Himachal Pradesh High Court
Kuldeep Kumar Alias Kapil vs State Of Himachal Pradesh on 4 January, 2021
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 2246 of 2020
Decided on: 04.01.2021
Kuldeep Kumar alias Kapil ....Petitioner
Versus
.
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 Yes
(Through video conference)
For the petitioner: Mr. Satyen Vaidya, Senior Advocate, with
Mr. Bhairav Gupta, Advocate.
For the respondent/State:
r to
Mr. S.C. Sharma and Mr. P.K. Bhatti,
Additional Advocate Generals with Mr.
Kuldeep Kumar Thakur, Deputy Advocate
General.
______________________________________________________________________
Chander Bhusan Barowalia, Judge. (Oral)
The matter is taken up through video conference.
2. The instant bail application has been maintained by the
petitioner under Section 439 of the Code of Criminal Procedure for
grant of bail, in case FIR No. 233 of 2019, dated 16.10.2019, under
Sections 363, 376 and 504 of Indian Penal Code and Section 4 of
Prevention of Children from Sexual Offences Act, registered at Police
Station Boileauganj, District Shimla, H.P.
3. As per the petitioner, he is innocent and has been falsely
implicated in the present case. He is permanent resident of the place
and neither in a position to tamper with the prosecution evidence nor
in a position to flee from justice, so he may be released on bail.
Whether reporters of Local Papers may be allowed to see the judgment? Yes
4. Police report stands filed. As per the prosecution, on
16.10.2019, police of police Station Boileauganj received a written
complaint, wherein the complainant, father of the prosecutrix, stated
.
that on 14.10.2019, his daughter (prosecutrix, name withheld), who is
a student of 10+2, did not return to home after attending the school.
Thereafter, they launched extensive search operation, but no clue
about the prosecutrix was found. On the same day one Kuldeep
Kumar @ Kapil (petitioner herein) was also missing from the village, so
the complainant had suspicion that the petitioner enticed the
prosecutrix and took her with him. Upon the complaint, so made by
the complainant, police registered a case under the apt sections and
the investigation ensued. During the course of investigation, on
05.11.2019, police recovered the prosecutrix and the petitioner from an
accommodation located in Palampur, Kangra. Police completed all the
codal formalities and effected the relevant recoveries. The petitioner
was arrested and medically examined. The prosecutrix was subjected
to medical examination and as per the Medical Officer, sexual
intercourse could not be ruled out. The statement of the prosecutrix
was recorded under Section 164 Cr.P.C. Police prepared the spot map
and recorded the statements of the witnesses. Police also procured the
records pertaining to the date of birth of the prosecutrix and she was
found to be born on 03.08.2002. During the course of investigation, it
was unearthed that on 14.10.2019, at about 09:00 a.m., when the
prosecutrix was en route school, the petitioner made her to board his
vehicle and took her to Jawali, Kangra. They stayed in the rented
accommodation at Palampur, where the petitioner committed repeated
.
sexual intercourse with the prosecutrix. When the prosecutrix started
bawling, during the sexual intercourse, the petitioner threatened her to
eliminate her. Police collected the scientific samples and sent the same
for forensic analysis. As per the police, in case the petitioner, at this
stage, is enlarged on bail, he may threaten the prosecutrix and her
family members and may also indulge in such acts again. Investigation
in the matter is complete and supplementary challan stands presented
in the learned Trial Court. Lastly, it is prayed that the application of
the petitioner be dismissed, as he was found involved in a serious
crime, the petitioner in case, at this stage, is enlarged on bail, may
tamper with the prosecution evidence and may also flee from justice.
5. I have heard the learned Counsel for the petitioner, learned
Additional Advocate General for the State and gone through the
records, including the police report, carefully.
6. The learned Sr. Counsel for the petitioner has argued that
the petitioner is innocent and he is neither in a position to tamper with
the prosecution evidence nor in a position to flee from justice, as he is
permanent resident of the place. He has further argued that the
petitioner is behind the bars for the last more than one year and
cannot be kept behind the bars for an unlimited period. He has argued
that investigation in the case is complete, nothing remains to be
recovered at the instance of the petitioner, custody of the petitioner is
not at all required by the police and the petitioner is ready and willing
.
to abide by all the terms and conditions of bail, in case granted, so the
petition may be allowed and he be enlarged on bail. Conversely, ,
learned Additional Advocate General has argued that the petitioner has
committed serious offence and in case, at this stage, he is enlarged on
bail, he may threaten the prosecutrix and her family members and may
again indulge in such activities again. He has further argued that
considering the seriousness of the offence, the petition may be
dismissed.
7. In rebuttal the learned Senior Counsel for the petitioner
has argued that the petitioner is local resident of the place and thus is
neither in a position to flee from justice nor in a position to tamper
with the prosecution evidence and the custodial interrogation of the
petitioner is not at all required by the police. He has further argued
that the petitioner is behind the bars for the last more than one year
and cannot be kept behind the bars for an unlimited period, especially
when investigation is complete, nothing remains to be recovered at the
instance of the petitioner and considering the fact that custody of the
petitioner is not at all required by the police, so the petition be allowed
and the petitioner be enlarged on bail.
8. At this stage, considering the manner in which the offence
is alleged to have been committed by the petitioner, the fact that it has
come in the police investigation that the petitioner did not use any
.
force upon the petitioner, the fact that the petitioner is resident of the
place, so neither in a position to flee from justice nor in a position to
tamper with the prosecution evidence, he is behind the bars for the last
more than one year, so cannot be kept behind the bars for an
unlimited period, especially when investigation is complete, nothing
remains to be recovered at the instance of the petitioner, the custody of
the petitioner is not at all required by the police also considering the
fact that the petitioner is ready and willing to abide by all the terms
and conditions of the bail, in case granted, and considering all the
facets of the case and without discussing them elaborately, this Court
finds that the present is a fit case where the judicial discretion to admit
the petitioner on bail, in this case, is required to be exercised in his
favour. Accordingly, the petition is allowed and it is ordered that the
petitioner, in case FIR No. 233 of 2019, dated 16.10.2019, under
Sections 363, 376 and 504 of Indian Penal Code and Section 4 of
Prevention of Children from Sexual Offences Act, registered at Police
Station Boileauganj, District Shimla, H.P., shall be released on bail
forthwith in this case, subject to his furnishing personal bond in the
sum of `20,000/ (rupees twenty thousand) with one surety in the like
amount to the satisfaction of the learned Trial Court. The bail is
granted subject to the following conditions:
(i) That the petitioner will appear before the
learned Trial Court/Police/authorities as and
.
when required.
(ii) That the petitioner will not leave India without
prior permission of the Court.
(iii) That the petitioner will 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 the Investigating
Officer or Court.
9. In view of the above, the petition is disposed of.
Copy dasti.
(Chander Bhusan Barowalia)
4th
January, 2021 Judge
(sushma)
