Saddam @ Sahil vs State Of H.P
2021 Latest Caselaw 890 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 2204 of 2020 Reserved on: 22nd January, 2021.

.

Date of Decision: 04th February, 2021.

    Saddam @ Sahil                                                           ...Petitioner.

                                    Versus





    State of H.P.                                                           ...Respondent.

    Coram:

The Hon'ble Mr. Justice Anoop Chitkara, Vacation Judge.

Whether approved for reporting?1 NO

For the petitioner : Mr. Rajesh K. Parmar, Advocate.

For the respondent : Mr.Narender Guleria & Mr. Vikas Rathore, Addl.

A.Gs. with Mr. dvocate General & Mr. Bhupender

Thakur, Mr. Gaurav Sharma & Ms. Divya Sood, Dy.A.Gs.

                            THROUGH VIDEO CONFERENCE



        FIR No.   Dated          Police Station         Sections
        55/2020   22.10.2020     Nankhari,              363, 343, 366(A), 376, 376(A),
                                 District Shimla        506, 120-B IPC & 4, 6 & 17




                                                        POCSO and 5 PITA





    Anoop Chitkara, Vacation Judge.

A boy aged 25 years, who allegedly paid for having sex with a girl aged

16 years and 9 months, has come up before this Court under Section 439 of the Code of Criminal Procedure, 1973 (CrPC), seeking regular bail on the ground that he had not allured the girl.

2. A perusal of the petition reveals that the petitioner filed the bail petition before High Court, which is permissible given the decision of a three Judges Bench of HP High Court, in Mohan Lal v Prem Chand, AIR 1980 HP 36, (Para 9 & 15), wherein the Full bench holds that a person can directly apply for an anticipatory bail or regular bail to the High Court without first invoking the jurisdiction of the Sessions Court.

Whether reporters of Local Papers may be allowed to see the judgment?

3. In Para 9 of the bail application, the petitioner declares having no criminal history. The status report also does not mention any criminal past of the accused.

.

4. Briefly, the allegations against the petitioner are that on 2.10.2020, at about

1.30 p.m., the victim went to a place known as Brow on the pretext of bringing clothes from the quarter and she said that she will come back on 3.10.2020. On

3.10.2020, complainant made repeated telephonic calls to her daughter but she did not pick up the call. The complainant along with her husband searched the victim in her relations but she was not found anywhere. On the basis of the complaint made by the complainant, the aforesaid FIR was registered. During investigation, on

22.10.2020, at about 11.30 p.m. the victim was recovered from Shingla Helipad and her statement under Section 161 Cr.P.C. was recorded. The victim in her statement has stated that she was enticed away by Rukmani Devi and she kept her in her

quarter till 13.10.2020 and on 13.10.2020, at about 8.00 p.m., she was taken by

Rukmani towards Sainj, Kingal side and she was handed over to Jagdish Kumar. During night, victim stayed in the hotel with him and during night, he committed sexual intercourse with her. On 14.10.2020,Jagdish Kumar dropped her and

Rukmani at Rampur and on the same day at about 8 p.m., Rukmani threatened the victim and took her again to the same hotel and handed over her to Jagdish Kumar.

During the night of 14.10.2020, at about 8 p.m., Jagdish dropped her at Rampur and thereafter she lived in the quarter of Rukmani. On 17.10.2020, at about 10 p.m.

Rukmani called Sahil (petitioner herein) and the victim had a talk with Sahil. On 18.10.2020, at about 8 a.m. Sahil made a telephonic call on the telephone number of

the victim and he had a talk with Rukmani. Sahil called the victim along with her clothes and bag etc. near Telephone Exchange Rampur and thereafter he took the victim to his room at Racholi. On 21.10.2020 and 22.10.2020, Sahil forcibly committed sexual intercourse with her and on 23.10.2020, Sahil left the victim near the hotel of Rukmani. Rukmani had given `600/- to the victim and had asked her not to disclose the matter to anyone otherwise she would be done to death. On 23.10.2020, the victim was recovered and on 24.10.2020, she was got medically examined at MGMSC, Khaneri and the doctor has opined that sexual intercourse was committed with the victim. On 24.10.2020, the petitioner was arrested and clothes were taken into possession. The statement of victim under Section 164 Cr.P.C. was

got recorded. Based on these allegations, the Police registered the FIR mentioned above.

5. Learned Counsel for the petitioner contends that incarceration before the proof

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of guilt would cause grave injustice to the petitioner and her family. He further submits that as per the prosecution case, it was Rukmani, who had allured the victim and not the accused. Based upon the prosecution case, he further submits that there is

no allegation of any threat or allurement and also that there is no struggle or opposition at the end of the victim, in case she had been subjected to forcible sexual intercourse or any coitus whatsoever.

6. On the contrary, the learned Additional Advocate General contends that the Police have collected sufficient evidence against the bail petitioner. Another argument on behalf of the State is that the crime is heinous, the accused is a risk to

law-abiding people, and bail might send a wrong message to society. He further

submits that as per date of birth certificate, the victim was born on 21 st January, 2004, as such she was much below 18 years of age when she could have consented.

7. Learned Additional Advocate General further argued that the absence of

injury, threat, struggle allurement or opposition would come into play only when the petitioner had completed the age of consent, whereas it was a case of sexual assault.

The case is that the victim has very categorically stated that she was sexually assaulted initially by Jagdish Kumar and after that by Sahil and she was detained by

Rukmani.

8. Learned Additional Advocate General submits that it has come in the statement

of the victim that for the first time in her life she had met the petitioner when she had visited the hotel to have sex with her. He further submits that a young girl would not do sex for pleasure with a stranger, when specific allegations are that it was Rukmani, who was taking money from the customer to do sex with her.

9. The victim has alleged that on 21.10.2020 and 22.10.2020, petitioner Saddam @ Sahil committed sexual intercourse with her for number of times and after that left her back. The investigation revealed that Rukmani had taken a sum of Rs.8,000/- from Saddam for sex with the victim. Thus, getting sex from a minor on payment of money would not entitle the petitioner for any bail.

.

10. Ld. Counsel for the petitioner referred to certain statements and memos from

the police report, prepared under section 173(2) CrPC, copies of which the accused had duly received in compliance to S. 207 CrPC. However, the documents which the

Ld. Counsel referred were neither filed with the petition, nor its copies supplied to the Court and the State. Thus, the Court cannot base any finding on a document in the Counsel's brief and not on Court's file.

11. Given above, in the facts and circumstances peculiar to this case, at this stage,

the petitioner fails to make out a case for bail. The petition is dismissed.

12. 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.

13.

There would be no need for a certified copy of this order for furnishing bonds,

and any Advocate for the Petitioner can download this order from the official web page of this Court and attest it to be a true copy. In case the attesting officer or the Court wants to verify the authenticity, such an officer can also verify its authenticity

and may download and use the downloaded copy for attesting bonds.

The petition dismissed.

(Anoop Chitkara), Vacation Judge.

February 04, 2021 (ps).