Accused and Co-Accused released on bail when investigation completed and no scope for tampering evidence or fleeing from Justice: Himachal Pradesh High Court

 Hig h C o urt of H.P on 12 05 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.MPs(M) No. 604 to 6021 Decided on: 06.05.2021 1. Cr.MP(M) No. 6021: Geeta Gupta ….Petitioner Versus State of Himachal Pradesh …Respondent 2. Cr.MP(M) No. 6021: Susheela ….Petitioner Versus State of Himachal Pradesh …Respondent 3. Cr.MP(M) No. 6021: Rahul Dhawal @ Dolly ….Petitioner Versus State of Himachal Pradesh …Respondent Coram The Hon’ble Mr. Justice Chander Bhusan Barowalia Judge. Whether approved for reporting 1 Yes. For the petitioner(s): Mr. Arvind Sharma Advocate. For the respondent State: Mr. S.C. Sharma Additional Advocate General. ____________________________________________________________________ Chander Bhusan Barowalia Judge.The matter is taken up through video conference. 2. Petitioners Geeta Gupta and Susheela have maintained petitions under Section 438 of the Code of Criminal Procedure for grant of bail in the event of their arrest in case FIR No. 121 dated 06.03.2021 under Sections 363 366A 376 120B IPC and Section 4 of POCSO Act registered at Police Station New Shimla 1 Whether reporters of Local Papers may be allowed to see the judgment Yes. Hig h C o urt of H.P on 12 05 HCHP 2District Shimla H.P. Petitioner Rahul Dhawan @ Dolly maintained a petition under Section 439 of the Code of Criminal Procedure for grant of bail in the above case. As all the petitions arise out of one incidence hence taken up together for consideration and disposal. 3. As per the petitioners they are innocent and have been falsely implicated in the present case. They are permanent residents of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice so they may be released on bail. 4. Police report stands filed. As per the prosecution on 06.03.2021 complainant made a written complaint to the police wherein it has been alleged that the prosecutrix daughter of the complainantwho studies in 10 class did not return home on 06.03.2021 after attending the school. In the evening wife of the complaint received a telephonic call and the prosecutrix informed that she is getting married with one Rahul Dhawan @ Dolly clicked photographs of the marriage ceremony from the mobile phone of petitioner Rahul Dhawan @ Dolly. Co accused Geeta Gupta and Susheela have already been enlarged on interim bail by this Court vide order dated 26.03.2021. It has further come in the police report that the police effected the relevant recoveries. As per the police investigation in the matter is complete and now challan is under consideration and will be filed soon. Lastly it is prayed that the applications of the petitioners be dismissed as they were found involved in a serious crime the petitioners in case at this stage are enlarged on bail they may tamper with the prosecution evidence and may also flee from justice. 5. I have heard the learned Counsel for the petitioners learned Additional Advocate General for the State and gone through the records including the police report carefully. 6. The learned counsel for the petitioners has argued that the petitioners are innocent and they are neither in a position to Hig h C o urt of H.P on 12 05 HCHP 4tamper with the prosecution evidence nor in a position to flee from justice as they are permanent residents of the place. He has further argued that investigation in the matter is complete nothing remains to be recovered either from the petitioners or at their instance custody of the petitioners is not at all required by the police. The petitioners are ready and willing to be abide by the terms and conditions of bail in case granted so considering all the facts and circumstances which emerge the petitions may be allowed and the petitioners may be enlarged on bail. Conversely learned Additional Advocate General has argued that the petitioner Rahul Dhawan @ Dolly has committed heinous crime and other petitioners Geeta Gupta and Susheela played an active role in commission of the crime. He has further argued that in case at this stage the petitioners are enlarged on bail they may flee from justice or tamper with the prosecution evidence. Considering the seriousness and gravity of the offence and overall facts and circumstances of the case the bail applications of the petitioners may be dismissed. 7. In rebuttal the learned Counsel for the petitioners have argued that the petitioners are local residents of the place and thus they are neither in a position to flee from justice nor in a position to tamper with the prosecution evidence and the custodial interrogation of the petitioners is not at all required by the police as the investigation is complete and now the custody of the petitioners is not at all required. He has further argued that sending the petitionersbehind the bars will not Hig h C o urt of H.P on 12 05 HCHP 5serve any fruitful purpose and keeping petitioner Rahul Dhawan @ Dolly behind the bars for an unlimited period will also not serve any purpose as his custody is not at all required by the police and nothing remains to be recovered at his instance so the petitions be allowed and the petitioners be enlarged on bail. 8. At this stage considering the manner in which the incident is alleged to have taken place the fact that all the petitioners are residents of the place so neither in a position to flee from justice nor in a position to tamper with the prosecution evidence considering the fact that