IN THE HIGH COURT OF HIMACHAL PRADESH,SHIMLA. Cr.M.P.(M) No. 1091 of 2011. Date of decision: 30.12.2011. _______________________________________________________ Sh. Sunil Kumar son of Trilok Chand, r/o Balakrupi, P.O. & Tehsil Joginder Nagar, District Mandi, H.P. ….. Petitioner. Versus State of Himachal Pradesh. …. Respondent. ________________________________________________________ Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Petitioners : Mr. Anuj Gupta, Advocate and Mr. Rohit Sharma, Advocate. For the Respondent : Ms.Ruma Kaushik, Addl.Advocate General with Mr. J.S.Rana, Asstt. Advocate General. Kuldip Singh, J (Oral) This is an application under Section 438 Cr.P.C. for releasing the petitioner on bail in FIR No.298/2011 dated 15.12.2011, registered at Police Station, Sadar, Mandi, H.P. under Sections 366, 376 IPC. 2. It has been stated that the petitioner has not committed any offence and he has been falsely implicated with a view to pressurize him to get married to the prosecutrix. It has been stated that petitioner is just 18 years and is not eligible for marriage. The allegations in the FIR are false and based upon concocted story. Whether the reporters of the local papers may be allowed to see the Judgment?Yes 3. The petitioner neither enticed nor taken away the custody of the prosecutrix who is major and much elder to the petitioner. The prosecutrix had been moving with the petitioner at various public places. 4. The custodial interrogation of the petitioner is not required. The petitioner is ready to join the investigation and furnish bail bonds in accordance with the directions of this Court. The prayer has been made for releasing the petitioner on bail under Section 438 Cr.P.C. 5. The bail application has been opposed by the State on the basis of status report. It has been stated that case has been registered on the basis of complaint lodged by the prosecutrix on 15.12.2011. It has been stated that about two months ago the prosecutrix had gone to the house of her elder sister and she met the petitioner. Both of them exchanged their mobile phone numbers. The petitioner told the prosecutrix that he would marry her. On 8.12.2011 she had gone to the house of her another elder sister in village Navrot. On 9.12.2011 on the asking of the petitioner she reached Mandi at about 5.20. p.m. The petitioner told prosecutrix that they would perform marriage. 6. The prosecutrix and petitioner reached Joginder Nagar at about 12.45 mid night and prosecutrix stayed in the house of petitioner. The petitioner during night had sexual intercourse with prosecutrix. On 11.12.2011 both of them went to Brijeswari Devi temple, Kangra, On 12.12.2011, both of them went to Jawalaji temple and stayed in a rented room where petitioner had sexual intercourse with her. On 13.12.2011 both of them proceeded to Delhi via Chandigarh and reached Delhi on 14.12.2011 at about 11 a.m. The father of the petitioner is working in some Guest House in Delhi. 7. The petitioner refused to marry prosecutrix and sent her back to Chandigarh on 14.12.2011 from Delhi alongwith one Nikku. The prosecutrix narrated the incident to her mother on phone, who brought her to Mandi alongwith Riwalsar police. She has stated that petitioner under the pretext of marriage performed sexual intercourse with her. On this case has been registered. 8. The date of birth of the prosecutrix as per School Certificate is 9.4.1993 and as per Radiological examination her age comes to 17 to 19 years. The petitioner joined the investigation after obtaining interim bail on 24.12.2011 but he is not disclosing the truth. The prayer has been made for rejection of the bail application 9. I have heard both sides and perused the police file. The learned counsel for the petitioner has submitted that from the prosecution story itself no case of forcible sexual intercourse is made out against the petitioner. The prosecutrix was above 16 years on the date of commission of alleged offence. It emerges from the prosecution story that prosecutrix stayed with the petitioner at different places from 9.12.2011 to 14.12.2011. She traveled from one place to another place and had sexual intercourse with the prosecutrix. During this period there is nothing on record to show that parents of prosecutrix or any one had showed any concern regarding the prosecutrix. The date of birth of the prosecutrix as per School Certificate is 9.4.1993 , therefore, on the date of alleged commission of offence she was +18 years. The prosecutrix has education upto 9th pass standard. Thus, she is not illiterate rustic girl. She knew what she was doing when she stayed with petitioner at different places and had sexual intercourse with him. The possibility cannot be ruled out that prosecutrix in the company of petitioner out of emotion, desire participated in the sexual act. The petitioner himself is young and almost is of the age of the prosecutrix. The finer aspects of the prosecution case will be considered during trial. The petitioner has stated that he is preparing for 10th class examination in March, 2012 as private student. 10. In Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. 2011 Cri. L.J. 3905, the Supreme Court has held that it is imperative for the courts to carefully and meticulous precision evaluate the facts of the case. The discretion must be exercised on the basis of the available material and facts of the particular case. In cases where the court is of the considered view that the accused has joined investigation and he is fully co-operating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. 11. The Investigating Agency in the status report has stated that petitioner is not disclosing the true facts regarding the clothes which he was wearing and used at the time of commission of offence and those clothes are to be recovered from the petitioner. Therefore, submission has been made not to grant bail under Section 438 Cr.P.C. The corroborative material in support of the plea that petitioner is not cooperating in the investigation has not been placed on record. Therefore, in absence of such material it cannot be said that petitioner is not cooperating in the investigation by providing clothes. 12. The Investigating Agency is conducting the investigation even when petitioner is not in actual physical custody of the police. This position will continue even after the grant of bail to the petitioner. In the facts and circumstances of the case, the petitioner has made out a case for grant of bail under Section 438 Cr.P.C. 13. In view of above, the application is allowed. In the event of arrest of the petitioner in FIR No.298/2011 dated 15.12.2011, registered at Police Station, Sadar, Mandi, H.P. under Sections 366, 376 IPC he be released on bail on his furnishing personal bond in the sum of `50,000/- with one surety of the like amount to the satisfaction of Arresting Officer with the condition that the petitioner shall continue to join the investigation as and when called by the Investigating Officer and shall co-operate in the investigation. In case, the petitioner shall not co-operate in the investigation, the investigating agency shall be at liberty to approach for cancellation of bail of the petitioner. The petitioner shall not tamper with the prosecution evidence and hamper the investigation in any manner. 14. The observations made in the judgment are for disposal of the bail application and it shall not be construed as expression of opinion on the merits of the case. Copy ‘Dasti’. December 30, 2011 (Kuldip Singh), (sks) Judge.