Mukesh Kumar vs State Of H.P

Anoop Chitkara, J

The petitioner, incarcerating upon his arrest for alluring and raping a minor girl, has come up before this Court seeking regular bail.

Earlier, the petitioner had filed the following bail petitions:

(a) Bail application No.33BA/22 of 2021, filed before Special Judge, Sirmour at Nahan, was dismissed vide order dated 16.03.2021.

The bail petition is silent about criminal history, however, Mr. Ravinder Singh Jaswal, 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 5th February, 2021, victim accompanied with her mother visited police station and informed

about sexual assault. She disclosed her age to be 14 years and informed the police that the petitioner, Mukesh Kumar, is from her relations and would

frequently visit their house. On 31st January, 2021, her mother had gone to attend a Jagaran and the victim alongwith her younger brother was at

home. At around 5:30 pm, the accused visited their home. On this, the victim told him that her mother is not at home, on which, accused said that he

has been called by her mother. The victim asked the petitioner to make a phone call to her mother, but he said that he neither has her phone number

nor has time to make a phone call. At 9:00 pm, the victim told the accused to sleep in another room alongwith her brother. However, he insisted that

all three will sleep in the same room. On one side of the bed, victim alongwith her brother slept on floor and on the other side, accused slept. At

around 3:00 am, accused came near to her and threatened her to keep quiet and showed her punch. After that, he took out condom from his pocket

and then victim inquired about the same that what it is. After that accused told her that he would show her and then asked her to sleep and,

subsequently, tore her salwar and committed rape upon her. The victim told the police that till morning, accused committed rape upon her for six times.

Based on these allegations, the Police registered the FIR mentioned above.

Ld. Counsel for the petitioner contends that 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. 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:

Mr. Nand Lal Thakur, learned Additional Advocate General, submitted that the investigation is almost complete except the report of DNA, which is

a crucial evidence. He further submitted that police report stands filed on 01.04.2021. He further submitted that this Court should wait for DNA

report. In the bail petition, the contention is of false implication and the accused is denying the incident altogether.

Learned counsel for the petitioner argued that as per the last intimation received by him, accused is yet to receive the documents under Section 173

of Cr.P.C.

Be that as it may, on the basis of the material available as on date in the Court file, the petitioner fails to make out a case for bail. However, it does

not curtail the right of the petitioner to apply for fresh bail after receipt of documents in compliance to Section 173 of Cr.PC.

Given above, the concerned Magistrate is directed to supply such report to the accused or his counsel without any delay.

Ld. 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.

This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation per law.

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.

Given above, In the facts and circumstances peculiar to this case, the petition is dismissed. However, the petitioner shall be at liberty to file a new

petition on the same cause of action or different grounds.