Mahinder vs State Of Himachal Pradesh

Sushil Kukreja, J

The instant petition has been filed by the petitioner under Section 439 of the Code of Criminal Procedure (Cr.P.C.), seeking bail in case FIR No.13/2023, dated 09.04.2023, registered at Women Police Station Baddi, Police District Baddi, H.P. under Sections 363, 366, 376(3) of the Indian Penal Code (for short, ‘IPC’) and Sections 6, 17 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’).

Briefly stated the facts of the case, as per the status report filed by the respondent-State, are that on 09.04.2023, the complainant, i.e. the father of the victim, lodged a complaint before the police, alleging therein that on 7. 04.2023, he alongwith his wife and son had gone for work at about 7:00 a.m. His elder daughter informed him that his younger daughter (victim), who was aged about 15 years, had left the house at about 1:45 p.m., and thereafter when they came back to home, they tried to search her, but she was not found anywhere. He had suspicion that some unknown person had enticed the victim. On the basis of the said complaint, FIR under Section 363 of IPC was registered.

During the course of investigation, the police got a secret information that the victim was taken away by accused Kapil Yadav on the pretext of marriage, who had kept her at Ropar (Punjab). On the basis of said information, the police visited Ropar, where the victim was found alongwith accused Kapil Yadav at Jhandiyan, Nurpur Bedi, District Ropar, Punjab. On being inquired, the victim disclosed that accused Kapil Yadav had taken her and he had committed sexual intercourse with her many times. After that, on the basis of the statement of the victim recorded under Section 161, Cr. P.C., Sections 366, 376(3) of IPC and Section 6 of POCSO Act were added in the FIR in question. Thereafter, the police got the victim medically examined, her X-ray was also conducted for age determination and report was obtained. Accused Kapil Yadav was arrested on 14.04.2023, his medical examination was also got conducted and samples were preserved. The police also got recorded the statement of the victim under Section 164 Cr.P.C. During investigation, the victim disclosed that on 07.04.2023, at about 1:45 p.m., accused Kapil Yadav had taken her to New Bus Stand, Nalagarh on the pretext of marriage, from where he and his father Mahinder (petitioner herein) had taken her to Haryana Organic Pharma, Jhandiya, Nurpur Bedi, Punjab. As such, Section 17 of POCSO Act was also added in the FIR and thereafter petitioner Mahinder was arrested on 16.04.2023. The police obtained the date of birth record of accused Kapil Yadav and he was found to be a juvenile. After completion of investigation, charge-sheet under Section 363 of IPC and Section 17 of POCSO Act was presented against the petitioner-accused before the trial Court on 07.06.2023.

The instant petition has been filed by the petitioner on the ground that he is innocent and he has been falsely implicated in the present case. Learned counsel for the petitioner contended that the petitioner is behind the bars since 16.04.2023 and no fruitful purpose will be served by keeping him behind the bars for an unlimited period, as the charge-sheet has been filed before the trial Court on 07.06.2023 and the trial may take sufficiently long time to conclude. He further contended that since main accused Kapil Yadav has already been released on bail by the learned Juvenile Justice Board, Solan, District Solan, H.P., therefore, the petitioner is also entitled to be released on bail on the ground of parity.

Conversely, the learned Additional Advocate General has opposed the bail application on the ground that the petitioner is involved in a serious offence and keeping in view the gravity of the offence, he is not entitled to be released on bail. He further contended that if the petitioner is enlarged on bail, he will try to influence the witnesses and may also tamper with the prosecution evidence.

I have given my considered thought to the rival contentions raised and also gone through the police file as well as the status report filed by the prosecution. The allegation against the petitioner is that on 07.04.2023, his son, i.e. accused Kapil Yadav had taken the victim to New Bus Stand, Nalagarh, from where he (petitioner) and accused Kapil Yadav had enticed her away to Haryana Organic Pharma, Jhandiya, Nurpur Beddi, Punjab.

