Joginder Singh vs State Of Himachal Pradesh

Virender Singh, J

Applicant-Joginder Singh, apprehending his arrest, has filed the present application, under Section 438 of the Code of Criminal Procedure (hereinafter referred to as ‘CrPC’).

It has been prayed in the application that the Police/Investigating Officer of Police Station Rohru, District Shimla, may kindly be directed to release the applicant, on bail, in the event of his arrest, in case FIR No. 171 of 2023, dated 8th October, 2023, registered with Police Station Rohru, District Shimla, under Sections 354D, 506, 436 IPC and Section 8 of the Prevention of Children from Sexual Offences Act (hereinafter referred to as ‘POCSO Act’).

According to the applicant, he is a law abiding citizen and has falsely been implicated, in this case, at the instance of the complainant. The husband of the complainant is stated to be under contractual obligation to pay the money to the applicant for assigning the contract of grading and packaging of the apples of their orchards.

As per the applicant, he is having no criminal antecedent and having deep roots in the society.

The applicant has also tried his luck by moving the bail application,before the Court of learned Additional Sessions Judge, Fast Track Special Court (POCSO), Shimla, however, his application has been dismissed, vide order, dated 19th October, 2023.

The applicant has also given certain undertakings, for which, he is ready to abide by, in case, directions are issued, under Section 438 CrPC, to the police.

On the basis of the above facts, learned counsel appearing for the applicant, has prayed that the bail application may kindly be allowed.

On 31st October, 2023, when this bail application was taken up, the State was directed to file the status report, upon which, the status report was filed, disclosing therein, that on 8th October, 2023, mother of the child victim appeared before the police, alongwith her husband and the child victim and moved the complaint, mentioning therein, that she is resident of the address, as mentioned in the complaint. She has solemnized her marriage in the year 2009 and has been blessed with a daughter (child victim), aged about 13 years.

8.1. On the day, i.e. 8th October, 2023, according to the complainant, she was working in the orchard and her husband had gone to Rohru. Her in-laws had also gone to orchard to bring fodder to the cattle. The child victim was all alone at home. At about 12.00 in the noon, when, she came back, then, she noticed her mother-in-law, child victim, and Joginder (applicant) at her house. The child victim was found to be frightened. When inquired by the complainant, she has disclosed that applicant-Joginder came to their house, when, she was all alone. When, the child victim had come inside the room, the applicant also entered the room and touched her inappropriately.

8.2. According to the complainant, the child victim disclosed that the applicant lifted the child victim four times in his lap and done the obscene acts. When, the complainant inquired this fact from the applicant, he has partially admitted the incident.

8.3. On the basis of these facts, the complainant has requested to take action against the accused (applicant), upon which, the police registered the FIR and the criminal machinery swung into motion.

After perusing the said status report, on 31st October, 2023, interim protection was granted to the applicant with a direction to join the investigation and the matter was adjourned for today.

Today, the police has filed the supplementary status report, disclosing therein, that on 9th October, 2023, statement of the child victim was got recorded, under Section 164 CrPC. The statements of the witnesses were recorded on 1st November, 2023 and on 2nd November, 2023, the applicant has joined the investigation.

As per the supplementary status report, the identification of the applicant could not be done through the child victim, as, when, her father was contacted, it has been disclosed that she is studying at Shimla.

It has been apprehended in the supplementary status report, that in case, interim order is made absolute, the applicant may coerce the witnesses. It has also been stated in the status report that there is resentment in the area, due to the alleged act of the applicant.

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

Heard.

Pursuant to the directions of this Court, the applicant has joined the investigation. Moreover, the police is not able to make out a case for custodial interrogation of the applicant.

Merely, on the ground, that there is resentment in the area, due to the alleged act of the applicant and that in case, the interim order is made absolute, he may coerce the witnesses, the bail application cannot be rejected, as a matter of punishment, as pre-trial punishment is prohibited under the law.

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

The applicant has put forward, in this case, the animosity between the father of the child victim and the applicant. At the time of deciding the bail application, the detailed discussion about the merits and de-merits of the case should be avoided, as, it may affect the case of the prosecution or the accused (applicant).

When, the status report is totally silent about the custodial interrogation of the applicant, then, the application cannot be dismissed, merely on the ground that the identification of the accused has not been done.

Considering all these facts, this Court is of the view that the interim protection, which has been granted to the applicant, vide order, dated 31st October, 2023, is liable to be confirmed.

Consequently, interim order, dated 31st October, 2023, is made absolute. Therefore, it is ordered that the applicant be released on bail, in the event of his arrest, in case FIR No. 171 of 2023, dated 8th October, 2023, registered with Police Station Rohru, District Shimla, under Sections 354D, 506, 436 IPC and Section 8 of the POCSO Act, on his furnishing personal bonds, to the tune of Rs. 30,000/-, with one surety of the like amount, to the satisfaction of the Investigating Officer. The bail is granted, subject to the following conditions:

a) That the applicant will join the investigation of the case, as and when, called for, by the Investigating Officer, in accordance with law;

b) That the applicant will not leave India, without prior permission of the Court;

c) That the applicant 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 the Court; and

d) That the applicant shall 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;

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.

The applicant is directed to move regular bail application, when charge sheet will be filed in the Competent Court of Law.

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.