Pyar Chand vs State Of Himachal Pradesh

Anoop Chitkara, J

The petitioner, who is under arrest, on being arraigned as an accused in FIR number 106/2019 dated 8.11.2019, registered under Sections 366, 376

of Indian the Penal Code, 1860, in the file of Police Station, Janjehli, District Mandi, H.P., disclosing non-bailable offences, has come up before this

Court under Section 439 of the Code of Criminal Procedure, seeking regular bail.

Status report stands filed. I have seen the status report(s) as well as the Police report under Section 173(2) CrPC, to the extent it was necessary

for deciding the present petition, and heard learned Counsel for the parties.

FACTS

The gist of the First Information Report and the investigation is that on 8.11.2019, the complainant made a complaint to Police Station, Janjehli,

District Mandi, stating therein that the victim, who is his daughter aged 20 years, is missing from 4.11.2019. He further stated that despite freak

searches, she could not be traced. He further stated that perhaps some unknown person had allured her and taken her away. Consequently, the Police

registered FIR under Section 366 IPC. During investigation, on 11. 11.2019, the Police recovered the victim from Bus Station, Bilaspur. After that, the

Police recorded the statement of the victim who stated that for the last two months, she was in contact with one Manish Gautam Khatri, through

facebook. After that, they started talking to each other on telephone and the said Manish Gautam Khattri told her that he loves her and wanted to

marry her. On 4.11.2019, he called her on telephone and asked her to visit his home at Bilaspur. She decided to meet him in Bilaspur and on reaching

the Bus Stand, the said Manish Gautam Khattri met her there and took her to his house at Kosaria in Bilaspur. His parents were present at home and

they asked him that who was that girl, on which, he asked them to leave the home. The parents of Manish Gautam Khatri lives separately from him.

Subsequently, he took her in a room, where two children were sleeping. He told her that these two children belong to him and his wife has expired.

Prior to this, Manish Gautam Khattri never disclosed him of his having two children and his wife having been expired, rather he told that he is alone.

After that, Manish Gautam Khatri made her sleep in the same room. After that, Manish Gautam Khattri forcibly committed sexual intercourse with

her. On the next day, he also indulged in forcible coitus with her. On 6.11.2019, the victim menstruated and thus she slept separately. She further

stated that she stayed in his house till 10.11.2019 and then she did not feel appropriate to stay with him because he was married and having two

children, as such, she left for her house.

Subsequently, the police party also complied with the procedural requirements under the CrPC and arrested the petitioner.

ANALYSIS AND REASONING:

The victim is a grown up 20 years woman. On the day one, when the petitioner asked her to spent night in his house, she was fully aware of the

fact that he was a married person having two children. Despite that, she preferred to stay in his house and slept with him in his room. On 15.11.2019,

the victim got identified him as the bail petitioner Pyar Chand and stated that he had committed sexual intercourse with her. She further made a

supplementary statement on 14.11.2019, in which she stated that Pyar Chand met her in Bilaspur Bus Stand and took her away. Initially the allegations

were made against some Manish Gautam Khattri and subsequently adverted against Pyar Chand, the present bail petitioner, which at least makes out

a case for bail.

Pre-trial incarceration needs to be justified depending upon the heinous nature of the offence, terms of the sentence prescribed in the Statute for

such a crime, accused fleeing from justice, hampering the investigation, and doing away with witnesses. The Court is under the Constitutional

obligation to safeguard the interests of the victim, the accused, the society, and the State. The material so far collected, to convict the accused with the

alleged occurrence if it actually happens, still is not enough to deny him bail.

Given the above reasoning, in my considered opinion, the judicial custody of the petitioner/accused is not going to serve any purpose whatsoever,

and I am inclined to grant bail on the following grounds, but subject to stringent conditions:

a) The report under Section 173(2) CrPC stands filed.

b) The petitioner/accused is in judicial custody since 16.11.2019.

c) The petitioner is a permanent resident of the address mentioned in the memo of parties, as such presence can always be secured.

d) The petitioner has no criminal history.

Consequently, the present petition is allowed. The petitioner/accused shall be released on bail in the present case, in connection with the FIR

mentioned above, on his furnishing personal bond in the sum of INR 10,000/- (Rupees ten thousand) with two sureties in the like amount, to the

satisfaction of the learned Trial Court/Chief Judicial Magistrate/Addnl. Chief Judicial Magistrate or any Judicial Magistrate of District Mandi, HP.

The Court executing the personal and surety bonds shall ascertain the identity of the bail-petitioner, his family members, and of sureties, through

AADHAR Card, Pan Card, Ration Card, etc. The petitioner shall mention phone numbers and other details, on the reverse page of the bonds.

The Counsel for the accused and the attesting official shall explain all conditions of this bail to the petitioner.

This Court is granting the bail, subject to the conditions mentioned herein. The petitioner/accused undertakes to comply with all directions given in

this order, and the furnishing of bail bonds by the petitioner/accused is acceptance of all such conditions:

(i) The petitioner shall appear before the Court which issues the summons or warrants, and shall furnish fresh bail bonds to the satisfaction of such

Court, if such Court directs to do so.

(ii) The petitioner undertakes to attend the trial.

(iii) The petitioner shall join the investigation as and when called by the Investigating Officer. However, whenever the investigation takes place within

the boundaries of the Police Station or the Police Post, then the accused shall not be called before 9 AM and shall be let off before 5 PM.

(iv) The petitioner shall co-operate in the investigation.

(v) The petitioner shall not hamper the investigation.

(vi) The petitioner undertakes not to threaten or browbeat or use any pressure tactics on the victims, complainant, and witnesses.

(vii) The petitioner shall neither influence nor try to control the investigating officer, in any manner whatsoever.

(viii) The petitioner undertakes not to make any inducement threat or promise, directly or indirectly, to the investigating officer or any person

acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or any Police Officer or tamper with the evidence.

(ix) In case the petitioner commits any offence prescribing the sentence of imprisonment of more than seven years, within thirty days of knowledge of

such FIR, the petitioner shall intimate SHO of the present police station, with all the details of the present FIR as well as the new FIR. In such a

situation, it shall be open for the State to apply to this Court for cancellation of this bail, if it deems fit and proper.

(x) Within 30 days from today, the petitioner shall sell, or surrender, all firearms along with ammunition, and arms licenses, if any, to the authority

which had given such permission.

(xi) The petitioner shall not enter within a radius of five kilometers of the residence of the victim, measuring from the shortest route, until the recording

of the statements of all witnesses, except Police Officials, during trial. This condition is being laid so that no trauma is caused to the victim, at least till

the time of recording of the statement of the victim in Court. Such a condition is neither arbitrary nor unreasonable and the only purpose is that the

victim is unable to come face to face with the accused and also has been imposed with a view that the accused is unable to influence the victim.

In case the petitioner finds the bail condition(s) as violating fundamental or other right, or any human right, or faces any other difficulty due to any

condition, then, the petitioner may file a reasoned application for modification of such term(s).

The present bail order is only for the FIR mentioned above. It shall not be construed to be a blanket order of bail in all other cases, if any,

registered against the petitioner.

The SHO/Additional SHO of the concerned Police Station or the Investigating Officer to handover a copy of this order to the victim(s) and explain

it to them.

Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.

Petition stands allowed in the terms mentioned above.