The law with respect to grant of bail is now well settled. In Sanjay Chandra Vs. Central Bureau of Investigation, (2012) 1 Supreme Court Cases 49, it has been held that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail and that every man is deemed to be innocent until duly tried and duly found guilty. Relevant portion of the aforesaid judgment reads as under:-

“21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.

Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.”

In Manoranjana Sinh alias Gupta Vs. CBI, (2017) 5 SCC 218, the Hon’ble Apex Court reiterated the decision rendered in Sanjay Chandra’s case (supra) by holding as under:-

“16. This Court in Sanjay Chandra Vs. Central Bureau of Investigation (2012) 1 SCC 40, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive nor preventive. This Court sounded a caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and that grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted.”

Similar reiteration of law can be found in Dataram Singh Vs. State of Uttar Pradesh & Another, (2018) 3 SCC 22, wherein it has been held that a person is believed to be innocent until found guilty and the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home is an exception. Relevant portion of the aforesaid judgment reads as under:-

“1. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.

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To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in Re-Inhuman Conditions in 1382 Prisons.”

In the instant case, the only allegation against the petitioner is that on 07.04.2023, his son, i.e. accused Kapil Yadav had taken the victim to New Bus Stand, Nalagarh, from where, he (petitioner) and accused Kapil Yadav had enticed her away to Haryana Organic Pharma, Jhandiya, Nurpur Bedi, Punjab. As per the record, the victim was minor at the time of the alleged incident, as such, the petitioner had been booked under Section 17 of the POCSO Act alongwith the other provisions of the Indian Penal Code, but mere charging of an individual under the POCSO Act, which contains stringent provisions, may not be a ground to deny the bail, rather, as per Section 31 of POCSO Act, the provisions of the Code of Criminal Procedure (including the provisions as to bail and bonds) have been made applicable to the proceedings under the said Act. Therefore,keeping in view the allegations leveled against the petitioner, his complicity is yet to be established on record, as such, he cannot be detained in custody for an unlimited period. The petitioner is in custody since 16.04.2023 and there is no likelihood of completion of the trial in near future as the charge-sheet has been filed only on 07.06.2023. The prosecution has also failed to produce any material on record to suggest that he will tamper with the prosecution evidence on being enlarged on bail and there is also nothing to suggest that the petitioner will abscond and flee from justice, if released on bail. Furthermore, main accused Kapil Yadav has already been released on bail by the Juvenile Justice Board, Solan, District Solan,H.P, as such, the petitioner also deserves to be released on bail on the ground of parity.

Considering the overall facts and circumstances of the case, this Court finds that the present is a fit case where judicial discretion to admit the petitioner on bail is required to be exercised in his favour. Accordingly, the bail application is allowed and it is ordered that the petitioner, who has been arrested by the police in case FIR No.13/2023, dated 09.04.2023, registered at Women Police Station Baddi, Police District Baddi, H.P., under Sections 363, 366, 376(3) of IPC and Sections 6 & 17 of POCSO Act and presently lodged in District Jail Solan, H.P., shall be forthwith released on bail, subject to his furnishing personal bond to the tune of Rs.25,000/- (Rupees twenty five thousand) with one surety in the like amount to the satisfaction of learned trial Court. The bail order is, however, subject to the following conditions:-

(i) that the petitioner will appear before the Court and the Investigating Officer whenever required ;

(ii) that he will not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing any facts to the Court or the police;

(iii) that he will not tamper with the prosecution evidence nor he will try to win over the prosecution witnesses or terrorise them in any manner;

(iv) that he will not deliberately and intentionally act in a manner which may tend to delay the investigation or the trial of the case.

(v) that he will not leave India without prior permission of the Court.

Needless to say that the Investigating agency shall be at liberty to move this Court for cancellation of the bail, if any of the aforesaid conditions is violated by the petitioner.

Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the trial Court will not be influenced by any observations made therein.

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

In case, the petitioner is not released within a period of seven days from the date of grant of bail, the Superintendent, District Jail, Solan, H.P., is directed to inform this fact to the Secretary, DLSA, Solan. The Superintendent, District Jail, Solan is further directed that if the petitioner 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.