Mukesh Kumar vs State Of H.P
2021 Latest Caselaw 2867 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 928 of 2021 Reserved on: May 25, 2021 Date of Decision: May 31, 2021

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    Mukesh Kumar                                                       ...Petitioner.

                                      Versus





    State of H.P.                                                       ...Respondent.

    Coram:

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

Whether approved for reporting?1NO

For the petitioner:

Mr. Udayanand Sharma, Advocate.

For the respondent: Mr. Nand Lal Thakur, Additional Advocate General,

Mr. Ram Lal Thakur, Assistant Advocate General and

Mr. Rajat Chauhan, Law Officer, for the State.

                              THROUGH VIDEO CONFERENCE


        FIR No.      Dated         Police Station                       Sections
        178     of 13.11.2019      Karsog, District Mandi, H.P.         452, 376, 506, 292,
        2019                                                            354B , 354D of IPC




                                                                        and Section 67 of





                                                                        IT Act and Sections
                                                                        4 & 6 of Indecent
                                                                        Representation      of





                                                                        Women
                                                                        (Prohibition ) Act.

    Anoop Chitkara, Judge

The petitioner, incarcerating upon his arrest for having coitus with a girl aged 19 years, without her will and consent, and recording the act, and after that

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

forwarding to the brother of the victim on his WhatsApp, has come up before this Court under Section 439 of CrPC, seeking bail.

2. Earlier, the petitioner had filed Bail Application No.CIS Reg. No.28/2020

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before learned Additional Sessions Judge (1), Mandi, District Mandi, H.P. Vide

order dated 22.2.2020, the same was dismissed.

3. In Para 11 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 the victim who is a major informed the Police about sexual assault by the petitioner which led to his arrest. She further alleged that when she was alone in the home, then accused entered there

and during the night committed coitus with her on 4-5 occasions and also took her nude photographs. Based on these allegations, the Police registered the FIR mentioned above.

5. Ld. Counsel for the petitioner contends that a reading of allegations made in

FIR makes out a case for bail. Ld. Counsel relies upon the status report for such a

reading. His further contention is that the incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

6. On the contrary, the State contends that the investigation is almost complete

and the police report under section 173(2) CrPC stands filed on 22nd January 2020 and the matter is fixed for consideration of charge. 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.

REASONING:

7. To adjudicate the submissions made by Ld. Counsel for the petitioner, it would be necessary to refer to all the evidence collected in the investigation.

8. A reference to the status report reveals that the Officer-in-charge of the Police station has already forwarded the police report under section 173 (2) CrPC to the concerned Court. Had the accused not received the documents in compliance with S. 207 CrPC, this Court would have certainly asked the respondent to produce the same. However, the petitioner does not claim the non-receipt of the challan. The accused receives copies of the Police report and the copies of the statements of witnesses free of cost.

9. The allegations in the case are serious and offence heinous. To decide the bail

petition on merits would require this Court to peruse the entire evidence collected by the prosecution, more particularly the statement of the victim recorded under Section 164 CrPC, scientific evidence, and medical evidence. The petitioner neither annexed

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the copy of the police report filed under Section 173(2) CrPC nor does he say that the

Trial Court did not supply the same to him under S. 207 CrPC. Even there is no ground pleaded or explanation offered that constrained the petitioner from filing it with the petition. Thus, the Court cannot decide the bail petition. It is clarified that

if the concerned Court has yet not supplied the copy of the police report filed under section 173(2) CrPC to the accused under Section 207 CrPC, then the same shall be supplied without any delay.

10. Given above, the petition is dismissed, reserving liberty to file a new petition on the same cause of action or different grounds by annexing a copy of the complete set of the police report, etc. r Anoop Chitkara,

Judge.

May 31, 2021 (ks).