Manish Kumar vs State Of Himachal Pradesh

Sushil Kukreja, J

By way of instant petition, filed under Section 439 of the Criminal Procedure Code, the petitioner is seeking bail in case FIR No. 10/2022, dated 15.02.2022, registered at Women Police Station Baddi, District Solan, H.P., under Sections 363, 354-B, 376, 323, 473, 506 & 34 of IPC, Sections 4 & 8 of POCSO Act and Sections 3/181 and 192 of the Motor Vehicles Act.

The prosecution story, in brief, is that on 14. 02.2022, the complainant (mother of the victim) moved a written complaint at Women Police Station, Baddi, alleging therein that her daughter used to take tuition in the neighborhood and used to return home by 6:30 p.m., however, on that day, she did not return. The complainant searched her daughter everywhere and also inquired about her from her friends and when she went to the tuition center, the tuition teacher, told her that her daughter had left the tuition center at 6:15 p.m. However, around 9:20 p.m., the victim came home, but she was scared. On asking, she disclosed that when she was returning home after tuition, one white colour car came, in which, three boys namely Aman, Manjot and Manish were sitting. Accused Aman called her near the car and when she went there, she was dragged inside the car and the accused put cloth in her mouth. Thereafter, the accused took the vehicle towards Sheetalpur side. Accused Manish was driving the vehicle. Accused Aman and Manish took off her clothes and started touching her private parts. When she resisted, they gave beatings to her. Since it was a secluded place, nobody could hear her cries. After some time, accused left the victim near a park and threatened her not to disclose the incident to anyone or else they would kill her. Consequently, FIR, as detailed hereinabove, came to be registered against the accused.

The learned Senior Counsel appearing on behalf of the petitioner has submitted that the petitioner is innocent and has been falsely implicated in the present case. He has further submitted that taking into consideration the age of the petitioner, i.e. 24 years, if he is not enlarged on bail, his career will be ruined. He also submitted that the trial is not going to be completed in near future, as the prosecution has examined only two witnesses out of twenty four witnesses, as such, no fruitful purpose will be served by keeping him behind the bars for an unlimited period.

Conversely, the learned Additional Advocate General has submitted that the petitioner does not deserve to be released on bail as he has been found involved in a serious offence, so at this stage, in case he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice.

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. A perusal of the record reveals that the allegation against the petitioner is that he had forcibly undressed the victim and had touched her private parts inappropriately. The petitioner was arrested on 16. 02.2022 and since then he is behind the bars and till date, out of twenty four witnesses to be examined by the prosecution, it has examined only two witnesses and there is no likelihood of completion of trial in near future.

In Union of India Versus K.A. Najeeb, (2021) 3 Supreme Court Cases 713, the Hon’ble Supreme Court observed that once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge them on bail. The relevant para of the judgment is reproduced as under:-

“15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge them on bail.”

It is not in dispute that Article 21 of the Constitution of India guarantees for speedy trial and an undertrial prisoner cannot be detained in jail/custody for an indefinite period. From the foregoing enunciation of the law laid down by the Supreme Court, it becomes clear that long incarceration of an undertrial without any likelihood of conclusion of trial in near future infringes upon the right of speedy trial of such undertrial.

I n Satender Kumar Antil Versus Central Bureau of Investigation & another, (2022) 10 Supreme Court Cases 51, after taking note of the decision given in Siddharth vs. State of U.P. & Anr. [(2022) 1 SCC 676], it has been held by the Hon’ble Supreme Court that personal liberty is an important aspect of our constitutional mandate. The relevant portion of the judgement reads as under:-

“44. This Court in Sidharth v. State of U.P., has held that:-

……….10. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the investigating officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused…….”

In the case in hand, the trial has not progressed much and till date out of twenty four witnesses, only two witnesses have been examined. The petitioner has remained in custody since 16.02.2022 and has suffered incarceration for more than one year. His detention has virtually became pre-trial punishment to him. There is also nothing on record to suggest that the delay in trial is attributable to the petitioner. Having regard to the fact that the petitioner is in custody for the last more than one year, the petitioner deserves to be released on bail, as the trial is not likely to conclude in near future and the petitioner can not be kept behind the bars for an unlimited period. The prosecution has failed to produce any material on record to suggest that the petitioner 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, as admittedly, he is a permanent resident of District Solan.

Hence, after going through the material available on record and 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. 10/2022, dated 15.02.2022, registered at Women Police Station Baddi, District Solan, H.P., under Sections 363, 354-B, 376, 323, 473, 506 & 34 of IPC, Sections 4 & 8 of POCSO Act and Sections 3/181 and 192 of the Motor Vehicles Act, shall be forthwith released on bail, in this case, subject to his furnishing personal bond to the tune of Rs. 50,000/-(Rupees fifty thousand), with one surety in the like amount to the satisfaction of learned Trial Court. This bail order is subject, however, 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/her 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.