CRMPM/1546/2017 of PANKAJ KUMAR Vs STATE OF HP on 28 December 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

Cr.MP(M) No. 1546 of 2017

Decided on: 28.12.2017

__________________________________________________________________ Pankaj Kumar ………..Petitioner Versus State of Himachal Pradesh ……….Respondent __________________________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? [1]

For the Petitioner : Mr. K.B. Khajuria, Advocate, for the petitioner. For the Respondent : Mr. Vikram Thakur, Deputy Advocate General.

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Sandeep Sharma, Judge (oral):

Bail petitioner namely Pankaj Kumar apprehending his arrest has approached this Court by way of interim bail petition filed under Section 438 of Cr.PC, in case FIR No. 285/17, dated 21.12.2017, under Sections 365, 366 and 120 B of IPC, registered at P.S. Indora, District Kangra, H.P.

2. Sequel to order dated 21.12.2017, SI Kuldeep Sharma, I/C PP Damtal, District Kangra, H.P. has come present along with records. Record perused and returned. Mr. Vikram Thakur, learned Deputy Advocate General, has also placed on record status report prepared on 1Whether the reporters of the local papers may be allowed to see the judgment?

the basis of investigation carried out by the Investigating Agency till date, perusal whereof suggests that the complainant namely Joginder Pal filed complaint under Section 156 (3) Cr.PC, in the Court of learned JMIC-I, Indora, seeking therein direction to SHO Indora, to lodge an FIR against the accused including the present petitioner under Sections 365, 366 and 120 B of IPC. The complainant alleged that her daughter namely Ritika who is aged about 21 years, has been kidnapped by the bail petitioner. After having received the direction from JMIC, Indora, police of PS Indora registered the aforesaid FIR against the present bail petitioner and his family members. In the aforesaid background, present bail petitioner apprehending his arrest, approached this Court by way of instant pre-arrest bail application.

3. On 21.12.2017, the petitioner appeared before this Court along with MS Ritika and they were identified by the learned counsel for the bail petitioner. Petitioner as well as Ritika stated before this Court that they have solemnized inter-cast marriage on 15.12.2017, against the wishes of her family and as such, complainant Joginder Pal, who happens to be father of the girl namely Ritika, has approached learned JMIC-I, Indora, under Sections 156 (3) of IPC, seeking therein direction to SHO P.S. to lodge an FIR against the bail petitioner as well as his family members.

4. Bail petitioner also placed on record copies of matriculation certificate of girl namely Ritika to demonstrate that she being a major is entitled to take her decision independently without there being any external pressure from her family. This Court vide order dated 21.12.2017, while granting interim bail to the bail petitioner directed him to join investigation at PS Indora on 23.12.2017.

5. Today during the proceedings of the case, learned Deputy

Arguments

Advocate General on instructions from Investigating Officer, who is present in the Court, fairly contended that petitioner joined investigation in terms of order passed by this Court. Mr. Thakur, further contended that during investigation, it has come that bail petitioner and girl namely Ritika were known to each other for a considerable time and they have been meeting each other frequently. While referring to the record/status report, learned Deputy Advocate General, further contended that matriculation certificates produced by the petitioner as well as Ritika clearly suggest that both are major and they have got married with each other of their own will without there being any external pressure. While inviting attention of this court to the statement made by Ms. Ritika, learned Deputy Advocate General, contended that she has categorically stated before the Investigating Agency that bail petitioner had not forced her to leave her paternal house, rather she of her own will solely with an intention to solemnize marriage with the bail petitioner willfully went to Pathankot and thereafter, solemnized marriage with him at Brij Raj Swami Temple, Nurpur, District Kangra, H.P. Ms. Ritika further stated to the Investigating Agency that since she has solemnized an inter-caste marriage with the bail petitioner, she is being threatened and forced by her father to leave the company of the bail petitioner.

6. After having carefully perused the record/status report, this Court is convinced and satisfied that Ritika has left the house of her parents of her own free will without any pressure from the bail petitioner and as such, there appears to be considerable force in the arguments of learned counsel for the petitioner that no case is made out under Sections 365, 366 and 120 B of IPC against the bail petitioner and he deserves to be enlarged on bail.

7. This Court has been informed that Ritika was produced before the JMIC Indora on 23.12.2017, for recording of her statement under Section 164 Cr.PC, but on that date, her statement was not recorded and the matter was fixed for 2.1.2018. This Court hopes and trust that statement of Ritika shall be recorded by the court below on the date she is produced by the Investigating Agency. Needless to say, police shall ensure safety of the couple on 2.1.2018, when her statement would be recorded by the JMIC concerned.

8. 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.

9. The Hon’ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496, has laid down the following principles to be kept in mind, while deciding petition for bail:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail; bail;

(v) character, behaviour, means, position and standing of the accused; accused;

(vi) likelihood of the offence being repeated; (vii)reasonable apprehension of the witnesses being influenced; and (vii)reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.

10. Consequently, in view of the above, order dated 21.12.2017.

passed by this Court, is made absolute, subject to the following conditions:

a.He shall make himself 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; 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.He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; investigation of the case in any manner whatsoever;

c.He 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 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.He shall not leave the territory of India without the prior permission of the Court. the Court.

11. It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.

12. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone.

The bail petition stands disposed of accordingly.

Copy dasti.

28[th] December, 2017 (Sandeep Sharma), manjit Judge