Neeraj vs State of H.P.

Dharam Chand Chaudhary, J.—Petitioner is an accused in FIR No. 136 of 2013, registered against him under Sections 363, 366 and 376 of the Indian Penal Code in Police Station, Theog, District Shimla. He has been arrested on 27.12.2013 and presently is in judicial custody.

The Police has filed the report u/s 173 Cr. P.C. against him and the case stands committed to the Sessions Court. The same presently is at the stage of consideration of charge.

The accused-petitioner has been booked in the case with the allegations that he kidnapped the prosecutrix (name withheld), a minor girl, from her lawful guardianship at the pretext of solemnization of marriage with her intentionally and knowing fully well that she will be subjected to sexual intercourse and allegedly ravished her sexually.

The accused-petitioner and prosecutrix ran away from the house on 4th October, 2013. The report of her missing from the house was lodged on 6th October, 2013 by Shri Devender Verma, her father. She was recovered from village Slaich, P.O. Kotlabaghi, Tehsil Rajgarh, District Sirmaur on 27.12.2013 from the house of one Surinder Kumar, where, they both were working as domestic servants. In between the period from 4th October, 2013 till the recovery of the prosecutrix, they traveled from place to place and lived at different places, sometimes in forests also. In her statement recorded by the I.O., she has not implicated the accused, particularly with the commission of the sexual intercourse with her. In her statement recorded by Additional Chief Judicial Magistrate, Theog, on the same day also, she did not implicate the accused-petitioner, particularly with respect to the commission of sexual intercourse with her. Her custody was entrusted to her father on the same day and it is thereafter another statement has been recorded by the police, in which she implicated the accused-petitioner with the commission of the offence punishable u/s 376 IPC. The investigation in the case is complete except for obtaining reports from the Forensic Science Laboratory.

Challan against the accused-petitioner stands filed, which, according to the learned counsel representing the accused petitioner, was filed on the 91st day. Anyhow, the application u/s 167(2) Cr. P.C., seeking the bail in default, stands dismissed by learned Additional Chief Judicial Magistrate, Theog vide order Annexure A-4, which has not been assailed except for filing an application u/s 439 Cr. P.C. for the grant of bail in the trial Court. The same also stands dismissed vide order Annexure A-3. In this petition also, the plea with regard to the indefeasible right of the accused-petitioner of being released on bail on the failure of the police to file the report u/s 173 Cr. P.C., within the period of 90 days, has been raised, however, not pressed as stated by learned counsel for the accused petitioner at the bar.

This application therefore has been considered independent to the claim of the grant of bail in default, and is being decided on merits. The prosecutrix, of course, seems to be a minor, however, the evidence available at this stage and briefly discussed hereinabove, disclosed two views possible with regard to the commission of the offence punishable u/s 376 IPC.

On the other hand, it appears that the prosecutrix and the accused had intimacy with each other. They rather were studying in the same class and the same school. The accused-petitioner is also 19 years of age. The accused-petitioner seems to be not an influential person, so as to in a position to tamper with the prosecution evidence or terrorize the prosecution witnesses. He is also a local resident of Tehsil Theog, District Shimla, hence there is no likelihood of his fleeing away from justice and non-availability at the time of trial.

Having regard to the given facts and circumstances and also the material available on record coupled with the factum that further detention of the accused-petitioner a teenager with hardened criminals in the jail is likely to affect his career adversely and that the present is not a case where the accused-petitioner should be detained in custody by way of punishment well before he is held guilty by the competent Court, after holding full trial, he deserves to be admitted on bail. Therefore, this application is allowed. Consequently, the accused-petitioner, who has been arrested in connection with the case registered against him vide FIR No. 136/13 in Police Station, Theog, District Shimla, shall be released on bail, subject to his furnishing personal bond in the sum of Rs. 25,000/- (twenty five thousand) with one surety in the like amount to the satisfaction of learned trial Court. The accused-petitioner shall further abide by the following conditions:-

That he;

a. 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, which learned trial Court shall decide in accordance with law;

b. shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c. shall not 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 Court or the Investigating Officer;

d. shall not leave the territory of India without the prior permission of the Court.

It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him; the Investigating Agency shall be free to move this Court for cancellation of the bail.

The observations hereinabove shall remain confined to the disposal of this petition and have no bearing on the merits of the case. The application stands disposed of.