Devinder Kumar vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

The petitioner seeks his enlargement on regular bail in FIR No.17/2021, dated 03.03.2021, registered under Sections 452, 342, 323, 376 and 504 of the Indian Penal Code (IPC) at Police Station Gohar, District Mandi, H.P.

Heard learned counsel on both sides and also considered the case file as well as the record produced by the respondent.

Sequence of Events:-

3(i). The FIR was registered against the petitioner on the basis of a complaint lodged by the prosecutrix, aged 45 years. The petitioner was arrested in the said FIR on 03.03.2021. His bail application was initially rejected by the learned Trial Court on 23.04.2021 on the ground that investigation at that time was at initial stage and neither the RFSL report nor the final opinion of the Doctor was available. Cr.MP(M) No.832 of 2021 moved by the petitioner for grant of bail in the aforesaid FIR was dismissed as withdrawn on 31.05.2021.

3(ii). On completion of investigation, the petitioner moved fresh bail application before the learned Trial Court on 06.07.2021. This application was allowed on 30.07.2021. While allowing the application, learned Trial Court observed that investigation in the matter was complete; Challan had been filed; The medical opinion clarified that semen and blood were not detected in the exhibits pertaining to the victim; The Doctor opined that there was nothing suggestive of sexual intercourse.

3(iii). The petitioner, it seems, did not appear on certain occasions before the learned Trial Court, hence, was declared ‘proclaimed offender’ on 20.03.2023. The Police arrested him on 11.08.2023.

3(iv). Subsequent to his arrest on 11.08.2023, the petitioner moved bail application before the learned Trial Court on 05.09.2023, which was dismissed on 11.09.2023.

It is in the aforesaid background that the petitioner has moved present petition seeking bail under Section 439 of the Code of Criminal Procedure.

Learned counsel for the petitioner referred to zimni orders passed in the matter by the learned Trial Court to stress the pleaded case of the petitioner that he had been regularly attending the hearing of the case before the learned Trial Court from time to time. Learned counsel submitted that for a long duration, effective hearing in the matter could not take place for want of posting of the Presiding Officer. It was subsequent thereto that the petitioner was declared proclaimed offender. Learned counsel for the petitioner further submitted that the petitioner has no intention to avoid appearing before the learned Trial Court and he hereby undertakes to appear before the learned Trial Court on every date of hearing in accordance with law.

Learned Deputy Advocate General has not disputed the sequence of events noticed above. He, however, submits that in case the Court is inclined to grant bail to the petitioner, the same be made subject to stringent conditions.

It is not in dispute that the petitioner had earlier been enlarged on bail by the learned Trial Court on 30. 07.2021. While granting regular bail to the petitioner, learned Trial Court had noted that as per medical opinion, semen and blood were not detected in the exhibits pertaining to the victim and there was nothing suggestive of sexual intercourse. Daily order sheets of the case appended with the petition do give an impression of there being no effective hearing in the case before the learned Trial Court for months together on account of non-posting of the Presiding Officer (Additional Sessions Judge-I, Mandi). As indicated by the order sheets, from 11.01.2022 to 31. 10.2022, the Court was lying vacant for want of posting of the Presiding Officer. The matter was lastly ordered to be listed on 09.12.2022, however, it was actually taken up on transfer on 23.11.2022 by the learned Sessions Judge, Mandi, when notice was ordered to be issued to the petitioner as well as to his surety returnable for 28.12.2022. Though it is a fact that the petitioner did not remain present before the learned Sessions Judge on the given date, however, the plea advanced by learned counsel for the petitioner is that the petitioner actually was not present in his house. That all throughout he had been working in Chandigarh, Baddi etc. to make his living and it is for that reason that he was not aware of the notices/ proclamation proceedings. It was only after his arrest on 11.08.2023 that he became aware of the fact that effective hearings had again started in the case. In the given facts and circumstances, I am inclined to accept the version of the petitioner as projected by learned counsel for petitioner’s absence during hearings before the learned Trial Court on 23.11.2022, 28.12.2022 and 23.01.2023. Petitioner’s bail application moved by him on 05.09.2023, post his arrest on 11.08.2023, has been dismissed by the learned Trial Court on 11.09.2023, however, the perusal of the order passed, in particular paragraphs 13 and 14 thereof, give the impression as if the learned Trial Court was considering petitioner’s anticipatory bail application. The order is oblivious to the actual sequence of events of the case.

For the foregoing reasons, the petitioner, in my considered view, has made out a case for his enlargement on bail. Accordingly, the instant petition is allowed.

Petitioner is ordered to be released on bail in the aforesaid FIR on his furnishing personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand only) with two local sureties each in the like amount to the satisfaction of the learned Trial Court having jurisdiction over the Police Station concerned, subject to the following conditions:-

(i). The petitioner shall join and cooperate the investigation of the case as and when called for by the Investigating Officer in accordance with law.

(ii). The petitioner shall not tamper with the evidence or hamper the investigation in any manner whatsoever.

(iii) . The petitioner will not leave India without prior permission of the Court.

(iv). The petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer, prosecutrix and her family members or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer.

(v). The petitioner shall attend the trial on every hearing, unless exempted in accordance with law.

(vi). The petitioner shall inform the Station House Officer of the concerned police station about his place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of his Aadhar Card, Telephone Number, E-mail, PAN Card, Bank Account Number, if any.

In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter.

Learned Trial Court shall decide the matter without being influenced by any of the observations made hereinabove.

With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous application(s), if any.