Sandeep Kumar vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner, invoking Section 439 of the Code of Criminal Procedure, has approached this Court for grant of bail in case FIR No.31 of 2022, dated 3.10.2022, registered under Sections 341, 363, 376 of the Indian Penal Code (hereinafter referred to as ‘IPC’) and Sections 4 & 6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’), in Women Police Station, Chamba, District Chamba, Himachal Pradesh.

Status report stands filed. Record was also produced.

As per Status Report, FIR has been registered on 3.10.2022, on the basis of complaint filed by Puja Devi (mother of victim) in the Office of Superintendent of Police, Chamba, which was received in Women Police Station, Chamba, for registration of case.

It has been stated by complaint, in the complaint, that her 17 years old daughter (victim) was taken by accused-petitioner on 26.4.2022, on the basis of false promise to marry with her (victim), and after keeping her in his house for five months and physically exploiting her, the petitioner left the victim in her (complainant’s) house, with utterance to take care of her daughter.

It has been further stated in the complaint that on 1.10.2022 at 5 p.m., when daughter of complainant went to bring her younger brother from tuition, at Rajera petitioner intercepted and restrained her daughter on the way to home and started pulling her from arm. Son of complainant informed the complainant, informing about it, asked complainant to come on the spot immediately, but when complainant reached there, petitioner had already left the spot.

With aforesaid submissions, it was stated in the complaint that petitioner had developed illicit relations with her daughter by cheating her and has spoiled her minor daughter.

On the basis of complaint, FIR was registered and petitioner as well as victim were subjected to medico-legal examination and, after interrogation, petitioner was arrested. Statement of victim was also recorded under Section 164 Cr.P.C. before Judicial Magistrate First Class, Chamba, whereafter Section 363 IPC was also added in the case.

As per Status Report, Date of Birth of victim is 30. 5.2005 and on the date of reporting of matter to the Police her age was about 17 years 5 months.

As per investigation, it has been found that petitioner developed forcible physical relations with victim during the period from 26.4.2022 to 29.8.2022.

After completion of investigation, challan has been presented in the Court on 14.11.2022. Proceedings in the case are pending before the Trial Court for consideration of charge.

In her statement, under Section 161 Cr.P.C., victim has stated that she was having acquaintance with the boy (petitioner) for more than one year, who expressed his intention and desire to marry her and, allured and enticed her to leave her parents and to accompany him with promise that and he would be providing everything what was being provided by her parents and she, under the influence of the boy, accompanied him. On 26.4.2022, he abducted her and kept her for five months and after doing “everything” with her asked her to go back, by saying that he would not be marrying with her and thereafter he beat her and himself took her to her parental home, whereupon she and her mother reported the matter to the Police, and she left him and started living with her parents. She has further stated, in her statement, that the boy had come ‘a day before yesterday’ and restrained her in the middle of the road, when she had gone to bring her brother, by catching by arm, whenreupon she broke the window-pane of the vehicle of the petitioner because petitioner was pulling her into the vehicle. Thereafter, her mother and father also came, as they were informed by making a mobile call.

Learned counsel for the petitioner has submitted that FIR has been lodged for difference of opinion between the parties and even if case of the prosecution is considered to be true then also from the complaint filed by mother of victim before the Superintendent of Police as well as statement made by the victim, under Section 164 Cr.P.C., it is apparent that the girl was handed over to the petitioner by the parents and thereafter she decided to live separate from the petitioner and when petitioner asked her to accompany him saying that he is still ready to marry her, the victim refused to go with him. It has been further submitted that the petitioner was not knowing the exact age of the victim and, as a matter of fact, parents of victim had voluntarily decided to leave the girl with the petitioner for the purpose of marriage, but lateron it appears that there was dispute between the parties and thereafter FIR has been lodged in October 2022, after considerable long delay, but without any explanation. It has further been submitted that the victim was with the petitioner for about five months and there was no problem to the parents or to the girl but after the differences between them, the matter has been reported to the police, as the complaint itself says that the petitioner took the daughter of complainant in the month of April 2022 and thereafter he kept the girl with him, but since then till October 2022, there was no complaint against the petitioner and there was no effort to search, procure or retrieve the minor from the custody of petitioner. Tone and tenor of the complaint filed by the mother of the victim clearly indicates that they were not aggrieved by spoiling of the minor girl, and even of leaving the victim by the petitioner at the house of her parents, but the complaint has been lodged by concocting the story of attempt to kidnap the victim while she was going with her brother, so as to create pressure upon the petitioner.

Learned Additional Advocate General has submitted that the petitioner has spoiled a minor girl and, therefore, he does not deserve any leniency and, therefore, his bail application deserves to be dismissed.

Without commenting upon merits of the case, but taking into consideration material placed before me and taking note of factors and parameters required to be considered at the time of adjudication of bail application as propounded by the Courts, including the Supreme Court, I am of the considered opinion that at this stage petitioner may be enlarged on bail.

Accordingly, present petition is allowed and petitioner is ordered to be enlarged on bail, subject to his furnishing personal bond in the sum of Rs.50,000/- with one surety in the like amount, to the satisfaction of trial Court and upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to assure presence of the petitioner at the time of trial:-

(i) That the petitioner shall make himself available to the Police or any other Investigating Agency or Court in the present case as and when required;

(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/her from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;

(v) that the petitioner shall not misuse his liberty in any manner;

(vi) that the petitioner shall not jump over the bail;

(vii) that in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by prosecution;

(viii) that the petitioner shall keep on informing about the change in address, landline number and/or mobile number, if any, for his availability to Police and/or during trial; and

(ix) the petitioner shall not leave India without permission of the Court.

It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner, enlarged on bail, as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.

In case the petitioner violates any conditions imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.

Learned trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.

Observations made in this petition hereinbefore shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.

The parties are permitted to produce copy of order downloaded from the High Court website and trial Court shall not insist for certified copy of the order, however, if required, passing of order can be verified from the High Court website or otherwise.

The petition stands disposed of in the aforesaid terms.