Afgan Miya vs State Of Himachal Pradesh

Satyen Vaidya, J

Petitioner is accused in case FIR No.31 of 2023, dated 10.04.2023, under Sections 354(A), 354(D), 506 IPC and Section 8 of the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”) registered at Police Station, Arki, District Solan, H.P. He is in custody since 10.04.2023.

The matter was reported to the police by the mother of child victim on 9.4.2023. It was reported that the petitioner was indulging in indecent activities towards the minor daughter of complainant for the last 2-3 months. It was also alleged that a week prior to the date of reporting of the matter to the police, the petitioner had caught the child victim from hand and had slapped her near water source. The child victim did not disclose anything to the complainant till 9.4.2023, on which date, the child victim had again visited the water source to fetch water at about 4.30 p.m. She was being followed by the complainant. The petitioner fled from the scene when he noticed the complainant, but he was over-powered by the complainant, her husband, brother-in-law and his wife. On the above complaint, the case was registered and the petitioner was arrested. During investigation, the statement of child victim was recorded under Section 164 Cr.P.C. The child victim is stated to be 17 years 2 months old. The investigation is complete and the report under Section 173 (2) Cr.P.C. is in the process of being submitted.

The petitioner has prayed for grant of bail on the ground that he is innocent and has committed no offence. He has been residing in the area for last many years and there has been no previous complaint against him. The petitioner has been implicated in a false case for ulterior motives. The family of the complainant is having inimical relations towards the petitioner.

On the other hand, the prayer for grant of bail is opposed by learned Additional Advocate General. It is submitted that the accusations against petitioner are serious and grave and, as such, he doesn’t deserve any leniency.

I have heard learned counsel for the parties and have also gone through the records of the case carefully.

Undoubtedly, the allegations against petitioner are serious, but seriousness of allegations cannot be the sole criteria to deny the right of liberty. The allegations are to be supported by the credible evidence. At the stage of deciding the bail petition, though this Court is not to minutely scan the evidence collected during investigation, nonetheless it can always be looked into to assess the seriousness and gravity of allegations.

The allegation against the petitioner is that he caught hold of the hand of child victim and slapped her.

The child victim is above 17 years of age. She did not disclose such fact to any of her family members till lapse of about one week. The other allegations levelled by the complainant against the petitioner are vague without specifying as to what sort of indecent behaviour was shown by him towards the child victim.

The petitioner has already suffered custody since 10.4.2023. The investigation is complete. The allegations against petitioner are subject to proof. No fruitful purpose shall be served by allowing the petitioner to be kept in detention for indeterminate period. The trial, if any, against petitioner is yet to begin and same is not likely to be concluded until lapse of considerable time. Pre-trial incarceration cannot be ordered as a matter of rule.

Learned Additional Advocate General has contended that petitioner belongs to Utter Pradesh and in case he is released on bail, he may not be available for trial. Such apprehension though unsubstantiated, can always be taken care of by imposing appropriate conditions against the petitioner. It is not the case that where the petitioner, if released on bail, will be in a position to tamper with the prosecution evidence. All material witnesses are closely related to child victim. There is no likelihood of their being won-over by the petitioner.

Keeping in view the facts and circumstances of the case, the petition is allowed and the petitioner is ordered to be released on bail in case FIR No.31 of 2023, dated 10.04.2023, under Sections 354(A), 354(D), 506 IPC and Section 8 of the POCSO Act registered at Police Station, Arki, District Solan, on his furnishing personal bond in the sum of Rs.25,000/- with one surety in the like amount to the satisfaction of Judicial Magistrate 1st Class, Arki, District Solan, H.P. This order shall, however, be subject to the following conditions:

i) That the petitioner shall not indulge in any criminal activity and in the event of breach of this condition, the bail granted to the petitioner in this case, shall automatically be cancelled.

ii) That the petitioner shall not leave the territory of India without express leave of Trial Court during the Trial.

iii). That the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case and shall not tamper with the prosecution evidence.

iv) That the petitioner shall regularly attend the trial of the case before learned Trial Court and shall not cause any delay in its conclusion.

Any observation made in this order 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 hereinabove.