Manish Kumar vs State Of H.P

Virender Singh, J

Applicant Manish Kumar has filed the present application, under Section 439 of the Code of Criminal Procedure, (hereinafter referred to as ‘the Cr. P.C.) for releasing him, on bail, during the pendency of the trial, in case FIR No.274 of 2022, dated 19.10.2022, under Sections 363, 366-A, 376 read with Section 34 of Indian Penal Code (hereinafter referred to as ‘the IPC’), and Sections 4 and 18 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘the POCSO’) registered with Police Station, Nalagarh, District Solan, H.P.

The applicant has pleaded that he is innocent person and has falsely been implicated in the present case, as there is no direct or indirect evidence, connecting him with the alleged offence.

As per the stand taken by the applicant, he is permanent resident of District Solan and having deep roots in the society.

Investigation is also stated to be complete in the case and Police has filed report under Section 173(2) Cr. P.C., against him. However, according to the applicant, the chances of the conclusion of the trial, in near future are not so bright.

As per the averments of the bail application, the applicant has also tried his luck by moving bail application, bearing No. 25-S/22 of 2023, before the learned Special Court (POCSO), Solan, District Solan, (Camp at Nalagarh), however, the same was dismissed on 8.6.2023.

Apart from this, the applicant, through his counsel Mr. N.S. Chandel, Senior Advocate, assisted by Mr. Rajesh Verma and Mr. Vinod Gupta, Advocates, has given certain undertakings, for which, the applicant is ready to abide by, in case, he is released on bail.

On 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 19.10.2022, complainant, who is father of the child victim, submitted a complaint to the Police, disclosing therein that on 18.10.2022, the child victim, who is studying in 10+2 have gone to attend the school, but did not return back. Efforts to trace her were made. However, in late night, on the same date, the child victim returned back and disclosed that when, she was on her way to school, one Manish Kumar, S/o Shri Gurbachan @ Baggu Ram (applicant) enticed her and took her on the motorcycle. At that time, one Kaku was also with him. Said Kaku and Manish had dropped the child victim at Jhidiwala. The child victim was taken towards Chandigarh side. At that time, her age was about 16 years.

On the basis of above facts, the Police registered a case under Section 364 read with Section 34 IPC. Criminal machinery swung into motion.

During investigation, statements of witnesses were recorded under Section 161 Cr. P.C. The document, pertaining to the date of birth of the child victim was obtained. According to this document, her date of birth was 3.8.2006. On 19. 10.2022, the child victim has made a statement under Section 161 Cr. P.C. in the presence of her mother. She has got recorded in her statement that on the date of incident, applicant Manish took her to Chandigarh, where he, took her to a hotel and ravished her. Thereafter, the child victim was sent for medico-legal examination, where, the Doctor has opined that possibility of sexual intercourse cannot be ruled out. However, she has deferred her final opinion, after receiving report from FSL.

Consequently, Sections 366-A and 376 of IPC and Section 4 of POCSO Act were added.

On 19.10.2022, applicant Manish and one Deepak were arrested. Both were taken for medico legal examination. Physical evidence, so collected, during the investigation was sent to State Forensic Science Lab, Junga and report has been received.

It is the further case of the Police that a case FIR No. 169 of 2020, dated 27.5.2020, under Sections 354, 323 and 506 IPC has also been registered against accused Manish.

Lastly, it has been apprehended that due to the act of the applicant, the child victim is in trauma and in case, the applicant is released on bail, he may coerce the witnesses. Due to the offence, committed by the applicant, there is huge resentment in the area.

It has been submitted that the case is now adjourned for recording the statements of prosecution witnesses, for 2.8.2023.

On the basis of above facts, a prayer has been made to dismiss the application.

During the course of arguments, learned counsel for the applicant has placed on record the statement of child victim, recorded on 17.5.2023.

Heard.

At the time of deciding the bail application, detailed discussion of evidence, so collected, as well as recorded by the learned trial Court, should be avoided, as it is the sole prerogative of the trial Court to discuss the evidence, so recorded, before it. Although, the trial is at the advanced stage, but chances of its conclusion, are not so bright, in future, therefore, no useful purpose would be served by keeping the applicant in judicial custody.

Perusal of the record shows that 19 witnesses have been cited in this case. Even otherwise, the bail application cannot be rejected as a matter of punishment, as pre - trial punishment is prohibited under the law.

The role allegedly played by the applicant, in the commission of offence, will be proved during the trial and without recording the evidence of the prosecution, presumption of Sections 29 and 30 of the POCSO Act, cannot be derived, against the applicant.

So far as the apprehensions, as expressed by the Police in the status report, are concerned, reasonable conditions can be imposed, upon the applicant if released on bail.

Registration of the criminal case also does not take away presumption of innocence from the accused, as admittedly, in the said case, no conviction has been recorded by the Competent Court of law.

Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed.

The applicant is ordered to be released on bail in case FIR No, 274 of 2022, dated 19.10.2022, under Sections 363, 366-A, 376 read with Section 34 IPC and Sections 4 and 18 of POCSO Act, registered with Police Station, Nalagarh, District Solan, on his furnishing personal bond in the sum of Rs. 50,000/-, with one surety in the like amount, to the satisfaction of learned special Judge, Solan. 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 the 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 herein above, 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 violated by the applicant.

The Registry is directed to forward a soft copy of the bail order to the Superintendent of concerned jail, 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 concerned jail is directed to inform this fact to the Secretary, DLSA, Solan. The Superintendent of the concerned jail 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.