Satyen Vaidya, J
1. Petitioner is an accused in case FIR No. 34 of 2021, dated 5.3.2021, registered at Police Station Sadar, District Shimla, H.P. under Sections 363, 366-A, 370-A, 506 and 120-B of IPC. He was arrested on 23.4.2021 and since then, he is in custody.
2. Brief facts of the case are that the father of victim on 5.3.2021 reported to the police that his minor daughter aged about fifteen years (victim) had not returned home from the school and on inquiry, he had found that the students were not even required to attend the school on the said date. Police registered a case under Section 363 IPC. During investigation, the location of mobile phone used by the victim was found somewhere in Haryana. It was presumed that victim was travelling towards Delhi. A police party reached Delhi. On further analysis of the call detail records of the mobile phone, which was in contact with mobile number of the victim, one person named Jatin Malik was tracked. On interrogation of the Jatin Malik, it was found that the victim had taken a lift in his vehicle on the night of 5.3.2021 from a place near Panipat. The victim while travelling in the vehicle of Jatin Malik had contacted a person named Zubair (petitioner) from the mobile phone of Jatin Malik. The caller from the other side had sent a location on the mobile number of Jatin Malik with direction to leave the victim at such location. Finally Jatin Malik had dropped the victim at about 10.30 p.m. at NTPC Chowk, Badarpur, Delhi, where a boy had received her.
3. During further investigation, it was found that the boy, who had received the victim, was named Ibrahim and he had further dropped the victim with a female named Nasrin at Village Dhakiya in Uttar Pradesh. Lastly, the victim was recovered on 8.3.2021 and was handed over to her father.
4. The investigation was completed and challan was filed in the Court. Prosecution has come up with allegations that the victim had left her home at the instance of one Nazim @ Sameer and the petitioner. It is alleged that the petitioner, Nazim @ Sameer, Ibrahim and other co-accused had entered into a criminal conspiracy and thereby had enticed the victim to leave her home. They had intended to send the victim abroad with ulterior motive. It is further alleged against the petitioner and Nazim @ Sameer that they were telephonically contacting the victim and had made all arrangements for her travel to Delhi and further beyond the country.
5. Petitioner has approached this Court for grant of bail on the ground that he has been falsely implicated. Specific contention of the petitioner is that he was working as a Motor Mechanic at Chennai at the relevant time. Merely on the basis of his telephonic conversations with Nazim @ Sameer and Ibrahim, his implication is hypothetical. After completion of investigation, no legal evidence has been found against the petitioner. He is in custody for the last about two years. The material witnesses in the case have already been examined. He has also sought the bail on the ground of parity as his co-accused namely Ibrahim, Nasreen and Ivad have already been released on bail. Learned counsel for the petitioner contended that the petitioner is entitled for bail on the ground of parity with his co-accused Ibrahim, as the allegations against whom are more serious in nature than the petitioner. Petitioner has undertaken to abide by all the terms and conditions as may be imposed.
6. On the other hand, learned Additional Advocate General has opposed the prayer for bail on the ground that petitioner is involved in a serious offence. The charges, if proved, against the petitioner may entail severe punishment. Petitioner belongs to Uttar Pradesh and there is likelihood of his absconding from the course of justice.
7. I have heard learned counsel for the parties and have also gone through the record carefully.
8. It is not in dispute now that the trial of the case has already commenced. The victim and her father have already been examined as prosecution witnesses. A number of witnesses still remain to be examined.
9. The allegation against the petitioner is that he had conspired with Nazim @ Sameer to facilitate the elopement of the victim under a false promise of marriage extended to her by Nazim @ Sameer. Except for the allegation of telephonic conversations by petitioner, no other evidence has been found against him to allege any overt act on his part.
10. As noticed above, the trial has already commenced and material witnesses i.e. the victim and her father have already been examined. Thus, there is no apprehension that petitioner, if released on bail, will be in a position to exert pressure on the victim or her father to win them over. Petitioner has already been in custody for about one year and ten months. Allegations against the petitioner are still to be proved. His pre-trial incarceration for indeterminate period will not be in the interest of justice. Speedy trial is a right vested in the petitioner.
11. Further a Coordinate Bench of this Court has already ordered the release of co-accused Ibrahim on bail vide order dated 30.12.2022, passed in Cr.MP(M) No. 1983 of 2022. In the given facts of the case, the petitioner is entitled for the same treatment as given to co-accused Ibrahim. The case of petitioner, at least at this stage, cannot be said to be different than the case of co-accused Ibrahim.
12. The apprehension of respondent-State that the petitioner may abscond from the course of justice also remains unsubstantiated, as no tangible material has been placed on record for such purpose. Merely, because petitioner belongs to other State cannot be used as a ground to deny him the right of bail. For securing the presence of petitioner for the purpose of trial, he can be put to appropriate terms.
13. Keeping in view the peculiar facts and circumstances of the case, petition is allowed and the petitioner is ordered to be released on bail in case FIR No. 34 of 2021, dated 5.3.2021, registered at Police Section Sadar, District Shimla, H.P. under Sections 363, 366-A, 370-A, 506 and 120-B of IPC, on his furnishing personal bond in the sum of Rs. 2,00,000/- with two sureties in the like amount, one of whom should are necessarily to be having immoveable property in the State of Himachal Pradesh, to the satisfaction of the learned trial Court. This order shall be subject to following conditions:-
i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required;
ii) That the petitioner shall 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 from disclosing such facts to the Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;
iii) That the petitioner shall not obstruct the smooth progress of the investigation/trial;
iv) That the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;
v) That the petitioner shall not misuse his liberty in any manner;
vi) That the petitioner shall not jump over the bail;
vii) That in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by prosecution;
viii) That the petitioner shall not leave the territory of India without prior permission; and
ix) That the petitioner shall inform the Police/Court his contact number and shall keep on informing about change in address and contact number, if any, in future.
14. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.
