Himachal Pradesh High Court
Kundan Lal vs State Of Himachal Pradesh on 18 June, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:3783
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No.1026 of 2024 a/w Cr.
MP (M) Nos. 1051 to 1054 of 2024
.
Date of Decision: 18.06.2024
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1. Cr. MP (M) No.1026 of 2024
Kundan Lal ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
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2. Cr. MP (M) No.1051 of 2024
Ganga Ram ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
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3. Cr. MP (M) No.1052 of 2024
Dinu Ram ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
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4. Cr. MP (M) No.1053 of 2024
Valmu Devi ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
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5. Cr. MP (M) No.1054 of 2024
Dhali Devi ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
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Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
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1
Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 21/06/2024 20:33:32 :::CIS
2
For the Petitioner(s): Mr. Ashok Kumar Tyagi & Ms. Divya
Rajta, Advocates, for petitioner(s) in all
the petitions.
.
For the Respondent(s): Mr. Rajan Kahol, and Mr. B.C.Verma,
Additional Advocate Generals with Mr.
Ravi Chauhan, Deputy Advocate
General, for respondent-State, in all
the petitions.
HC Kesar Singh No. 143, PS Janjahti,
District Mandi, HP.
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Sandeep Sharma, J. (Oral)
rSequel to orders dated 14/16.05.2024, whereby bail
petitioners namely Kundal Lal, Ganga Ram, Dinu Ram, Valmu Devi and
Dhali Devi were ordered to be enlarged on interim bail in the event of
their arrest in case FIR No. 55 of 2024 dated 06.05.2024, under
Sections 376 of Indian Penal Code, Section 6 of POCSO Act and
Sections 9 and 10 of Prohibition of Child Marriage Act, registered at PS
Janjahali, District Mandi, H.P., respondent-State has filed the status
report and HC Kesar Singh No. 143, PS Janjahti, District Mandi, H.P.
has come present with record. Record perused and returned.
2. Close scrutiny of record and status report reveals that on
06.05.2024 police after having received telephonic information from Dr.
Uday Bhanu, Medical Officer, Mandav Hospital, Kotkar, District Mandi,
H.P., reached aforesaid Hospital and recorded the statement of
aforesaid complainant under Section 154 Cr.P.C, wherein he alleged
that on 06.05.2024 one delivery case of the child aged 17 years was
received in the hospital. Complainant alleged that name of the husband
of the lady brought for delivery is Kundan Lal. On the basis of aforesaid
information given by the doctor concerned, Police registered FIR, as
detailed hereinabove, against the person Kundan Lal as well as parents
.
of Kundan Lal. Before persons named in the FIR could be arrested, they
approached this court through instant bail petition for grant of interim
bail.
3. Vide orders dated 14/16.05.2024, this court granted interim
bail in favour of the accused subject to their join investigation. Since all
the bail petitioners herein have joined investigation and nothing remains
to be recovered from them, prayer has been made on their behalf for
confirmation of interim bail granted vide orders dated 14/16.05.2024.
4. Mr. B.C.Verma, learned Additional Advocate General,
while fairly admitting factum with regard to joining of investigation by the
bail petitioners, states that though nothing remains to be recovered from
the bail petitioners, but keeping in the gravity of offence alleged to have
been committed by them, they do not deserve any leniency. Mr. Verma,
further states that as per evidence collected on record, bail petitioners
firstly solemnized the marriage of child below 18 years and thereafter,
bail petitioner Kundan Lal sexually assaulted her, as a result thereof, she
became pregnant. Mr. Verma, states that on account of their having
committed heinous crimes punishable under Section 376 of Indian Penal
Code, Section 6 of POCSO Act and Sections 9 and 10 of Prohibition of
Child Marriage Act, petitioners do not deserve any leniency, rather need
to be dealt with in accordance with law.
5. Having heard learned counsel for the parties and perused
material available on record, this court finds that factum with regard to
marriage of the victim/ prosecutrix with bail petitioner Kundan Lal was
very much in the knowledge of Mandav Hospital prior to lodging of the
.
case against Kundan Lal and other family members. As per own case of
the prosecution, victim/ prosecutrix was under treatment from Mandav
Hospital and after her having become pregnant, child and mother card
was also made by Health and Family Welfare Department.
6. No complaint, if any, was ever lodged by the hospital,
when victim/prosecutrix was brought for routine check up, rather for the
first time complaint against bail petitioner Kundan Lal came to be made
on 06.04.2024, when victim prosecutrix delivered male child. As per own
case of prosecution, Asha worker, while making child & mother card
herself recorded the age of the victim/prosecutrix between 16 to 17
yeas, but at that relevant time, matter was not brought to the knowledge
of the Police, rather thereafter, on the strength of the card prepared by
Asha Worker, victim/prosecutrix alongwith her husband kept on visiting
Mandav Hospital for routine check up.
7. Prosecution story itself reveals that victim/prosecutrix and
bail petitioner Kundan Lal had solemnized marriage. If the statement of
prosecutrix recorded under Section 164 Cr.P.C on 27.05.2024 is
perused, she categorically deposed that on 03.07.2024 she of her own
volition and without there being any external pressure, joined the
company of bail petitioner Kundan Lal and she wants to live with her
husband i.e. Kundan Lal. No doubt, at the time of delivery of child, age
of the victim/prosecutrix was 17 years and as such, consent, if any, of
her may not be of much relevance, but this court cannot loose set of the
fact that bail petitioner and victim/prosecutrix have already solemnized
marriage and out of their wedlock, one male child was born. No doubt,
.
bail petitioner Kundan Lal is accused of heinous crime punishable under
Section 376 IPC and Section 6 of POCSO Act, but once factum with
regard to victim/prosecutrix having become pregnant was very much in
the knowledge of Health and Family Welfare Department, it is not
understood that why at this stage complaint was not lodged with the
Police. Had concerned authority taken steps at that relevant time for
registration of case against accused named in the FIR, situation would
have become different. However, at present victim/prosecutrix, who has
otherwise is more than 17 years, has already delivered male child and in
case at this stage, bail petitioner Kundan Lal, who happens to be
husband of victim/prosecutrix, is sent behind bars, great prejudice would
be caused to the victim/prosecutrix as well as new born child.
