Amit Kumar vs State Of H.P
2021 Latest Caselaw 2802 HP

                                                                             .
        IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA





                                        Cr.MP(M) No. 788 of 2021
                                        Date of Decision 5th May, 2021





    ________________________________________________________

    Amit Kumar                                                           ...Petitioner
                                                   Versus





    State of H.P.                                                        ....Respondent

    Coram                 r
    The Hon'ble Mr. Justice Vivek Singh Thakur, J.

        Whether approved for reporting?1
    ______________________________________________________________
    For the Petitioner:                         Shri Chander Narayan                      Singh,
                                                Advocate,     through                      Video


                                                Conferencing.

    For the Respondent:                         Mr.   Gaurav  Sharma,    Deputy
                                                Advocate General, through Video




                                                Conferencing.
    __________________________________________________________________





    Vivek Singh Thakur, J.(Oral)

Petitioner has approached this Court under Section

438 of Code of Criminal Procedure (hereinafter in short 'Cr.PC')

for enlarging him on bail in case FIR No. 48 of 2017, dated

28.7.2017, registered in Police Station Panchrukhi, District

Kangra, under Sections 363, 366, 368, 323, 376, 344, 506 and

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

120-B IPC, Section 181 of Motor Vehicles Act and Sections 6 and

17 of Prevention of Children from Sexual Offences Act, 2012 (in

.

short 'POCSO Act').

2 Status report stands filed, wherein, it is stated that

on 28.7.2017, father of the victim had approached the police

with complaint that on 23.06.2017 his 16 years 8 months old

daughter had been kidnapped on motorcycle from her lawful

guardianship by petitioner and by alluring her to marry him and

since then, petitioner as well as victim were not traceable for a

considerable long time, whereupon an untraced report was

prepared by Investigating Agency on 25.1.2019.

3 It is further stated in status report that in December,

2019, petitioner and victim had filed a joint petition bearing

Cr.MMO No. 759 of 2019 for quashing of FIR by disclosing therein

that petitioner and victim had solemnized marriage on

17.1.2019, but, despite that, police and parents of victim had

been behind the couple to harass them.

4 It is the case of prosecution that lateron, on 4.3.2020

victim came to Police Station along with her parents and had

disclosed that she was kidnapped by petitioner on 24.6.2017

from Panchrukhi and on way, petitioner had offered something in

cold drink leading to loss of her consciousness and thereafter, on

regaining consciousness, she had found herself detained in a

room, where, her person was violated by petitioner. According to

.

status report, after keeping the petitioner for some days in a

room, she was taken to Bangalore and was kept in a closed room

there for a considerable long time. Later, under the pressure and

fear of petitioner as well as his father, she had solemnized

marriage with petitioner on 17.1.2019 in Arya Samaj Mandir,

Harit Vihar, Delhi.

5 It is also stated in status report that during

investigation, victim was referred for medical examination and

statements of victim as well as her mother were also recorded

before the Magistrate under Section 164 Cr.P.C. and during

investigation, victim had produced photocopies of her

matriculation certificate, marriage certificates dated 17.1.2019

issued by Arya Samaj Mandir, Harit Vihar, Delhi as well as Sub

Divisional Magistrate Court, Delhi. It has been found during

investigation that petitioner and victim had solemnized the

marriage on 17.1.2019 at Delhi, however, as stated in status

report, petitioner had kidnapped victim when she was minor and

petitioner's father had been pressurizing her to solemnize

marriage with his son (petitioner) and petitioner was not allowing

victim to use telephone, whereas, father of petitioner had been

continuously threatening her that in case she would not marry

his son, then, her younger sister will be kidnapped, resulting into

.

defamation of her parents and victim.

6 As per prosecution, victim had solemnized the

marriage, on attaining age of 18 years, under compulsion and

she was pressurized by petitioner and his father to file affidavit in

High Court in Cr.MMO No.759 of 2019.

7 It is case of prosecution that victim was detained by

petitioner in a room for a considerable long time and later on,

she was employed in a showroom in Bangalore, but, petitioner

had started doubting her character and had started beating and

harassing her, whereupon, victim had approached her parents

and maternal uncle telephonically and had told them her tale of

sorrow, whereupon, her parents had managed air travel ticket for

her from Bangalore to Chandigarh and on 21.1.2020 victim

reached her parental home.

8 As stated in status report, father of petitioner was

arrested on 5.5.2020 and after remaining in police custody, he

was sent to judicial custody by learned Additional Chief Judicial

Magistrate, Palampur on 19.5.2020. Thereafter, on 3rd July, 2020,

he was enlarged on bail by this Court.

9 As per status report, sister of petitioner is also an

accused, who has also been admitted on bail by the Special

.

Judge, Kangra at Dharamshala vide order dated 20.6.2020 in a

petition filed by her under Section 438 Cr.P.C.

