Allowed

Kuldeep Kumar v. State of Hp

Himachal Pradesh HC7 Apr 2015CRMPM/322/2015

Case brief

AI extract

What is this about?

Court granted anticipatory bail to the petitioner in an FIR under Section 376 IPC. The court held that sexual acts between betrothed parties under customary rituals were consensual, prima facie constituting no offence, and found no risk of absconding or evidence tampering.

What did the court decide?

Anticipatory bail granted to the petitioner on conditions including personal bond, joining investigation, not influencing witnesses, and not leaving India without permission.

Kuldeep Kumar Vs State of Hp — Child Sexual Offences (POCSO) | Himachal Pradesh HC (2015)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr.MP(M) No. 322 of 2015.

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Decided on:7^th April, 2015.

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Kuldeep Kumar ...Petitioner. VERSUS State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Sureshwar Thakur, Judge. Whether approved for reporting? For the petitioner: Mr. Naveen K. Bhardwaj, Advocate. For the Respondent: Mr. Vivek Singh Attri, Deputy Advocate General. ______________________________________________________________

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Sureshwar Thakur, Judge. (Oral)

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The instant petition has been moved under Section 438

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of the Code of Criminal Procedure for grant of anticipatory bail to

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the applicant/petitioner in respect of an F.I.R No. 5/2015 of 26.03.2015 lodged at Police Station Pangi, District Chamba, H.P. under Section 376, IPC.

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Uncontrovertedly, the prosecutrix is a major. Uncontrovertedly, the bail applicant and the prosecutrix stood

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…2…

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betrothed. Subsequent to their betrothal, under the existing of customs/rituals prevailing in the area, where both, the bail applicant and the prosecutrix reside, they had repeated sexual intercourses. The learned Deputy Advocate General contends that the sexual intercourses or encounters inter se the bail applicant and the prosecutrix subsequent to their betrothal was under an impression garnered by the prosecutrix that her marriage with the bail applicant would soon got consummated, as such, the sexual encounters inter se the bail applicant and the prosecutrix acquire a tinge of theirs being begotten in sequel to an allurement of marriage meted out by the bail applicant to the prosecutrix. However, the said submission is rudderless in the face of the fact that the factum of betrothal inter se the bail applicant and the prosecutrix erodes as well as wanes the effect, if any, of the sexual encounters/intercourse inter se the bail applicant and the prosecutrix being begotten in sequel to a promise or allurement to marry having meted out by the bail applicant to the prosecutrix, more so, when the marriage inter se both, the bail applicant and the

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prosecutrix in sequel to their betrothal was assured to be consummated. It has so happened that the rituals prevalent in the area permitting access of the bail applicant to the prosecutrix ensured the latter having sexual intercourse with her. The said rituals, if any, exiting or prevailing in the area where both reside, are abhorrent to social mores, as also, are in derogation of public policy. The prosecutrix when has indulged in sexual promiscuity with the bail applicant, whereas she had to avoid sexual encounters with the bail applicant till her marriage, as such, this Court forms an opinion that the act of the prosecutrix having sexual encounters with the bail applicant under the garb of the customs/rituals existing in the area where they reside, especially when such customs/rituals which permit the bail applicant to on their betrothal access the prosecutrix though are abhorrent to social mores, is consensual besides shorn of any pretextuality or allurement. Moreover, even if, the bail applicant has not revered his betrothal with the prosecutrix, rather has proceeded to marry a girl other than

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the prosecutrix, the remedy for irreverence, if any, of betrothal or

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breach of contract of marriage is available to the prosecutrix under the Civil Law. Consequently, prima facie no offence is constituted against the bail applicant at this stage. Further given the absence of material demonstrating that in the event of bail being granted to the bail applicant, there is every likelihood of the bail applicant fleeing from justice or tampering with the prosecution evidence, as a sequel, then this Court does not deem it fit and proper to order for the custodial interrogation of the bail applicant. Accordingly, indulgence of bail is granted to the bail applicant and the order rendered on 31^st March, 2015 is confirmed on the following conditions:-

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(i) that the bail applicant shall furnish personal bond in the sum of Rs.50,000/- with one surety in the like amount to the satisfaction of the Arresting Officer

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(ii) that he shall join the investigation as and when required by the Investigating Agency;

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(iii) that he shall not directly or indirectly, make any inducement, threat or promise to any person

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acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court

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or to any police officer;

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(iv) that he shall not leave India without the permission

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of the Court;

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(v) that in case of violation of any of these conditions, the bail granted to the petitioner shall be forfeited

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and he shall be liable to be taken into custody; and

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(vi) that he shall apply for bail afresh when the challan is filed before the trial Court.

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However, it is made clear that the findings recorded herein

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above shall have no bearing on the merits of this case. Application is allowed accordingly.

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Dasti Copy.

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7^th April, 2015. (jai)

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(Sureshwar Thakur)

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Judge

Kuldeep Kumar v. State of Hp

Case brief

What is this about?

What did the court decide?

Kuldeep Kumar v. State of Hp

Case brief

What is this about?

What did the court decide?

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