Shashi Sham v. State Of Haryana

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH 228+106 DATE OF DECISION :- 03.12.2024 Shashi Sham

...Petitioner

Versus

State of Haryana

...Respondent

CORAM:

HON'BLE MR. JUSTICE SUMEET GOEL Present:- Mr. Rohit Singh, Advocate with Mr. Aman Godara and Mr. S.S. Sangwan, Advocates for the petitioner. Ms. Priyanka Sadar, AAG, Haryana.

*** SUMEET GOEL , J.

(Oral) 1.

Present petition has been filed under Section 483 of BNSS, 2023 for grant of regular bail to the petitioner in case bearing FIR No.417 dated 25.07.2024, registered for the offences punishable under Sections 351(3), 75(2) & 78 of BNS, 2023 and under Section 12 of POCSO Act at Police Station Sadar Bhiwani, District Bhiwani. 2.

The case set up in the FIR in question (as set out in the present petition by the petitioner) is as follows:- "CONTENTS OF FIR: - My name is Ankita d/o Balwan Singh, R/o Vill. Dinod. I am a student of 9th Class in Govt. Girls High School and my DOB is 02.09.2007. My teacher whose name is Shashi Sham teaches us Hindi. Nearly 20 days ago, he asked me to give my mobile number to him and he will send the school work to me. I wrote my fathers mobile no. i.e. 9996199610 in his phone. Thereafter,

instead of sending me school work, he started sending indecent messages and pictures from his number i.e. 9466581302. He said that I should talk to him and started troubling me every day and started to pressurize me to talk to him and started intimidating me. He threatened to kill me and said that he will fail me in school and will also get me expelled from school. He used to tell me in school to see the messages he sent and then delete them. One day he told me that he will stab himself and will slash his veins and he will defame in the school. Then one day he stabbed himself in the hand and sent me a photo and started saying that if I tell anyone at home then he will kill me and he started torturing me a lot. Thereafter, I narrated the whole thing to my family and then I wrote down my statement.

I have written the statement in front of my aunt Pinki who is along with me and I have read it which is correct. It is correct that legal action may be taken against my teacher Shashi Sham and justice should be granted to me, so that he does not behave and do such wrong things with any other female student. SDANKITA PINKI. COMPLAINANT CHILD VICTIM RECORDED HER STATEMENT IN MY PRESENCE AT ABOUT 12:15 PM ATTESTED BY POOJA ADV DLSA BHIWANI 25.07.2024 ATTESTED MUKESH LASI PS SDR BWN DT 25.07.2024."

3.

Learned counsel for the petitioner has argued that the petitioner is in custody since 22.09.2024. Learned counsel for the petitioner has further argued that there are total 15 prosecution witnesses cited out of which only 06 have been examined till date and thus culmination of the trial will take its own time. Learned counsel for the petitioner has further argued that the petitioner has been falsely implicated into the FIR in question on account of a misunderstanding. Learned counsel for the petitioner has further submitted that all the private prosecution witnesses stand examined and the

material prosecution witnesses namely the victim, father of the victim as also aunt of the victim have turned hostile when examined as PW-3 to PW-5 & hence the trial is not likely to culminate into conviction. In this view of the matter, learned counsel has prayed for grant of regular bail. 4.

Learned State counsel has opposed the present petition arguing that the allegations raised are serious in nature and thus the petitioner does not deserve the concession of the regular bail. Learned State counsel seeks to place on record custody certificate dated 03.12.2024 in Court, which is taken on record.

5.

I have heard counsel for the parties and have gone through the available records of the case.

6.

The petitioner was arrested on 22.09.2024 whereinafter investigation was carried out and challan stands presented on 26.09.2024. Total 15 prosecution witnesses have been cited and it is not in dispute that all the private prosecution stand examined. The rival contention of learned counsel for the parties; as to whether the petitioner has been falsely implicated into the FIR in question as also the weightage required to be attached to the testimony of the hostile private witnesses namely the victim (PW3), father of the victim (PW4) and aunt of the victim (PW5); shall be gone into during the course of trial. This Court does not deem it appropriate to delve deep into these rival contentions, at this stage, lest it may prejudice the trial. Nothing tangible has been brought forward to indicate the likelihood of the petitioner absconding from the process of justice or interfering with the prosecution evidence. As per custody certificate dated 03.12.2024 filed by learned State counsel, the petitioner has suffered

incarceration for a period of about 02 months and 12 days & is not shown to be involved in any other case.

Suffice to say, further detention of the petitioner as an undertrial is not warranted in the facts and circumstances of the case. 7.

In view of above, the present petition is allowed. Petitioner is ordered to be released on regular bail on his furnishing bail/surety bonds to the satisfaction of the Ld. concerned CJM/Duty Magistrate. However, in addition to conditions that may be imposed by the concerned CJM/Duty Magistrate, the petitioner shall remain bound by the following conditions:- (i) The petitioner shall not mis-use the liberty granted. (ii) The petitioner shall not tamper with any evidence, oral or documentary, during the trial.

(iii) The petitioner shall not absent himself on any date before the trial.

(iv) The petitioner shall not commit any offence while on bail.

(v) The petitioner shall deposit his passport, if any, with the trial Court.

(vi) The petitioner shall give his cell-phone number to the Investigating Officer/SHO of concerned Police Station and shall not change his cell-phone number without prior permission of the trial Court/Illaqa Magistrate.

(vii) The petitioner shall not in any manner try to delay the trial.

8.

In case of breach of any of the aforesaid conditions and those which may be imposed by concerned CJM/Duty Magistrate as directed hereinabove or upon showing any other sufficient cause, the State/complainant shall be at liberty to move cancellation of bail of the petitioner.

9.

Ordered accordingly.

10.

Nothing said hereinabove shall be construed as an expression of opinion on the merits of the case.

11.

Since the main case has been decided, pending miscellaneous application, if any, shall also stands disposed off. (SUMEET GOEL) JUDGE 03.12.2024 P.Singh Whether speaking/reasoned Yes/No Whether Reportable Yes/No