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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ANOOP CHITKARA, J.
Virender Singh - Petitioner
Versus
State of H.P. - Respondent
Cr.MP(M) No. 77 of 2021
Decided On : 04-02-2021
Indian Penal Code, 1860 – Sections 376, 361, 366 – Narcotics Drugs and Psychotropic Substances Act, 1985 – Section 37 – Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 – Section 438 – Code of Criminal Procedure, 1973 – Section 439, 164 – Protection of Children from Sexual Offences Act, 2012 – Section 6 – Kidnapping of Minor – Whether a consensual affair can be a defence against the charge of kidnapping a minor – Petitioner had filed a bail petition under Section 439 CrPC before this Hon’ble High Court, which was registered as Cr.MP(M) – However, vide order bail petition was dismissed as withdrawn – Bail petition is silent about criminal history, however, counsel for the bail petitioner states on instructions that the petitioner has no criminal past relating to the offences prescribing sentence of seven years and more, or when on conviction, the sentence imposed was more than three years. – Status report also does not mention any criminal history. – Allegations against petitioner are that victim's father informed Police Station, that his daughter is missing from home. – He also told police that after a frantic search, they realized that one petitioner herein had allured her away with him. – After that, they noticed the victim in the compound of Virender Singh’s house, who himself was not present at home on that day. – On interaction with her parents, she said that she had voluntarily left home because she was in love with Virender. – She refused to return home. – Despite efforts, she refused to accompany them. – After that, the victim and her parents visited the Counselor of Child Welfare Centre in Nahan, where victim told her mother that petitioner allured her. – Held, An analysis of entire evidence does not justify further incarceration of the accused, nor is going to achieve any significant purpose. – Without commenting on the merits of the case, the stage of the investigation and the period of incarceration already undergone would make out a case for bail. – Thus, in the facts and circumstances peculiar to this case, the petitioner makes out a case for release on bail. – Given the above reasoning, the Court is granting bail to the petitioner, subject to strict terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973. – Court observed that any Court granting bail with sureties should give a choice to the accused to either furnish surety bonds or give a fixed deposit, with a further option to switch over to another. – Petitioner shall be released on bail in FIR mentioned above, subject to his furnishing a personal bond of Rs. Twenty-five thousand and shall furnish two sureties of a similar amount, to the satisfaction of the Judicial Magistrate having the jurisdiction over the Police Station conducting the investigation, and in case of non-availability, any Ilaqa Magistrate. – Before accepting the sureties, the concerned Magistrate must satisfy that in case the accused fails to appear in Court, then such sureties are capable to produce the accused before the Court, keeping in mind the Jurisprudence behind the sureties, which is to secure the presence of the accused. – Petition Allowed
JUDGMENT :
ANOOP CHITKARA, J.
1. An unmarried boy aged 24 years, who is in custody for around three months, because a minor girl aged 16 years, came to his home as they love each other, stayed there, had coitus, which on the intervention of her parents led to the registration of FIR, has now come up before this Court seeking regular bail on the ground of the conduct of the victim.
2. Earlier, the petitioner had filed a bail petition under Section 439 CrPC before this Hon’ble High Court, which was registered as Cr.MP(M) No.2126/2020. However, vide order dated 17.12.2020, the bail petition was dismissed as withdrawn.
3. The bail petition is silent about criminal history, however, Mr. Karun Negi, Advocate, learned counsel for the bail petitioner states on instructions that the petitioner has no criminal past relating to the offences prescribing sentence of seven years and more, or when on conviction, the sentence imposed was more than three years. Status report also does not mention any criminal history.
4. Briefly, the allegations against the petitioner are that on 1st Nov 2020, the victim's father informed Police Station, Shillai that his daughter is missing from home. He also told the police that after a frantic search, they realized that one Virender Singh (petitioner herein) had allured her away with him. After that, they noticed the victim in the compound of Virender Singh’s house, who himself was not present at home on that day. On interaction with her parents, she said that she had voluntarily left home because she was in love with Virender. She refused to return home. Despite efforts, she refused to accompany them. After that, the victim and her parents visited the Counselor of Child Welfare Centre in Nahan, where the victim told her mother that the petitioner allured her.
5. Based on these allegations, the police registered FIR under Section 363, IPC. On 3rd Nov 2020, the police took the victim for her medical examination in CHC, Shillai. A lady doctor examined the victim and preserved swabs from her body. Subsequently, she was produced before the learned Additional Chief Judicial Magistrate, Paonta Sahib, for recording her statement under Section 164 CrPC. On the evening of 3rd Nov 2020, the police arrested the petitioner. On 5th Nov 2020, the petitioner absconded from the police custody; however, he was nabbed without much time loss. The investigation further revealed that the petitioner used to propose to the victim for the last two years. In September 2020, the petitioner brought her to his sister's house, which was nearer to the victim's house. In his sister’s home, the petitioner established coitus with her. She stayed there for 6-7 days, and the petitioner gave a proposal for a wedding. On 31st Oct 2020, the accused again met her on the village path and allured her to come to his home under the pretext of tutoring her. On 1st Nov 2020, at 6 in the morning, she fell into his trap and went towards his house. The accused met her on the way and took her with him. The investigation further revealed the victim's age to be 16 years, as her birth date was 26.6.2004. Thus, being under 18 years of age, she could not have consented to leave her home and agree to sexual intercourse.
6. Mr. Sudhir Thakur, Sr. Advocate, representing the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family.
7. Mr. Ajay Vaidya, Ld. Sr. Additional Advocate General, contends the victim was minor and could not have consented to sex. The alternative contention on behalf of the State is that if this Court is inclined to grant bail, such a bond must be subject to very stringent conditions.
8. The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative and stringent conditions. In Sushila Aggarwal, (2020) 5 SCC 1, Para 92, the Constitutional Bench held that unu
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