1. Petitioner has approached this Court seeking bail in case FIR No. 226 of 2020, dated 1.11.2020, registered in Police Station West Shimla, District Shimla, H.P. under Sections 341, 342, 323, 370, 374, 376, 34 of the Indian Penal Code (for short ‘IPC’) and Sections 75, 79 of Juvenile Justice (Care and Protection of Children) Act, 2015 & Section 4 of Protection of Children from Sexual Offences Act (for short POCSO).

2. Status Report stands filed. Record was also made available.

3. Prosecution case is that on 1.11.2020, Police received an information that a small girl has been employed as a domestic help by one Brij Lal Puri. For verification of the fact, Sub Inspector alongwith Lady Constable visited the house of Brij Lal Puri and recovered the victim who disclosed that she was resident of Madhya Pradesh and her cousin (son of Chacha), prior to lockdown, 7-8 months ago had left her there and since then she was doing domestic work in the house of Brij Lal Puri. It was found that Brij Lal Puri and his wife Aarti Puri had refrained and restrained the child in their house without any written agreement or consent of her guardian and they also did not informe the Police about keeping her. The child was having little knowledge of Hindi, and suspecting a case of physical and mental harassment, she was recovered and taken in custody. Considering facts and circumstances, on the basis of rukka sent to the Police Station, FIR was registered under Sections 341, 323, 34 of IPC, 75 and 79 of Juvenile Justice (Care and Protection of Children) Act, 2015 and Section 4 of POCSO Act. Thereafter, further investigation was carried out in presence of Child Helpline Members Smt. Babita and Sanjeeta and victim was sent for medical examination to IGMC, Shimla. In ossification test of the victim, her age was confirmed between 12 and 14 years. Victim was produced before Child Welfare Committee and after obtaining order of keeping her in Child Care Institute, Tutikandi she was handed over to custody of the said institute.

4. On 5.11.2020, statement of victim was recorded under Section 164 Cr.P.C. Brij Lal Puri and Aarti Puri were arrested and enlarged on bail on furnishing bail bonds. Statements of father of victim as well as relative of victim were also recorded under Section 161 Cr.P.C.

5. As per prosecution case, on 7.11.2020, through father of victim, it came in the knowledge that victim was exploited physically also. Thereafter, supplementary statement of victim was recorded and her medical examination was conducted and on 8.11.2020 accused Suresh Kumar was interrogated and during interrogation on finding prima facie complicity in commission of offence under section 376 IPC and Section 8 of POCSO Act, petitioner Suresh Kumar was arrested and on finding complicity of Manoj Kumar in commission of offence under Sections 370, 374 and 34 of IPC, he was also arrested. Statement of victim was again recorded under Section 164 Cr.P.C. in the Court, wherein she had stated that Suresh Kumar violated her for three times in the bathroom.

6. As per prosecution case, Brij Lal Puri and Aarti Puri were beating, harassing and thrashing the victim and thus caused her physical and mental harassment and were not providing any facility of medical aid, sufficient meals, were also not paying any amount for services taken from her and were also not allowing her to talk with her parents and family members, and as such they kept her as a bonded labour for about one year and victim was not allowed to met anybody outside the home and even not allowed to go outside the home. Brij Lal Puri was running Banquet Hall and a Guest House and Suresh Kumar was engaged as a Care Taker for that purpose and Suresh Kumar by taking benefit of helplessness of victim exploited her physically.

7. Petitioner had approached the Court earlier also seeking bail by filing Cr.M.P. (M) No. 104 of 2021, which was dismissed on 4.2.2021 on merits by holding that in the facts and peculiar circumstances of the case, at that stage, petitioner had failed to make out a case for bail and liberty was granted to him to file appropriate bail application by referring the documents upon which petitioner was seeking bail. Thereafter petitioner filed another bail application Cr.MP (M) No. 766 of 2021, which was also dismissed on merits on 6.5.2021. Petitioner had again approached the Court by filing Cr.M.P. (M) No. 1409 of 2021, which was dismissed as withdrawn on 29.7.2021 with liberty to the petitioner to file fresh petition after recording statement of victim in the trial Court. Now petitioner has approached this Court by filing present petition.