investigation in the matter is complete nothing remains to be recovered either from the petitioners or at their instance petitioners Geeta Gupta and Susheela are joining the investigation and co operating in it custody of the petitioners is not at all required by the police the fact that by sending the petitioners Geeta Gupta and Susheela behind the bars will not serve any fruitful purpose and also the fact that keeping petitioner Rahul Dhawan @ Dolly behind the bars for an unlimited period will also not serve any fruitful purpose especially when investigation is complete nothing remains to be recovered either from the petitioners or at their instance and also considering the fact that the petitioners are ready and willing to abide by the terms and conditions of bail in case granted and also considering all the facets of the case and without discussing them elaborately this Court finds that the present is a fit case where the judicial discretion to admit the petitionerson bail in the event of their arrest in this case is required to be Hig h C o urt of H.P on 12 05 HCHP 6exercised in their favour. Accordingly their petitions are allowed and it is ordered that the petitioners Geeta Gupta and Susheela in the event of their arrest in case FIR No. 121 dated 06.03.2021 under Sections 363 366A 376 120B IPC and Section 4 of POCSO Act registered at Police Station New Shimla District Shimla H.P. shall be released on bail forthwith subject to their furnishing personal bond in the sum of Rs.25 000 each with one surety each in the like amount to the satisfaction of the Investigating Officer. 9. As far as petitioner Rahul Dhawan @ Dolly is concerned he is also enlarged on bail in case FIR No. 121 dated 06.03.2021 under Sections 363 366A 376 120B IPC and Section 4 of POCSO Act registered at Police Station New Shimla District Shimla H.P. subject to his furnishing personal bond in the sum of Rs. 50 000 with one surety in the like amount to the satisfaction of the learned Trial Court. 10. The petitioners are granted bail subject to the following conditions: That the petitioners will appear before the learned Trial Court Police authorities as and when required. That the petitioners will not leave India without prior permission of the Court. That the petitioners will not directly or indirectly make any inducement threat or promise to any person acquainted with the facts of the case so as to dissuade him her from disclosing such facts to the Investigating Officer or Court. Hig h C o urt of H.P on 12 05 HCHP 7 Cr.MP(M) No. 604 to 6021 11. In view of the above the petitions are disposed of. Copy dasti. 6th May 2021 Judge 

Summary: On hearing a case under section 363, 366A, 376, 120B of IPC and section 4 of the POCSO act, it was decided when the investigation is complete and there is no scope for fleeing from justice the bail may be granted. This judgment was passed in the case of Geeta Gupta vs. State of Himachal Pradesh with Susheela vs. State of Himachal Pradesh and Rahul Dhawan @Dolly vs. State of Himachal Pradesh [Cr.MPs(M) No. 604 -606/2021] by a Single Bench consisting of Hon’ble Shri Justice Chander Bhusan Barowalia. The petitioners Geeta and Susheela filed for grant of bail under section 438 of the Code of criminal procedure (Cr.P.C) while Rahul Dhawan filed for a grant of bail under section 439 of the same with regards to their arrest under section 363, 366A, 376, 120B of IPC and section 4 of the POCSO Act. The prosecution claims the daughter of the complainant did not return home from school (10th Class) and the wife of the complainant received a call from the prosecutrix who informed she is getting married to Rahul Dhawan, one of the petitioners. The complainant filed a case stating that the petitioner had taken his daughter and registered a case with the police. On investigation, it came to light that the petitioner picked her up and bought materials for their marriage. They married in the absence of a priest at a temple. The co-accused had taken photos of the marriage. The police procured the car that the petitioner and prosecutrix had used and the details of the hotel in which they resided along with the date of birth details. The petitioner produced the prosecutrix before the police. She was medically examined and her statement under sections 161 and 164 of Cr.P.C. was recorded. While the counsel for the petitioners argued that they are innocent and would not tamper with the evidence or witness as they are permanent residents of the place. They also stated that they will abide by all conditions in order. The Counsel for the State argued that they have committed a heinous crime with active participation. Considering the seriousness of the offence and the facts and circumstances they shouldn’t be enlarged on bail. The counsel for petitioners rebutted the claim by stating that the investigation is complete as far as the police is concerned, thus not requiring custodial interrogation. The Hon’ble High Court held that since there will be nothing fruitful out of the Custodial investigation and there is nothing left to recover from the petitioners the grant of bail would be exercised in their favour. Furthermore, the petitioners are co-operating in the investigation and their permanent residence is local there is no question of fleeing from justice or tampering with the evidence and witnesses. Based on the above grounds the petitioners were granted bail. Geeta and Susheela were granted bail on furnishing a bond of Rs. 25000/- and Rahul Dhawan on furnishing a bond of Rs. 50000/-.