8. Though, there is no material document on record
suggestive of the fact that marriage inter se victim/prosecutrix and bail
petitioner Kundan Lal, but one such fact has been admitted by the
victim/prosecutrix, coupled with the fact that State has already registered
case against accused under Sections 9 and 10 of Prohibition of Child
Marriage Act, factum of marriage otherwise cannot be denied. Whether
marriage inter se bail petitioner Kundan Lal and victim/prosecutrix has
been solemnized in violation of provision contained under Sections 9
and 10 of Prohibition of Child Marriage Act is a question to be
determined by the learned Court below in totality of evidence. Similarly,
it is yet to be established that bail petitioners namely Ganga Ram, Dinu
Ram, Valmu Devi and Dhali Devi in connivance with Kundan Lal
solemnized marriage inter se victim/prosecutrix and Kundan Lal.
.
9. In view of peculiar facts and circumstances, as have been
recorded hereinabove, this court sees no reason for judicial custody of
the bail petitioners, rather, in that eventuality, victim/prosecutrix along
with her minor son would be left alone and that situation would be more
traumatic for her as well as her newly born child.
10. Hon'ble Apex Court and this Court in a catena of cases
have repeatedly held that one is deemed to be innocent, till the time,
he/she is proved guilty in accordance with law. Since guilt, if any, of the
bail petitioners is yet to be established on record by the prosecution by
leading cogent and convincing evidence, this court sees no reason to
curtail the freedom of the bail petitioners for indefinite period during trial.
Apprehension expressed by learned Additional Advocate General, that
in the event of being enlarged on bail, bail petitioners may flee from
justice can be best met by putting the bail petitioners to stringent
conditions.
11. Needless to say, object of the bail is to secure the
attendance of the accused in the trial and the proper test to be applied in
the solution of the question whether bail should be granted or refused is
whether it is probable that the party will appear to take his trial.
Otherwise, bail is not to be withheld as a punishment. Otherwise also,
normal rule is of bail and not jail. Court has to keep in mind nature of
accusations, nature of evidence in support thereof, severity of the
punishment which conviction will entail, character of the accused,
circumstances which are peculiar to the accused involved in that crime.
.
12. Hon'ble Apex Court in Criminal Appeal No. 227/2018,
Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018
has held that freedom of an individual cannot be curtailed for indefinite
period, especially when his/her guilt is yet to be proved. It has been
further held by the Hon'ble Apex Court in the aforesaid judgment that a
person is believed to be innocent until found guilty.
13. Hon'ble Apex Court in Sanjay Chandra versus Central
Bureau of Investigation (2012)1 Supreme Court Cases 49 has held
that gravity alone cannot be a decisive ground to deny bail, rather
competing factors are required to be balanced by the court while
exercising its discretion. It has been repeatedly held by the Hon'ble Apex
Court that object of bail is to secure the appearance of the accused
person at his trial by reasonable amount of bail. The object of bail is
neither punitive nor preventative.
14. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5
SCC 218, Hon'ble Apex Court has held that the object of the bail is to
secure the attendance of the accused in the trial and the proper test to
be applied in the solution of the question whether bail should be granted
or refused is whether it is probable that the party will appear to take his
trial. Otherwise also, normal rule is of bail and not jail. Apart from above,
Court has to keep in mind nature of accusations, nature of evidence in
support thereof, severity of the punishment, which conviction will entail,
character of the accused, circumstances which are peculiar to the
accused involved in that crime.
.
15. The Apex Court in Prasanta Kumar Sarkar versus Ashis
Chatterjee and another (2010) 14 SCC 496, has laid down various
principles to be kept in mind, while deciding petition for bail viz. prima
facie case, nature and gravity of accusation, punishment involved,
apprehension of repetition of offence and witnesses being influenced.
16. Consequently, in view of the above, order dated
14/16.5.2024, passed by this Court, are made absolute, subject to the
following conditions:
a. They shall make themselves available for the purpose of
interrogation, if so required and regularly attend the trial Court on
each and every date of hearing and if prevented by any reason to do
so, seek exemption from appearance by filing appropriate
application;
b. They shall not tamper with the prosecution evidence nor hamper the
investigation of the case in any manner whatsoever;
c. They shall not make any inducement, threat or promises to any
person acquainted with the facts of the case so as to dissuade him
from disclosing such facts to the Court or the Police Officer; and
d. They shall not leave the territory of India without the prior
permission of the Court.
17. It is clarified that if the petitioners misuse their liberty or violate
any of the conditions imposed upon them, the investigating agency shall be
free to move this Court for cancellation of the bail.
18. Any observations made hereinabove shall not be construed to
be a reflection on the merits of the main case and shall remain confined to the
disposal of these applications alone.
The bail petitions stand disposed of accordingly.
19. The bail petitioner is permitted to produce copy of the order
downloaded from the High Court Website and the trial court shall not insist for
certified copy of the order, however, it may verify the order from the High Court
website or otherwise.
.
(Sandeep Sharma)
Judge
June 18, 2024
(sunil)
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