Reserved On: 20.02.2023 vs State Of Himachal Pradesh
2023 Latest Caselaw 1428 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. M.P.(M) No. 336 of 2023 Reserved on: 20.02.2023 Decided on: 23.02.2023 ___________________________________________________________ Shiv Kumar ......Petitioner

.

Versus

State of Himachal Pradesh ......Respondent

Coram The Hon'ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 Yes

For the petitioner: Ms. Meera Devi and Ms. Jyoti Dogra, Advocates.

           For the respondent:                        Mr. Rajan Kahol and Mr. Rakesh
                                 r                    Dhaulta, Additional Advocate
                                                      Generals.

            Satyen Vaidya, Judge

Petitioner has approached this Court for grant

of pre-arrest bail in case FIR No. 06 of 2023, dated

07.02.2023, registered under Sections 354-A and 452 of

IPC at Police Station, Mcleodganj, District Kangra, H.P.

Petitioner was admitted to interim bail on 13.02.2023. He

has joined the investigation thereafter.

2. It is alleged against the petitioner that he is

working as Accountant in the office of the Divisional Forest

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

Officer, Saluni, District Chamba, H.P. On 03.02.2023, he

visited Dharamshala in relation with audit of the Data

Entry Operators and was accompanied by the victim as

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also another female Data Entry Operator. They all stayed

at Dharamshala on 03.02.2023 in a hotel. In the night, the

victim had preferred to stay in her room, whereas others

were enjoying the party. The victim was also forced to join

the party, but being uncomfortable, she came back and

slept in her room. She had bolted the room from inside. At

about 2.30 a.m., she found that the petitioner was

sleeping besides her on the same bed. He was holding the

hands of the victim and tried to force his will on her. She

could save herself with difficulty and the petitioner left the

room through balcony. In the morning, it was found that

petitioner had crossed over to the balcony of the room of

the victim from the balcony of the room he was occupying.

3. On notice, respondent has filed the status

report. Petitioner has already associated himself in the

investigation. It is submitted that the CDRs of the mobile

phone of petitioner was still awaited and the statement of

female Data Entry Operator, who was accompanying the

petitioner and victim on 03.02.2023 to Dharamshala is yet

to be recorded.

4. On the other hand, petitioner has prayed for

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grant of bail on the ground that he is innocent. All the

preliminary investigation in the case are complete and

nothing is required to be recovered from him. It is also

contended on behalf of the petitioner that he is permanent

resident of Village Basanda, Post Office Garola, Tehsil

Bharmour, District Chamba and is a Government servant.

There is no likelihood of his absconding from course of

justice. Petitioner has undertaken to abide by all terms

and conditions as may be imposed against him.

5. I have heard learned counsel for the parties and

have also gone through the records of the case.

6. Undoubtedly, the allegations against the

petitioner are serious in nature. He is alleged to have taken

benefit of the loneliness of a female by unauthorisedly and

illegally intruding into her privacy, however, the

allegations are subject to proof.

7. The respondent has not shown any requirement

of petitioner for custodial interrogation. In fact, petitioner

has already joined the investigation and in the given facts

of the case, no fruitful purpose shall be served by allowing

the petitioner to be detained in custody. Petitioner will get

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his due, in case the offence alleged against him is proved.

Pre-trial incarceration is not the rule. Therefore, no fruitful

purpose shall be served by detaining the petitioner in

custody for indeterminate period.

8. The CDR of the mobile phone of petitioner is

awaited and the same is to be procured by the

Investigating Agency from the service provider. Petitioner

cannot be said to have any access to the record of service

provider. Similarly, the statement of another female official

accompanying the victim and petitioner is required to be

recorded. This again is the function of the Investigating

Officer. It is not the case of respondent that the said official

is under the influence of petitioner. In any event, the facts

do not suggest that the said official was an eye witness.

9. Petitioner is permanent resident of Village

Basanda, Post Office Garola, Tehsil Bharmour, District

Chamba, H.P. and is a Government official. There is no

likelihood of petitioner absconding or fleeing from the

course of justice. The only concern of the Court at this

stage is to ensure the fair and expeditious investigation

and trial, for which the petitioner can be put to

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appropriate terms.

10. Keeping in view the peculiar facts and

circumstances of the case, petition is allowed. Interim

order dated 13.02.2023 is confirmed. In the event of arrest

of the petitioner in case FIR No.06 of 2023, dated

07.02.2023, registered under Sections 354-A and 452 of

IPC at Police Station, Mcleodganj, District Kangra, H.P., he

shall be released on bail, subject to his furnishing

personal bond in the sum of Rs. 25,000/- with one surety

in the like amount to the satisfaction of Investigating

Officer. This order is, however, subject to following

conditions: -

(i) That the petitioner shall make himself available for the purpose of investigation, an and when

required.

(ii) That the petitioner shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever.

(iii) That the petitioner 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 any Police Officer; and

(iv) That the petitioner shall not leave India without prior permission of this Court till completion of investigation and thereafter of the trial court.

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11. Any observation made hereinabove shall not be

taken as an expression of opinion on the merits of the

case and the trial Court shall decide the matter

uninfluenced by any observation made hereinabove.

Petition stands disposed of.

    23rd February, 2023                              (Satyen Vaidya)
          (GR)
                    r                                 Vacation Judge