Shina vs State of H.P.

Dharam Chand Chaudhary, J.—This order shall dispose of all the three applications filed under Section 439 of the Code of Criminal Procedure.

Petitioners herein, are accused in FIR No. 105/14 under Sections 452, 363, 366, 376(2)(G), 120B, 506 of the Indian Penal Code and 4 of the Protection of Children from Sexual Offences registered in Police Station, Tissa, District Chamba.

The allegations against them, as disclosed from the record, in a nut-shell are that during the night intervening 8/9.08.2014, they accompanied by their co-accused Ibrahim, Sawar Deen, Sai, Ali Akbar, Fakrudin and Hasan Ali etc. entered into the house of the complainant and abducted his daughter (name withheld) intentionally to compel her to solemnize marriage with accused Sai and also seduce her to sexual intercourse. The FIR has been registered on 17.08.2014 and the explanation to the delay, as set forth, is that the complainant and other members of the family were trying to trace out his daughter, the prosecutrix at their own level. The accused-petitioners were interrogated and during the course of investigation arrested on 17.09.2014. They are now in judicial custody. The applications, they filed before learned Sessions Judge for the grant of bail have been dismissed with the observations that the investigation is still in progress and their co-accused, who have absconded are yet to be arrested. Accused-petitioner Shina is the sister of principal accused Sai. Accused-petitioners Sain Mohammad and Bashir in these applications are brother-in-law of accused Shina. The statement under Section 164 Cr.P.C. of the prosecutrix does not implicate accused-petitioner Sain Mohammad in the case.

The prosecutrix, as per investigation conducted at this stage remained in the custody of accused Ibrahim, Sawar Deen and Sai for two months and they detained her in a cave in the forest. They allegedly subjected her to sexual intercourse there during this period. She could contact her uncle Mohammad Deen through a call made from the cell phone of accused Ibrahim on 9.10.2014 and managed her escape by fleeing from the cave on that day.

Had the accused-petitioners been in hand-in-glove with their co-accused and played role in enticing away the prosecutrix from her lawful guardianship and thereby facilitated their co-accused Sai, Ibrahim and Sawar Deen to detain her in the cave so that she could have been forced to solemnize marriage with Sai or subjected to sexual intercourse by them, the police during their interrogation would have make them to disclose the location of the place (cave) where she was detained by the said accused. At this stage, when investigation is in progress and the accused-petitioners are no more required for further interrogation and also that being local residents, the police may procure their presence for the purpose of their further interrogation, if required, their detention in judicial custody is unwarranted. The police may investigate the case further. It remained unexplained as to how the accused-petitioners, if admitted on bail will create hurdle in further investigation of the case or arrest of the remaining accused persons, who as a matter of fact, seems to be the prime accused in this case.

Above all, while admitting the accused-petitioners on bail, appropriate conditions can be imposed upon them to restrict their movement. These applications are, therefore, allowed and it is ordered that the accused-petitioners Shina, Sain Mohammad and Bashir who have been arrested in connection with FIR No. 105/2014 in Police Station, Tissa, District Chamba, if not required in any other case be released on bail on their furnishing personal bonds in the sum of Rs. 50,000/- each with one surety each in the like amount to the satisfaction of learned Chief Judicial Magistrate, Chamba. The accused-petitioners shall further abide by the following conditions:

that they shall:-

(a) make themselves available for interrogation as and when required and shall co-operate with the Investigating Officer to conduct the investigation in a manner so as to take it to its logical end and they shall regularly attend the trial Court on each and every hearing if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

(b) Accused-petitioners Sain Mohammad and Bashir shall keep on visiting Police Station, Tissa once in a month and shall keep on informing the Station House Officer, Police Station, Tissa, District Chamba about their whereabouts till their co-accused are not arrested and investigation is completed.

(c) not temper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever.

(d) 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 Police Officer.

(e) not leave the territory of India without the prior permission of the Court.

It is clarified that if the petitioners misuse their liberty or violate any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail.

Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of these petitions alone. The petitions stand disposed of.