Amit vs State Of Himachal Pradesh

Satyen Vaidya, J

Petitioner has prayed for grant of bail under Section 439 of Cr.P.C. in case FIR No. 60/2020, dated 29.07.2020, registered under Sections 363, 366-A & 376 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO’ Act), at Police Station Pachhad, District Sirmour, H.P.

It is contended on behalf of the petitioner that petitioner has already suffered incarceration since 20. 08.2020. All the material witnesses have been examined. It is further contended that petitioner has a permanent residence and there is no likelihood of his absconding from the course of justice. As per petitioner, eight prosecution witnesses are still required to be examined and in such view of the matter the trial is not likely to be concluded in near future. Petitioner has undertaken to abide by all the terms and conditions as may be imposed against him.

Per-contra, learned Additional Advocate General has opposed the prayer. It was submitted that petitioner is an accused of a very heinous crime. The victim of the offence was only about sixteen years of age, whereas petitioner himself was about twenty-eight years old at the time of commission of offence. It was further submitted that the bail petition filed by the petitioner on earlier occasion was rejected by this Court on 30.12.2022 and petitioner has not been able to show the changed circumstance.

I have heard learned counsel for the petitioner as well as learned Additional Advocate General and have also gone through the status report.

As per status report filed by the respondent-State, petitioner was arrested on 20.08.2020. It has been almost two years and eleven months after the arrest of the petitioner, but the trial has not concluded. It is not in dispute that eight prosecution witnesses, out of total twenty- four cited prosecution witnesses still remains to be examined. The next date for examination of some of the remaining prosecution witnesses is stated to be 31. 07.2023. Petitioner has also a right to lead defence evidence. In such view of the matter, it can be clearly inferred that the trial is not going to be concluded within a short period.

Undisputedly, the petitioner has a right of speedy trial. In the case in hand, evidently such right of petitioner has been infringed. Though, while rejecting the earlier bail petition of the petitioner, this Court vide order dated 30.12.2022, passed in Cr.MP(M) No. 2767 of 2022 had taken into consideration the factum of prolonged incarceration of the petitioner, however, such fact was not considered sufficient for grant of bail, on the ground that substantial period had been lost due to conditions created by COVID-19 Pandemic. After the above noted order, almost six more months have elapsed and the conclusion of trial is not in sight in near future. Thus, the above can be taken to be a changed circumstance while considering the instant bail petition.

Recently in Criminal Appeal No. 943 of 2023 titled as Mohd Muslim @ Hussain Vs. State (NCT of Delhi ), Hon’ble Supreme Court vide its judgment dated 28.03.2023. has held as under:-

“21. Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. According to the Union Home Ministry’s response to Parliament, the National Crime Records Bureau had recorded that as on 31 st December 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country20. Of these 122,852 were convicts; the rest 4,27,165 were undertrials.

The danger of unjust imprisonment, is that inmates are at risk of “prisonisation” a term described by the Kerala High Court in A Convict Prisoner v. State21 as“a radical transformation” whereby the prisoner:

“loses his identity. He is known by a number.

He loses personal possessions. He has no personal relationships. Psychological problems result from loss of freedom, status, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self- perception changes.”

There is a further danger of the prisoner turning to crime, “as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal”22 (also see Donald Clemmer’s ‘The Prison Community’ 20 National Crime Records Bureau, Prison Statistics in India https://ncrb.gov.in/sites/default/files/ PSI- 2021/Executive_ncrb_Summary-2021.pdf 21 1993 Cri LJ 3242 22 Working Papers - Group on Prisons & Borstals - 1966 U.K. published in 194023). Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials – especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily.”

Keeping in view the above facts and exposition of law, in my considered view, petitioner has made out a case for grant of bail. Additionally, there is nothing on record to suggest that the release of petitioner on bail at this stage will adversely affect the trial. The material witnesses of the case have already been examined. Petitioner has a permanent abode and there is no immediate apprehension of his absconding from the course of justice. Petitioner has no criminal antecedents. There is also nothing on record to suggest that the trial has been delayed for the reason attributable to the petitioner.

Keeping in view the facts and circumstances of the case, the bail petition is allowed and petitioner is ordered to be released on bail in case FIR No. 60/2020, dated 29.07.2020, registered under Sections 363, 366-A & 376 of the Indian Penal Code and Section 4 of the POCSO Act, at Police Station Pachhad, District Sirmour, H.P., on his furnishing personal bond in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of learned Trial Court. This order shall, however, be subject to the following conditions:-

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

ii) Petitioner shall not tamper with the prosecution evidence, in any manner, whatsoever and shall not dissuade any person from speaking the truth in relation to the facts of the case in hand.

iii) Petitioner shall beliable for immediatearrestinthe instant case in the event of petitioner violating the conditions of this bail.

(iv) Petitioner shall not leave India without permission of learned trial Court till completion of trial.

Any expression of opinion herein-above shall have no bearing on the merits of the case and shall be deemed only for the purpose of disposal of this petition.