Rajnish Singh @ Jeet vs State Of Himachal Pradesh And Another

Bipin Chander Negi, J

The present bail petition has been filed under Section 483 of the Bharatiya Nagrik Suraksha Sanhita, 2023 (BNSS) for grant of regular bail, arising out of FIR No.07/2024 dated 24.01.2024, registered at Police Station, Bangana, District Una, Himachal Pradesh, for an offence punishable under Sections 366A, 376 of the Indian Penal Code, 1860 and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

Heard counsel for the parties and perused the status report.

The brief facts giving rise to the present case are that on 24.01.2024, the father of the victim, in the case at hand, had lodged a report stating that his minor daughter (Date of Birth 18.06.2006), aged about 17 years 05 months (victim) had gone missing. The victim’s father (complainant) suspected the present bail petitioner of having abducted his daughter. During investigation, the victim was traced and recovered on 09.02.2024 from a rented room in Village Kudi, District Bilaspur. She was found living with the bail petitioner on the aforesaid location. Her statement under Section 161 of the Code of Criminal Procedure was recorded on 09.02.2024. On 12.02.2024, statement of the victim under Section 164 of the Code of Criminal Procedure had been recorded. In the said statement, the victim had deposed regarding the occurrence of the incident. Based upon such statement of the victim, Section 376 of the Indian Penal Code read with Section 4 of the POCSO Act were added.

Initially, on 09.02.2024, the victim refused to undergo medical examination. However, on 10.02.2024, the victim underwent medical examination at C.H.C., Bangana.

The accused was arrested on 09.02.2024 at 11:55 p.m. He has been in police custody since 09.02.2024 till 12.02.2024. Since then, he has been in judicial custody for more than two years.

During investigation, forensic (FSL/DNA) reports were also collected. Challan was initially filed on 21.03.2024. Supplementary Challan was also filed subsequently on 08.07.2024. Trial commenced on 04.04.2025. There are, in all, 27 witnesses, out of which, 20 have been examined and 07 witnesses remains to be examined.

The Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 has observed that personal liberty of an individual is a precious fundamental right and should not be curtailed unless it is imperative in the given facts and circumstances.

In Prabhakar Tewari v. State of Uttar Pradesh and Another, (2020) 11 SCC 648, the Supreme Court held that seriousness of allegations cannot be the sole factor to deny bail to an accused. The same view was taken by the Delhi High Court in Navendu Babbar v. State of NCT of Delhi, 2020 SCC OnLine Del 2345, where it was observed that the offence is no doubt grave and serious but that cannot by itself be a factor to decline bail.

No doubt, the allegations against the petitioner is serious but there is merit in the contention that the petitioner has been incarcerated since 09.02.2024. In Prabhakar Tewari (supra), the Supreme Court has held that gravity of the offence cannot be the sole basis for denial of bail. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India and Others, (1994) 6 SCC 731, the Supreme Court held that undertrials cannot be detained in jail indefinitely pending trial. In State of Rajasthan, Jaipur v. Balchand alias Baliay, (1977) 4 SCC 308, the Supreme Court held as under :-

“2. The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative.”

In Puneet Rana v. State NCT of Delhi, SLP (Crl.) No. 1882/2022, decided on 19.05.2022, the Supreme Court granted bail to the Petitioner charged for offences punishable under Sections 302/356/379/ 323/506/34 IPC looking to the fact that material witnesses had been examined and 23 more witnesses were remaining to be examined and there was no likelihood of trial being completed soon. In Praveen Rathore v. State of Rajasthan and Another, 2023 SCC OnLine SC 1268, the Supreme Court granted bail to the accused charged under Sections 302/120B IPC considering the long custody of four and half years and the possibility that the trial was not likely to conclude soon and relevant passage is as follows:-

“5. It is not in dispute that the petitioner, by now, has undergone more than four and a half years' of sentence. The prosecution intends to examine 76 witnesses, out of whom 53 have already deposed. All the crucial witnesses have already been examined. The instant case was adjourned on few occasions to enable the prosecution to examine Chauthmal Kashyap and Manohar Rathore, who were stated to be the vital witnesses. Their deposition is also complete.”

It is argued that speedy trial is guaranteed to an accused under the Constitution of India and it would be unfair if Applicant continues under incarceration awaiting the conclusion of trial which is going to take years from now looking at the number of witnesses remaining to be examine on behalf of the prosecution. In Mukesh Kumar v. State of Rajasthan and Anr., Special Leave to Appeal (Crl.) No. 11714/2022, decided on 15.02.2023, the Supreme Court granted bail to the Petitioner on the ground that he had been in custody for more than 24 months and since crucial witnesses had been examined, there was no likelihood of tampering with evidence.

In the case at hand, there are total 27 prosecution witnesses. Out of which, 20 witnesses were examined and 07 witnesses have to be examined on 23.04.2026. Conclusion of trial would take some time. Material witnesses stand examined.

In Sanjay Chandra v. Central Bureau of Investigation, (2012) 1 SCC 40, the Supreme Court observed that object of bail is to secure appearance of the accused person at his trial and to receive punishment if convicted and is neither punitive nor preventive.

In Sanjay Chandra (supra), the Supreme Court observed 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 is 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 unconvicted 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 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 unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.”

Hence, after 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 FIR No.07/2024 dated 24.01.2024, registered at Police Station, Bangana, District Una, Himachal Pradesh, for an offence punishable under Sections 366A, 376 of the Indian Penal Code, 1860 and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), shall be forthwith released on bail, subject to his furnishing personal bond to the tune of Rs.1,00,000/- [Rupees One lac] with one local surety in the like amount, to the satisfaction of learned trial Court. However, this bail order is subject to the following conditions:-

(i) Petitioner shall 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;

(ii) Petitioner shall not tamper with the evidence or hamper the investigation in any manner whatsoever;

(iii) Petitioner will not leave India without prior permission of the Court;

(iv) Petitioner shall not make any inducement, threat or promise, directly or indirectly, to the victim and Investigating Officer or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer;

(v) Petitioner shall inform the Station House Officer of the concerned police station about his place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of his Aadhar Card, Telephone Number, Email, PAN Card, Bank Account Number, if any; &

(vi) It is made clear that in case petitioner is arraigned as an accused, in future, in any FIR, then his bail is liable to be cancelled. It is open for the Investigating Agency to move appropriate application in that regard.

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 are 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 Bangarh, Una, H.P., through email, 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 Bangarh, Una, H.P., is directed to inform this fact to the Secretary, DLSA, Una. The Superintendent, District Jail Bangarh, Una, H.P., 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, the said fact be submitted to this Court.

The petition stands accordingly disposed of.

A copy of this order be sent to the District Jail, Bangarh Una, H.P and the learned trial Court by FASTER.

A downloaded copy of this order shall be accepted by the learned Trial Court, while accepting the bail bonds from the petitioner and, in case, said Court intends to ascertain the veracity of the downloaded copy of the order presented to it, the same may be ascertained from the official website of this Court.