Karnail Singh vs State Of Himachal Pradesh

Virender Singh, J

Applicant-Karnail Singh has filed the present application, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as ‘CrPC’), for seeking, his release on bail, during the pendency of trial, in case FIR No. 65 of 2022, dated 10th August, 2022, registered under Sections 363 and 376 of the Indian Penal Code (hereinafter referred to as ‘IPC’) and Section 6 of the Prevention of Children from Sexual Offences Act (hereinafter referred to as ‘POCSO Act’), with Police Station Rajgarh, District Sirmaur, H.P.

The relief, as claimed, in the bail application, has been sought on the ground that the applicant is an innocent person and has falsely been implicated, in this case.

As per the applicant, the investigation, in the present case, is complete and the case has been now fixed for recording the statements of the prosecution witnesses. The statement of the child victim is stated to have already been recorded.

On the basis of the above facts, Mr. K.S. Gill, learned counsel, appearing for the applicant, has submitted that the chances of the conclusion of the trial, against the applicant, in near future, are not so bright, as such, no useful purpose would be served by keeping him in judicial custody, for indefinite period.

Alongwith the bail application, the copy of the Aadhar Card, as well as, the statement of the child victim, recorded before the Court, in which, the matter is pending, has also been annexed.

On all these submissions, a prayer has been made to allow the bail application.

When put to notice, the police has filed the status report, disclosing therein, that on 10th August, 2022, the complainant, who is the father of the child victim, moved a complaint, before the police, mentioning therein, that on 9th August, 2022, during night time, the child victim had eloped with someone. As per the contents of the complaint, the efforts to trace her were made, but, she was not found.

1. According to the further version of the complainant, at about 10.00 p.m., the child victim had called her elder sister and disclosed that she was in Uttarakhand.

2. In view of the above facts, a prayer has been made to take action, whereupon, the police registered a case, under Section 363 IPC, and the police machinery swung into motion.

7.3. During investigation, the mobile phone of the child victim was put on surveillance, for tower location and the same was found to be at Malikot, District Reyasi, Jammu and Kashmir. On 12th August, 2022, the documents, regarding the date of birth of the child victim, were obtained. As per the birth certificate obtained from the Principal of the Government Senior Secondary School, the date of birth of the child victim is 15th July, 2006.

7.4. On 18th November, 2022, a team had gone to Malikot, Reyasi in Jammu and Kashmir, in order to search for the child victim. On 20th November, 2022, on the basis of the tower location, the child victim was found and was, thereafter, handed over to her uncle.

7.5. On 21st November, 2022, the child victim was sent for her medico-legal examination. On 22nd November, 2022, the statement of the child victim, under Section 164 CrPC, was got recorded, by producing her before the Court of learned JMFC, Rajgarh. In the statement, the child victim has stated that nothing wrong has been done with her.

7.6. On 29th November, 2022, an information was received on Toll Free Number of Child Helpline, Sirmaur, that the child victim is pregnant and that she and her family members intend to abort the foetus. Upon this, on 5th December, 2022, ASI alongwith other police officials, reached at Dr. YS Parmar Medical College, Nahan, where, the child victim was inquired, in presence of her paternal uncle, upon which, the child victim has given her consent for abortion of the foetus. Thereafter, the Gynecologist was consulted, who has expressed her objections, upon which, the child victim was referred to KNH, Shimla. After aborting the foetus, the child victim was found to be ill and on 4th January, 2023, the child victim was again produced before the Court of learned Judicial Magistrate First Class for recording her statement, under Section 164 CrPC, in which, she has named the applicant as the source of the foetus, upon which, provisions of Sections 376 IPC and Section 6 of the POCSO Act were added in the FIR.

7.7. As per the status report, the child victim has also got recorded, in her statement, under Section 164 CrPC, that her parents forced her to study and she was not interested to study, as such, in search of a job, she had gone to Pathankot, Jammu side.

7.8. The accused (applicant) was arrested on 12th February, 2023. Even, in the DNA report, the applicant was found to be the source of the foetus and the child victim was found to be the mother of the foetus.

7.9. It is the further case of the police that after the completion of the investigation, the report, under Section 173 (2) CrPC has been filed, upon which, the learned Special Judge has taken the cognizance and charges have been framed against the accused (applicant).

7.10. The statement of the child victim was recorded on 28th June, 2023, in which, according to the status report, she has supported the case of the prosecution. The case is now stated to have been fixed on 8th September, 2023.

It has been submitted by the learned counsel appearing for the applicant that out of 31 witnesses, only one has been examined. The statement of the child victim has been annexed with the bail application.

The evidence, so recorded, shall be scrutinized by the learned trial Court. This prerogative of the learned trial Court cannot be snatched away by this Court, while deciding the question of bail. At the time of deciding the bail application, the detailed discussion about the evidence, so collected, by the investigating agency, should be avoided, as, it may cause prejudice to the case of the prosecution, as well as, to the case of the accused (applicant).

The applicant has also annexed the photo copy of the Aadhar Card of the child victim, in order to highlight, that in the Aadhar Card of the child victim, the address of the applicant has been mentioned. This fact will also be considered by the learned trial Court, during the trial.

The child victim has been examined. Keeping in view the number of prosecution witnesses, the chances of the conclusion of the trial, against the applicant, in near future, are not so bright. Considering the age of the applicant, which has been mentioned, in the status report, as 22 years, this Court is of the view that keeping the applicant, in the judicial custody, that too, in the company of hardened criminals, will adversely affect his future.

So far as the much relied document, i.e. DNA Report, is concerned, the said fact will also be considered by the learned trial Court. The child victim has given different versions, in different statements, recorded under Section 164 CrPC.

No other criminal history of the applicant has been mentioned in the status report. As such, the applicant is presumed to be innocent, till the conclusion of the trial. Bail application cannot be rejected only as a matter of punishment, as, pre-trial punishment is prohibited under the law.

In the status report, no apprehension has been expressed by the State, in case, the application is allowed.

Considering all these facts, this Court is of the view that the applicant deserves to be released on bail, during the trial.

Consequently, the bail application is allowed. The applicant is ordered to be released on bail in case FIR No. 65 of 2022, dated 10th August, 2022, registered under Sections 363 and 376 IPC and Section 6 of the POCSO Act, with Police Station Rajgarh, District Sirmaur, H.P., on his furnishing personal bail bond, in the sum of ₹ 50,000/-, with two sureties each of the like amount, one of which should be local, to the satisfaction of learned trial Court. This order, however, shall be subject to the following conditions:

a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; and

d) He shall not leave the territory of India without the prior permission of the Court.

Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail application.

It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found to be violated by the applicant.

The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail concerned through e-mail, with a direction to enter the date of grant of bail in the e-prison software.

In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Jail concerned, is directed to inform this fact to the Secretary, DLSA, Sirmaur at Nahan. The Superintendent of Jail concerned is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court.