.7.2021, registered in Police Station Jawali, District Kangra, H.P., on his furnishing personal bond in the sum of Rs.50,000/- with one local surety in the like amount, as undertaken, to the satisfaction of trial Court, within two weeks from today, subject to following conditions:-

(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. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iii) that he shall not obstruct the smooth progress of the investigation/trial;

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

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

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

(vii) that he shall keep on informing about the change in address, landline number and/or mobile number, if any, for his availability to Police and/or during trial;

(viii) He shall not leave India without permission of the Court.

It will be open to 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.

In case the petitioner violate any conditions 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.

Learned 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 herein before shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.

The petitioner is permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.

The petition stand disposed of in the aforesaid terms.