Narveer vs State Of H.P. & Others

Satyen Vaidya, J

Petitioner is an accused in case FIR No. 42 of 2022, registered at Women Police Station, Baddi, District Solan, H.P. under Sections 363, 366 and 376 of IPC along with Section 6 of POCSO Act.

On 16.12.2022, the mother of victim reported at Women Police Station, Baddi, District Solan, H.P. that the victim aged about 17 years had been kidnapped by the petitioner on 4.12.2022 with the intent to marry her. Police registered the case vide above noted FIR. Petitioner was arrested on 16.12.2022. He is in custody since then.

It is contended on behalf of the petitioner that the victim is major and her date of birth is 1.1.2001. Petitioner and the victim both were working together with Sh. Balaji Enterprises Pvt. Limited at Baddi for the last about two years and both of them intended to marry each other. They had a love affair, which was not acceptable to the family of the victim. It is further submitted that the petitioner and the victim solemnized marriage on 5.12.2022 and resided as husband and wife till registration of FIR on 16.12.2022. As per petitioner, the family of respondent is against his marriage with victim as both of them belong to different religion.

Per contra, the status report filed on behalf of the State reveals that during investigation, it has been found that the date of birth of victim is 1.6.2005 and she is still minor. The investigating agency is relying upon the school record obtained from Government Primary School, Virampur, District Badayun, Uttar Pradesh. The factum of marriage having taken place between the petitioner and victim has not been denied. The respondent has opposed the bail application on the ground that the petitioner is involved in a serious offence and in case of his release on bail, he may tamper with the prosecution evidence.

I have heard learned counsel for the parties and have also gone through the record carefully.

On 7.2.2023, learned Vacation Judge had passed the following orders:-

“Status report filed.

Learned counsel for the petitioner states that as per the Aadhar Card of the victim, her date of birth is 01.01.2001 and she has already married with the accused and he has also annexed the copy of Aadhar Card of the victim, marriage certificate and photographs alongwith the petition.

Learned Additional Advocate General states that the victim is at present lodged in Nari Niketan, Chandigarh.

Therefore, before passing any further order in the present case, the State is directed to produce the victim before this Court on 14.2.2023.”

In pursuance to above noted order dated 7.2.2023, the victim was produced today before this Court by Ms. Deep Rana, Superintendent, Nari Niketan, Sector 26, Chandigarh along with LC Usha Yadav and ASI Veerwati of Chandigarh Police. The victim verified the factum of having married the petitioner of her own volition. The Superintendent, Nari Niketan, Sector 26, Chandigarh also submitted on record a copy of OPD Card in respect of the victim, issued by Government Multiple Speciality Hospital, Sector 16, Chandigarh, according to which, the victim is now carrying pregnancy of about twelve weeks.

Perusal of investigating record also reveals that the statement of victim was recorded under Section 164 Cr.P.C. by learned Additional Chief Judicial Magistrate, Nalagarh on 17.12.2022. In the said statement also, the victim had not stated anything incriminating the petitioner. She had expressed her willingness to reside with petitioner.

The documents on record reveal different dates of birth in respect of the victim. As per the school record of Government Primary School, Virampur, District Badayun, Uttar Pradesh, the victim was about 17 years and seven months old at the time of commission of offence, whereas as per Aadhar Card her date of birth is 1.1.2001. In another Aadhar Card, her date of birth is shown as 1.1.2005. In these circumstances, the age of victim is a disputed question of fact, which is required to be decided during trial. In any case, the victim was having age of sufficient maturity so as to understand the consequence of her acts. As noticed above, she has repeatedly reiterated her resolve to reside with petitioner. The victim is also carrying a pregnancy of about three months now.

It is further noticed that the petitioner and the victim have also approached the Hon’ble High Court of Punjab & Haryana on more than one occasion. In the first instance, Cr.WP No. 11283 of 2022 was preferred, which was disposed of by learned Single Judge of Hon’ble High Court of Punjab & Haryana on 2.12.2022 in following terms:-

“In view of the limited prayer made by learned counsel for the petitioners and without expressing anything on the merits and claim of the parties, respondent No.2-Assistant commissioner of Police, Panchkula, is directed to depute a senior officer to look into the matter and after seeking a report, he may pass an appropriate orders, in accordance with law.

The parties mentioned in the petition or any other person mentioned in the petition shall be at liberty to take recourse to appropriate law, if any.

With these observations, this petition is disposed of.”

Another Cr.WP No. 11980 of 2022 is stated to be pending before Hon’ble Punjab & Haryana High Court, in which the following order was passed on 21.12.2022:-

“In compliance of last order, the Assistant commissioner of Police, Kalka, respondent No.2 is present in the Court and he produced the detenue namely Shsta before this Court. He submits that another detenue namely Narveer is confined in Jail at Shimla and consequently he could not be produced before the Court.

I have interacted with the alleged detenue namely Shgashta, who is aged about 21 years as per Aadhar Card annexed with the present petition. She also submits that she is major and had performed marriage with Narveer. She also states that she had filed a petition before this Court with a prayer to direct respondents No. 2 and 3 to protect her life and liberty and of her husband as well. She further states that she is legally wedded to Narveer son of Sh. Hari Om and does not want to go with her parents till her husband is released from the custody. Consequently, the custody of the alleged detenue namely Shashta is handed over to SI Vijay Kumar, AHTU, Chandigarh police, who is present in the court who will take her to Nari Niketan, Chandigarh and she will be lodged there till the next date of hearing.

Adjourned to 24.01.2023.

On the adjourned date, the Superintendent/ Incharge of Nari Niketan, Chandigarh is directed to produce her before the Court.”

It is in the above background that the victim is still in the care and custody of Nari Niketan, Sector 26, Chandigarh, from where she was produced before this Court today.

Petitioner is in custody since 16.12.2022. The investigating agency after completion of investigation has already filed the report under Section 173 (2) in the Court of learned Special Judge, Nalagarh. The apprehension of the State that the release of petitioner on bail may entail tampering with the prosecution evidence appears to be without substance as no tangible material has been placed to substantiate the same. No criminal antecedents have been attributed to the petitioner. It is also not the case of respondent-State that the petitioner will not be available for trial in case he is released on bail.

Petitioner is permanent resident of Village Khokhar, Navanagar, District Panchkula, Haryana and there is nothing on record to suggest that he is likely to flee from the course of justice.

Pre-trial incarceration is not the rule. No fruitful purpose shall be served by allowing the petitioner to be detained in custody till completion of trial, which is likely to take considerable time. The only concern of this Court at this stage is to ensure fair and speedy trial, for which necessary conditions can be imposed.

In view of given facts and circumstances of the case, petition is allowed and the petitioner is ordered to be released on bail in case FIR No. 42 of 2022, registered at Women Police Station, Baddi, District Solan, H.P. under Sections 363, 366 and 376 of IPC along with Section 6 of POCSO Act, 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. This order shall be subject to following conditions:-

i) That the petitioner shall regularly appear before learned trial Court on each and every date of hearing.

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 from disclosing such facts to the Court or to the Police.

iii) That the petitioner shall not in any manner tamper with the prosecution evidence.

iv) That any indulgence of petitioner in criminal activities during the continuance of this order shall entail cancellation of the bail granted to the petitioner.

v) That the petitioner shall not leave India till conclusion of trial without permission of the learned trial Court.

vi) That in case of violation of any of the conditions, the bail granted to the bail applicant shall be liable to be cancelled.

Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.