Shiv Kumar vs State Of Himachal Pradesh

Ajay Mohan Goel, J

By way of this petition filed under Section 439 of the Code of Criminal Procedure, the petitioner has prayed for grant of bail in FIR No. 165/2021, dated 14.10.2021, registered under Sections 363 and 376 of the Indian Penal Code, Section 4 of the Prevention of Children from Sexual Offences Act and Section 3(2)(v) of SC & ST Act at Police Station, Jawali, District Kangra, H.P.

Learned counsel for the petitioner has submitted that besides the fact that the applicant is innocent and he has been falsely implicated in the case, otherwise also, taking into consideration the fact that after lodging of the FIR in the month of October, 2021, as the petitioner is in custody since 16th October, 2021, no purpose is going to be served by his continuous custody, as neither any investigation etc. has to be made from him nor any recovery etc. has to be effected at his behest. Learned counsel further submitted that the case is at the stage of recording the statements of prosecution witnesses and the statements of all main prosecution witnesses, including the mother of the victim has been recorded and, therefore, if released on bail, there is no possibility of the petitioner trying to influence any material witness etc. Learned counsel for the petitioner has further argued that at the time of commission of the alleged offence, the petitioner was 21 years old and therefore also, in view of the age of the petitioner, the present petition be allowed and if released on bail, the petitioner shall comply with all such conditions that may be imposed upon him.

The petition has been opposed by the learned Additional Advocate General, inter alia, on the ground that besides the fact that the offence alleged to have been committed by the petitioner is grave and heinous, as statements of only eight out of 29 prosecution witnesses have been recorded, therefore, if released on bail, there is every possibility that the petitioner may try to influence the remaining prosecution witnesses. Hence, he prays that the petition be dismissed.

I have heard learned counsel for the parties and have also gone through the status report.

The FIR in issue is dated 14th October, 2021. The petitioner is stated to be in custody since October 16, 2021. The case is at the stage of recording of statements of prosecution witnesses. In terms of the record, statements of eight prosecution witnesses have been recorded, which includes the statement of the mother of the victim. The Court stands informed that now the case is listed for recording the statements of remaining prosecution witnesses in the month of March 2023. Taking into consideration the fact that the accused was 21 years old at the time when the alleged offence took place and further the fact that the statements of main prosecution witnesses, including the mother of the victim have been recorded, this Court is of the considered view that now no purpose is going to be served by detaining the petitioner further in custody, as he is in custody for more than a year. Now, as far as the apprehension of the State that if released on bail, the petitioner may try to win over and influence the witnesses is concerned, it is observed that in the event of the petitioner indulging in any such like activity, the State shall be at liberty to approach the Court for cancellation of the bail.

Accordingly, this petition is allowed and the petitioner is ordered to be released on bail in FIR No. 165/2021, dated 14.10.2021, registered under Sections 363 and 376 of the Indian Penal Code, Section 4 of the Prevention of Children from Sexual Offences Act and Section 3(2)(v) of SC & ST Act at Police Station, Jawali, District Kangra, H.P., subject to his furnishing bail bond in the sum of rupees fifty thousand with one surety of the like amount to the satisfaction of concerned Chief Judicial Magistrate/ Additional Chief Judicial Magistrate/Judicial Magistrate First Class. The petitioner shall also abide by the following conditions:-

“(a) He shall 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;

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

(c) He 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 Police Officer; and

(d) He will not leave the territorial jurisdiction of the Trial Court without the leave of the Court."

It is clarified that the findings which have been returned by this Court while deciding this petition are only for the purpose of adjudication of the present bail application and learned Trial Court shall not be influenced by any of the findings so returned by this Court in the adjudication of this petition during trial of the case. It is further clarified that in case the petitioner does not comply with the conditions which have been imposed upon him while granting the present bail, the State shall be at liberty to approach this Court for the cancellation of bail. The petition stands disposed in above terms.

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