10 As per status report, petitioner was not traceable and

during investigation, his mobile number as well as mobile

numbers of his parents, brother-in-law and friends were also kept

on surveillance but from Call Details Record of these mobile

numbers, no information of petitioner could be obtained and

petitioner was not traceable after registration of FIR.

11 Status report is completely silent about interrogation

of petitioner. It has been concluded by saying that in compliance

of order passed by this Court, petitioner has been bound down to

join the investigation after accepting his personal and surety

bonds by Investigating Officer. Lastly it is stated that after

receiving the report of Regional Forensic Science Laboratory,

Dharamshala, challan would be presented in Court.

12 Learned counsel for petitioner submits that affidavit

filed by victim after solemnization of marriage is on record, which

has been duly sworn before Notary Public in Sub Divisional Court,

Amb, District Una wherein victim had categorically stated that

being annoyed by beatings given by her parents, she had left her

home and had been residing with her friend and she was not

kidnapped by anybody by alluring her, but, she had left her

.

house with her own volition and later on, she had solemnized the

marriage with her free will and consent with petitioner on

17.1.2019 at Delhi.

13 It is also pointed out by learned counsel for petitioner

that victim was allegedly taken to Bangalore forcibly but report is

completely silent about the time and means about travel from

Himachal to Bangalore and further marriage was solemnized at

Delhi and petition was filed at Shimla which clearly indicates that

victim was residing with petitioner with her own will and was

frequently travelling from one place to another. He has further

pointed out that in status report, by referring the statement of

victim, it has been stated that she was detained in a room by

petitioner and was not allowed to have telephonic contact with

anybody including her parents and therefore, victim could not

report the matter to police or her parents and also could not

disclose her place of detention. He has pointed out that at the

same time, it is also stated in status report, that victim had been

serving in a showroom in Bangalore and during that time,

petitioner had started doubting her character. According to him,

both statements cannot stand together and being contradictory

to each other, the same create serious doubt about veracity of

statement now being made by victim, who is, now-a-days, under

.

the tremendous pressure of her parents and relatives and thus,

the prosecution story based on her statement made under

pressure of her parents cannot be believed to curtail the personal

liberty of petitioner.

14 It is also submitted by learned counsel for petitioner

that petitioner is permanent resident of Himachal Pradesh and as

earlier untraced report in FIR was filed, but, the same has been

revived in March, 2020 and petitioner was serving at Bangalore

and had not come to his native place earlier. He could not submit

himself to Investigating Agency however, now he has produced

himself to Investigating Agency and in status report, no prayer

for his custodial interrogation has been made, rather, it is stated

that after receiving the report of RFSL Dharamshala, challan is to

be presented in Court and therefore, no purpose shall be served

by detaining the petitioner behind the bars.

15 Without commenting on merit on plea of either party,

considering entire facts and circumstances of the case, I find that

it is a fit case, where petitioner can be enlarged on bail at this

stage. Accordingly, petitioner is directed to be enlarged on bail in

case FIR No. 48 of 2017, registered in Police Station Panchrukhi,

District Kangra, subject to furnishing his personal bond in the

sum of Rs.50,000/- with one surety in the like amount to the

.

satisfaction of the concerned trial Court/Special Judge, within two

weeks from today and also subject to following further

conditions:-

(i) That the petitioner shall make himself available during the investigation as

well as trial on each and every date as and when required;

(ii) That the petitioner shall not directly or r indirectly make any inducement, threat

or promise to any person acquainted with the facts of the case so as to dissuade 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 as

well as trial;

(iv) That the petitioner shall not jump over the bail and shall inform, in writing, regarding change of address, land line number and/or mobile number, if any, in advance, to concerned Police Station;

              (v)      That the petitioner shall not commit
                       the offence similar to the offence to
                       which he is accused or suspected or




                                                               .

                       the   commission       of     which      he      is
                       suspected;
              (vi)     In    the    event     of     repetition        of





                       commission of offence, bail granted in
                       present case shall be liable to be
                       cancelled on taking appropriate steps





                       by prosecution/police;
              (vii)    That the petitioner shall not leave

India without prior permission of Court;

(viii) That petitioner shall not misuse his

liberty in any manner.

16. It will be open to the prosecution to apply for

imposing any such other or further condition on the petitioner as

deemed necessary in the facts and circumstances of the case

and in the interest of justice. It will also be open to the trial

Court/Magistrate to impose any other or further condition on the

petitioner as it may deem necessary in the interest of justice.

17. In case the petitioner violates any condition 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.

18. 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 18.3.2013.

19 Any observation made in this order shall not affect

the merits of case in any manner and will strictly confine for the

disposal of this bail application filed under Section 438 of Code

of Criminal Procedure 1973.

20. The petitioner is permitted to produce copy of order

downloaded from the High Court website and the trial Court

shall not insist for certified copy of the order, however, they may

verify the order from the High Court website or otherwise.

Petition stands disposed of.

Dasti copy on usual terms.

    May 05, 2021                                  (Vivek Singh Thakur)
    (ms)                                                 Judge