Kamal Kishore Alias Kabbu vs State Of Himachal Pradesh

Ajay Mohan Goel, J

By way of this petition, a prayer has been made for release of the petitioner on bail in case F.I.R. No.78/2019, dated 13.04.2019, registered against him at Police Station Sarkaghat, District Mandi, H.P., under Sections 376, 363 of the Indian Penal Code (hereinafter referred to 'IPC' for short) and Section 4 of the Protection of Children from Sexual Offences (hereinafter referred to 'POCSO' for short) Act.

Learned counsel for the petitioner has submitted that the F.I.R. was lodged on 13.04.2019. Petitioner was taken into custody on 29.04.2019 and since then he is in custody. He submits that petitioner is innocent and is not guilty of the offences alleged against him. He has further argued that at the time of alleged occurrence of the incident, the petitioner was only 19 years old. He is a student and local resident of Tehsil Sarakaghat, District Mandi, H.P. His entire family is residing in Tehsil Sarkaghat, District Mandi, H.P. He further stated that though the allegations alleged against the petitioner are grievous, but fact of the matter is that the petitioner is not guilty of the allegations which stand levelled against him, which is also evident from the statement of the victim, which stands recorded by the Investigating Officer on 18.04.2019. He further submitted that as the petitioner is a young boy, his career will be adversely affected in case he is kept in judicial custody. He argued that whether or not the petitioner is guilty of the offences alleged against him, is a matter of trial and in case petitioner is found guilty, then the Law will take its own course, but, at this stage, no purpose will be served by retaining the petitioner in custody as nothing is to be recovered from him nor there is any possibility that in the event of his being released on bail, he shall evade the trial or shall try to influence the same.

Learned Deputy Advocate General has strongly opposed the bail petition. She submits that the allegations levelled against the petitioner are extremely grievous and heinous. She further submits that the statement of the victim given before the Investigating Officer, cannot be taken into consideration by this Court while deciding the present petition. She further submits that as the petitioner is local resident of the area, there is possibility that in the event of his being released on bail, he may try to tamper with the evidence or to win over the witnesses. Accordingly, she submits that the petition be dismissed.

I have heard learned counsel for the parties and have gone through the documents appended with the petition as well as status report, which has been filed by the State.

The F.I.R. in issue stood lodged by Shri Lal Singh, father of the victim, on the ground that his minor daughter was found missing after she had gone on 12.04.2019 at about 2:30 p.m., to visit her sister and thereafter her whereabouts could not be located despite best efforts made by him. As per the complainant, he apprehended that it was the petitioner who had kidnapped his minor girl under whose influence, his daughter had eloped.

Record demonstrates that at the time of the alleged commission of the offence, the age of the victim was 16 years and four months. It is not in dispute that the age of the petitioner at that time was about 19 years. The girl, as per the police, subsequently stood recovered from the house of the petitioner.

Be that as it may, it is a matter of record that after the lodging of the F.I.R. on 13.04.2019, the petitioner is in custody since 19.04.2019. As of now, the investigation stands completed and challan has been filed by the police in the appropriate Court.

No doubt, the offences alleged against the petitioner are grievous, but this Court cannot loose sight of the fact that whereas the victim was about 16 years and 4 months of age at the time of the alleged commission of the offence, the petitioner was about 19 years old. Petitioner is stated to be a student. As the investigation stands completed, but obvious, no recovery etc. is to be made from him.

Taking into consideration the totality of the factual matrix in which the offence is alleged to have been committed as well as the age of the petitioner, in my considered view, no purpose will be solved by retaining the petitioner in custody. If the petitioner is guilty of the offences alleged against him, then but obvious, law will take its own course. However, detaining the petitioner in custody during the course of the trial, may be detrimental to his career especially keeping in view his age as well as the fact that he is a student. Another fact which is relevant to be mentioned at this stage is that the State has informed the Court that petitioner does not has any previous criminal history and there is no previous allegation against the petitioner akin to the one levelled in the present F.I.R. or otherwise. w

As far as the apprehension expressed by the State, of the petitioner trying to influence the trial or to win over the witnesses is concerned, the same can be taken care of by the Court by imposing stringent conditions upon the petitioner. The State shall also be at liberty to approach this Court by filing appropriate application in this petition itself for the cancellation of bail in case at any stage the petitioner tries to win over any of the witnesses or tries to influence the course of the trial.

Accordingly, this petition is allowed, by ordering the release of the petitioner on bail in case F.I.R. No.78/2019, dated 13.04.2019, registered against him at Police Station Sarkaghat, District Mandi, H.P., under Sections 376, 363 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences, on his furnishing personal bond in the sum of Rs.50,000/­ with one surety in the like amount to the satisfaction of the learned Trial Court, subject to the following conditions:­

i) Petitioner shall 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;

ii) He shall not tamper with the prosecution evidence;

iii) He shall not make any inducement, threat or promise to any person acquainted with the facts of the case; and

(iv) He shall not leave the territory of India without prior permission of the Court.

It is clarified that the findings which have been returned by this Court while deciding this petition are only for the purpose of adjudication of the present bail application and learned trial Court shall not be influenced by any of the findings so returned by this Court in the adjudication of this petition during the trial of the case. It is further clarified that in case the petitioner does not complies with the conditions which have been imposed upon him while granting the present bail, the State shall be at liberty to approach this Court for the cancellation of the bail. The petition stands disposed of in the above terms.