KAMAL WALIA Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Bail petitioner namely Kamal Walia, who is behind bars since 23.12.2017, has approached this Court by way of instant proceedings, filed under Section 439 of Cr.PC, seeking therein his regular bail in case FIR No. 523/17 dated 21.12.2017, under Sections 376 and 506 of IPC and Section 4 of POCSO Act, registered at PS Paonta Sahib, District Sirmaur, HP.

(2.) Sequel to order dated 16.4.2018 passed by this Court, ASI Vidya Sagar, P.P Rajban, P.S. Paonta Sahib, District Sirmaur, HP, has come present in Court alongwith record of the case. Record perused and returned. Mr. Dinesh Thakur, learned Additional Advocate General, has also placed on record status report prepared on the basis of the investigation carried out by the investigating agency, perusal whereof suggests that complainant namely Mitra Devi lodged a complaint with police on 17.4.2018, stating therein that her daughter (herein after referred to as "the prosecutrix") was studying in class-9 in High School, Sataun, in the year, 2016, but since bail petitioner used to tease her, she left her studies and went to sister's place at Karnal. Complainant further alleged that on 7.4.2018, prosecutrix, who was reluctant to come back from Karnal, disclosed to her that bail petitioner not only teased her but also developed physical relations with her against her wishes on the pretext of marriage. Complainant also reported to the police that she had brought factum with regard to the aforesaid behavior of the bail petitioner to his mother namely Shanti Devi, who instead of making her son understand, proposed for the marriage of his son with the prosecutrix. Complainant further alleged that her daughter being minor is/was not enough mature and fell into trap of bail petitioner, who taking undue advantage of her innocence spoiled her life. On the basis of aforesaid complaint, formal FIR as detailed herein above, came to be lodged against the bail petitioner and since, 23.12017, bail petitioner is behind the bars.

(3.) Mr. Vinod Chauhan, Advocate, representing the bail petitioner while referring to the status report/record, vehemently contended that no case, if any, is made out against the bail petitioner under Section 376 of IPC, and as such, bail petitioner deserves to be enlarged on bail. He further contended that allegation pertains to year, 2016, whereas complaint in this regard came to be lodged in December, 2017 and no explanation, if any, has been rendered on this count, by the complainant. Mr. Chauhan, further contended that bare perusal of complaint having been filed by the complainant itself suggests that mother of the prosecutrix was in know of things, rather families of both bail petitioner and prosecutrix had agreed for marriage between bail petitioner and prosecutrix. While referring to the medical evidence adduced on record by the Investigating Agency, Mr. Chauhan contended that no definite evidence suggestive of the fact that prosecutrix was subjected to sexual inter-course by the bail petitioner, has come to the fore and as such, bail petitioner, who is a young boy of 21 years, deserves to be enlarged on bail. Mr. Chauhan, further contended that as per instructions imparted to him, parties have resolved to settle their dispute inter-se them amicably. He further stated that complainant as well prosecutrix have come in the court to state that FIR was lodged due to mis-understanding and they have no objection, in case, FIR lodged against the bail petitioner at the behest of the complainant, is quashed and set-aside. He further contended that families of the bail petitioner and prosecutrix have agreed in principal to solemnize marriage of the bail petitioner with the prosecutrix. Mr. Chauhan, further contended that investigation in the case is complete and nothing is required to be recovered from the bail petitioner and as such, he can be ordered to be released on bail by putting him to stringent conditions.