8. Learned counsel for the petitioner has submitted that liberty has been granted to the petitioner to approach the Court after recording of evidence of victim, but the victim, her father and her relative, who are main witnesses in present case, are not turning up despite receiving information and service of notice upon them to appear as witnesses.

9. It has also come on record that victim, her father and her relative have left Shimla and residing in Madhya Pradesh. For examining them as witnesses, they were traced through brother of victim and were served for 28.2.2022 through Whatsapp on mobile number of her brother, but they did not turn up. Thereafter, brother of victim disclosed that victim was residing in District Mandal in Madhya Pradesh, whereupon victim, her father and her relative were traced and served through Special Messenger for 10.5.2022, but they did not appear in the court on that date also and now next date for recording their evidence has been fixed as 3.9.2022.

10. It has been contended on behalf of petitioner that at the first instance when statement of victim was recorded on 1.11.2020 under Section 161 Cr.P.C and also on 5.11.2020 under Section 164 Cr.P.C., victim did not disclose or allege any physical exploitation by the petitioner, but such allegation was leveled for the first time on 6.11.2020, as according to the prosecution her father had claimed such disclosure by the victim to him. It has been further contended that in statement of victim she has stated that she did not disclose the said fact to anyone including her father, which falsifies the stand of the prosecution that physical exploitation of victim was disclosed by the victim to her father, who in turn had informed the Investigating Agency. According to counsel for petitioner, this allegation appears to be result of tutoring by persons who came in her contact between 1.11.2020 to 6.11.2020.

11. It has been submitted on behalf of petitioner that victim is not turning up, therefore, liberty granted to the petitioner to file fresh petition after recording the statement of victim in the trial has become redundant and, therefore, petitioner is entitled for bail, at this stage, in the changed circumstances in comparison to the circumstances existing at the time of filing bail applications Cr.MP (M) Nos. 104 of 2021, 766 of 2021 and 1409 of 2021. It has been further submitted that petitioner is permanent resident of Himachal Pradesh and is having roots in the society and there is no previous criminal history indicating his involvement in any case, much less in commission of similar offence and further that for ensuring his presence in the Court, he is ready to furnish bail bonds to the satisfaction of the Court and also not to misuse the liberty in case he is enlarged on bail.

12. Learned Additional Advocate General has submitted that victim is a child and on the first date as well as on 5.11.2020 she was not having any moral or emotional support of any kind, as on that date no relative of the victim was present in Shimla and she was surrounded by strangers including Child Helpline Members and on arrival of her father at Shimla, she gained confidence and disclosed the entire incident and, therefore, plea on behalf of petitioner cannot be made basis for enlarging him on bail.

13. Without commenting upon merits of rival contention of parties, but taking into consideration material placed before me in the status report and also submission of learned counsel for the petitioner alongwith factors and parameters required to be considered at the time of adjudication of bail application, I am of the opinion that petitioner may be enlarged on bail.

14. Accordingly, petitioner is ordered to be enlarged on bail on furnishing personal bond in the sum of 1,00,000/- with one surety in the like amount, to the satisfaction of trial Court, within two weeks from today and upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to ensure presence of the petitioner at the time of trial:-

(i) That the petitioner shall join the investigation and attend the Court as and when directed to do so by the Investigating Agency/Court;

(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/her from disclosing such facts to 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 he shall keep on informing about the change in address, landline number and/or mobile number, if any, for their availability to Police and/or during trial;

(viii) he shall not leave India without permission of the Court.

15. It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner, enlarged on bail, as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.

16. In case the petitioner violates any conditions imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.

17. Learned trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.

18. Observations made in this petition hereinbefore shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.

19. The petitioner is permitted to produce copy of order downloaded from the High Court website and trial Court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.

20. The petition stands disposed of in the aforesaid terms.