IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MP(M) No. 343 of 2011 Judgment Reserved on 19.5.2011 Date of Order 2nd June, 2011 ________________________________________________________ Arvinder & another ….Petitioners. Versus State of H.P. ….Respondent. ________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. ________________________________________________________ For the Petitioner: Ms. Vidushi Sharma, Advocate. For the Respondent: Ms. Shubh Mahajan, Deputy Advocate General. ______________________________________________________________ Dev Darshan Sud, J This application has been preferred by the petitioners herein seeking their release on bail for offences under Sections 363, 366 and 34 of the Indian Penal Code. 2. The case alleged against both these petitioners is that on 10.5.2011 FIR was recorded that the complainant was an agriculturist and father of six girls. One has been married and Kiran (prosecutrix) is studying in 10+2. She was born on 8.4.1995. 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 3. On 9.5.2011 at around 8 PM at night, Kiran served meals to him and carpenter Sunder Lal. After sometime, his wife Ganga Devi informed him that some people have taken away Kiran in a pick-up van. He asked her fromwhere she had got this information, upon which she told that she was imparted this information by Vinod Kumar. He stated she informed him that she saw one boy standing near the roof of their house and he suspected that he was the person who had kidnapped his daughter. He thereafter informed the Pardhan and went in search of the girl. They stopped one pick-up vehicle bearing No. HP10A-2767, and saw that Kiran was sitting in this vehicle with two boys. Case under Sections 366 and 363 IPC was registered against the petitioners. 4. After their arrest, both the petitioners were medically examined on 10.5.2011. Kiran refused for her medical examination when she was brought to the Medical Officer on 10.5.2011 at 12.45 AM at night. The certificate of the Doctor clearly states that she was brought for medical examination, but she refused to subject herself. The date of birth of the prosecutrix has been certified to be 8.4.1995 as recorded in the Gram Panchayat’s record. From the record, I find that Sandeep has been born on 3.4.1989. 5. This application is opposed by the Deputy Advocate General. She submits that both the petitioners are guilty of serious offence of kidnapping a minor irrespective of the fact that she had consented to accompany them or not. In particular, she has referred to the statement of Kumari Kiran who states that she became familiar with Arvinder when she was staying with her 3 elder sister. She also talked/conversed with him on the phone. On 9.5.2011 he told her that he was coming to Rinole. At around 7.30 PM he talked her on mobile that he had reached Rinole and asked her to come out from her house. She asked him to come to her house, but he refused. She accepted his invitation and walked out, where she found that the accused was standing alongwith one pick-up van. Sandeep was standing outside his Bolero vehicle. Arvinder told her that he wants to marry her and asked her to accompany him. She replied that she would not get married without the consent of her parents. Arvinder was adamant; he caught hold her from her arm and dragged her and forced her to accompany him in the pick-up. This, in a nutshell, is the case of prosecution. 6. Learned counsel appearing for the petitioners submits that this is one case where no force has been used/or guile used by the petitioners and that there was no intention to kidnap the prosecutrix Kiran from the lawful custody of her parents. Learned Deputy Advocate General submits that kidnapping a minor is a heinous offence and they cannot be enlarged on bail. 7. I have heard learned counsel appearing for the parties and have also gone through the record. 8. True, at this stage, there is no final conclusion which can be arrived at merely on statement under Section 161 Cr.P.C. or on the birth certificate produced on record of the case. It is also undisputed that primfacie the statements can be scrutinised in order to judge the gravity of the crime. What I find from the statement of the prosecutrix is that no force has been used. She 4 has refused medical examination for reasons best known to her. I also notice that the petitioners are young persons. There is also nothing in the investigation to indicate that in case the petitioners are enlarged on bail, they will interfere or tamper with the prosecution evidence. At the same time this Court is not oblivious of the fact that the prosecutrix appears to be a minor and that her consent for accompanying the petitioners herein would be immaterial. But at the same time I cannot lose sight of the fact that the prosecutrix has not at any point of time raised any hue and cry which would be the case if she has been abducted by force. The petitioners are also in judicial custody. In these circumstances, I direct that both the petitioners are released on bail subject to the following conditions:- (i) That each of the petitioners shall furnish personal bond in the sum of ` 50,000/- with one surety in the like amount to the satisfaction of learned Addl. Chief Judicial Magistrate/Judicial Magistrate Ist Class, Theog, District Shimla; (ii) That the petitioners shall join investigation on each and every date as and when directed by the Investigating Officer; (iii) That the petitioners shall not tamper with the prosecution evidence or in any manner try to overawe or influence or intimidate the prosecution witnesses; (iv) That they shall not obstruct the smooth progress of the investigation as well as trial; (v) That the petitioners shall attend the Court on each and every date of hearing unless so exempted by the trial Court in accordance with law; 5 (vi) Each of the petitioners is resident of Tehsil Chirgaon, they shall not abscond from the jurisdiction of the learned Sessions Judge, Shimla. The petitioners shall be regularly supervised by the Incharge, Police Station, Chirgaon. In case any attempt is made by the petitioners to influence, terrorise or overawe any prosecution witness or in any violation of the conditions, their bail shall be liable to be cancelled and they shall be taken into custody forthwith; (vii) In case of violation of any of the conditions imposed, they shall be arrested forthwith and matter be referred to this Court. Petition stands disposed of. Dasti copy on usual terms. June 2nd, 2011 (Dev Darshan Sud), ms Judge 6