Harinder vs State Of Himachal Pradesh

Anoop Chitkara, J

The petitioner, incarcerating upon his arrest, for alleging alluring and committing sexual intercourse with a minor girl aged 15 years, has come up

before this Court under Section 439 Cr.PC, seeking regular bail.

A perusal of the petition reveals that the petitioner straightaway filed the bail petition before High Court, which is permissible given the decision of a

three Judges Bench of HP High Court, in Mohan Lal v Prem Chand, AIR 1980 HP 36, (Para 9 & 15), wherein the Full bench holds that a person can

directly apply for an anticipatory bail or regular bail to the High Court without first invoking the jurisdiction of the Sessions Judge.

The bail petition is silent about criminal history, however, Shri Naresh Kumar Tomar, Ld. Counsel for the bail petitioner states on instructions that

the petitioner has no criminal past relating to the offences prescribing sentence of seven years and more, or when on conviction, the sentence imposed

was more than three years. The status report also does not mention any criminal past of the accused.

Briefly, the allegations against the petitioner are that on 22.08.2018, victim aged 14 years, accompanied by her father visited the Police Station and

informed about sexual assault. The Investigator recorded her statement under Section 154 Cr.P.C. She alleged that she is a student of class 8th and at

that time was living alone in her house. On 16.08.2018, she came to attend a fair at Sangdah without telling anyone in the nearby. When she reached

at place Sangdah-Rajhana, there one Vikram Thakur, who lives in Mahipur, met her. He took her to Sangdah and from there in the evening at 5.00

p.m. brought her at Dadahu. They reached Dadahu at 6.00 p.m. where he took a room in a hotel on rent and there committed wrong act with her. At

8.00 p.m., a friend of Vikram named Dibu came there and both of them took her to the house of ‘Mama’ of Dibu at a place known as Deep

Panar. On reaching there, they told ‘Mama’ of Dibu that she is sister of Vikram. All three stayed in the same room and during night Vikram

and Dibu committed sexual assault with her. On 17.08.2018, Vikram dropped her at Dadahu from where she returned to Nahan. On reaching Nahan,

Pradeep alias Tapender met her and took her to ‘Nimantran Hotel’ where he also committed sexual intercourse with her. On next day

18.08.2018, in the morning, she went to Dadahu. In the bus-stand, one Shashi met her. Shashi is a resident of village Panahar. Shashi also committed

sexual intercourse with her at Jalalpul. Later on, she went to bus-stand and stayed there. In the evening, one person named Ashok met her and he

took her to his room at Khadri. During night, she stayed with him. On next day 20.08.2018, she came to bus-stand at Nahan where Pradeep alias

Tapender again met her and again took her to ‘Nimantran Hotel’ where he committed sexual intercourse with her. She stayed in the hotel

during night. On 21.08.2018, she went to Renukaji and stayed in the bus-stand. Vikram came there and brought her to Nahan from where Vikram

took her to Kala Amb and during night he again committed sexual intercourse with her in the vehicle. They slept in the vehicle. In the morning, Vikram

brought her to Nahan and after dropping her there, he himself went to his home. After that, she went to her Mama’s house at Sainwala and on the

way near Sainwala, her father and brother noticed her from the bus and brought her to the police station. She stated that Vikram, Dibu, Shashi and

Pradeep committed sexual intercourse with her. The police took the victim for her medical examination. During investigation, the police collected her

date of birth from ‘Parivar’ register, according to which, she turned out to be a minor. The investigation further revealed that while committing

sexual intercourse, Naresh had recorded the sexual act committed by Shashi with the victim. The investigation further revealed that during

investigation, victim had disclosed that on 21.08.2018 Vikram and Harinder, petitioner herein, had also committed sexual intercourse with her in a

Tipper Truck. On these allegations, the Police recorded the FIR mentioned above.

Ld. Counsel for the petitioner contends that the incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

On the contrary, the State contends that the Police have collected sufficient evidence against the bail petitioner and the co-accused. Another

argument on behalf of the State is that the crime is heinous, the accused is a risk to law-abiding people, and bail might send a wrong message to

society.

REASONING:

Ld. Counsel for the petitioner referred to certain statements and memos from the police report, prepared under section 173(2) CrPC, copies of

which the accused had duly received in compliance to S. 207 CrPC. However, the documents which the Ld. Counsel referred were neither filed with

the petition, nor its copies supplied to the Court and the State. Thus, the Court cannot base any finding on a document whcih is in the Counsel's brief

and not on the Court's file.

Undoubtedly, in the statement under Section 154 Cr.P.C., the victim did not name the petitioner as an accused. However, law is no more res integra

that an FIR is not an encyclopedia. The number of persons, who had committed sexual intercourse with the victim were so large that even if she

forgot one incident, the burden was on the petitioner to clarify as to why she implicated him for the said offence. The petition is silent about any

enmity.

Counsel for the petitioner has also made several other arguments. Still, given that this Court is not inclined to grant bail, on the reasons mentioned

above, discussion of the same will be an exercise in futility. Any detailed analysis of the evidence may prejudice the case of the prosecution or the

accused.

Given above, in the facts and circumstances peculiar to this case, at this stage, the petitioner fails to make out a case for bail. The petition is

dismissed with liberty to file a new bail application.

Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.

The petition is dismissed.