Om Prakash vs State Of Himachal Pradesh

Chander Bhusan Barowalia, J

The matter is taken up through video conference.

The present bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release in case

FIR No. 30 of 2020, dated 17.08.2020, under Section 376AB IPC and Section 6 of the POCSO Act, registered in Women Police Station Baddi,

District Solan, H.P.

As per the averments made in the petition, the petitioner is innocent and has been falsely implicated in the present case. He is neither in a position to

tamper with the prosecution evidence nor in a position to flee from justice. No fruitful purpose will be served by keeping him behind the bars for an

unlimited period, so he be released on bail.

Police report stands filed. As per the prosecution story, on 17.08.2020, complainant, who is mother of the prosecutrix (names withheld), alongwith

Smt. Anita Sharma, Project CoÂordinater Child Line, Solan, made a complaint to the police, wherein she alleged that she, alongwith her husband and

two daughters, resides in a hut near Hotel Vimal. The complainant has further alleged that her elder daughter is eight years old and younger is two

years old. Complainant used to work in a company and usually returns home near 09:00 p.m.. She has further stated that her husband (petitioner

herein) is an alky and her elder daughter (prosecutrix/victim) divulged that for the last three days the petitioner is galling her. The prosecutrix has

further divulged to the complainant that the petitioner used to insert his genital organ in her mouth. Upon the complaint, so made by the complainant,

police registered a case and the investigation ensued. Statements of the prosecutrix and that of the complainant were recorded under Section 161

Cr.P.C. The prosecutrix was medically examined and the medical officer opined that there is no evidence of sexual intercourse and injury on the

person of the prosecutrix. The petitioner was arrested and medically examined. Statement of the prosecutrix was recorded under Section 164 Cr.P.C.

Police visited the spot, prepared the spot map, recorded the statements of the witnesses and clicked photographs. Police also made the apt recoveries.

As per the police, after completion of investigation, challan stands presented in the learned Trial Court. Forensic analysis report rules out the

intercourse. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner was found involved in a serious offence, there is

anger in the society against the petitioner and there is possibility that in case at this stage he is enlarged on bail, he may flee from justice or tamper

with the prosecution witnesses.

I have heard the learned Counsel for the petitioner, learned Deputy Advocate General for the State and gone through the record, including the

police report, carefully.

The learned Counsel for the petitioner has argued that the petitioner has been falsely implicated in the present case. He has further argued that the

petitioner is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. He has further argued that no fruitful

purpose will be served by keeping the petitioner behind the bars for an unlimited period, especially when investigation is complete, challan stands

presented in the learned Trial Court and custody of the petitioner is not at all required by the police, so the bail application may be allowed and the

petitioner be enlarged on bail. Conversely, the learned Deputy Advocate General has argued that the petitioner was found involved in a serious

offence. He has further argued that in case the petitioner is enlarged on bail, at this stage, he may flee from justice, as he is resident of Uttar Pradesh

or tamper with the prosecution evidence. He has prayed that the bail application of the petitioner be dismissed.

In rebuttal the learned Counsel for the petitioner has argued that the petitioner is behind the bars for the last more than three and half months and

cannot be kept behind the bars for an unlimited period, especially when investigation is complete, challan stands presented in the learned Trial Court

and the fact that the custody of the petitioner is not at all required by the police, so the application be allowed and the petitioner be enlarged on bail.

At this stage, considering the facts that the investigation in the case is complete, challan stands presented in the learned Trial Court, custody of the

petitioner is no at all required by the police, also considering the relationship of the petitioner with the prosecutrix, the fact that the petitioner is neither

in a position to tamper with the prosecution evidence nor in a position to flee from justice, the fact that the petitioner cannot be kept behind the bars for

an unlimited period, especially when investigation in the matter is completed, nothing remains to be recovered at the instance of the petitioner, scientific

evidence does not suggest possibility of sexual intercourse with the prosecutrix, the fact that the petitioner is ready and willing to abide by the terms

and conditions of bail, in case granted, considering the overall material, which has come on record, and without discussing the same at this stage, this

Court finds that the present is a fit case where the judicial discretion to admit the petitioner on bail is required to be exercised in his favour.

Accordingly, the petition is allowed and it is ordered that the petitioner, who has been arrested by the police in case FIR No. 30 of 2020, dated

17.08.2020, under Section 376AB IPC and Section 6 of the POCSO Act, registered in Women Police Station Baddi, District Solan, H.P., shall be

released on bail forthwith in this case, subject to his furnishing personal bond in the sum of `50,000/Â (rupees fifty thousand) with one surety in the like

amount to the satisfaction of the learned Trial Court. The bail is granted subject to the following conditions:

(i) That the petitioner will appear before the learned Trial Court/Police/authorities as and when required.

(ii) That the petitioner will not leave India without prior permission of the Court.

(iii) That the petitioner 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 Court.

(iv) That the petitioner will not visit the residence of the complainant and the victim, meet and talk with the complainant and the victim and threaten

them, in any manner, whatsoever, and in case he does so or even tries to do so, the bail of the petitioner will be liable to be immediately cancelled

without reference to this Court and the effect of the bail granted to him by this Court will be neutralized.

The above condition No. (iv) is imposed keeping in view of the relationship of the petitioner and the victim, i.e., father and daughter, respectively.

In view of the above, the petition is disposed of.

Copy dasti.