Sahil vs State Of Himachal Pradesh

Anoop Chitkara, J

This petition coming on for orders this day, the Court passed the following:

FIR No.

Dated

Women Police Station

Sections

24/2021

9.9.2021

Bilaspur, District Bilaspur, H.P.

376(2)(f), 376(2)(n), 376(3) & 506 IPC, Section 6 of POCSO Act and Section 67 of IT Act.

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

A perusal of the petition reveals that the petitioner filed the bail petition before High Court, which is permissible given the decision of a three Judges Bench of HP High Court, in Mohan Lal v Prem Chand, AIR 1980 HP 36, (Para 9 & 15), wherein the Full bench holds that a person can directly apply for an anticipatory bail or regular bail to the High Court without first invoking the jurisdiction of the Sessions Judge.

Briefly, the allegations against the petitioner are that on 9.9.2021, the victim, a minor girl aged 14 years made a written complaint to the aforesaid Police Station. She informed that she is a student of Plus One. The son of her Chacha (paternal uncle) is a hair dresser. Around six months ago when her parents were not at home he visited her house and forcibly established sexual relations with her. After that, he repeatedly pressurized her to do sex with him. On her refusal, he threatened her to do away with her parents and siblings' life. Thus, she was forced to establish sexual relations with him on 2-3 occasions. On one such occasion, he called her to his home and while establishing sexual relations he also made a video of the sexual act. Subsequently, he pressurized her to continue sexual relations with him and told her that in case she refused he will make the video viral in her school. Feeling disgusted, she decided to leave the school and narrated the whole incident to her cousin (maternal uncle's daughter). When accused came to know about this, then he became very angry and uploaded the video on facebook and also broke the window panes of her Mama's car. When her cousin (Maternal uncle's daughter) came to know about the video of being viral, she told the victim and made complaint to the Police Station, seeking justice. Based on these allegations, the Police registered the FIR mentioned above.

Ld. Counsel for the petitioner argued that no date, time and place of incident has been mentioned. Secondly, that the victim refused to undergo medical examination and that there is delay in lodging of FIR. Learned counsel further 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:

Although, the status report reveals that the victim refused to undergo medical examination which would be significant but in the present case, the allegations are that the sexual act was video-graphed and uploaded on social media. If there is a video recording the sexual act, then whether medical examination would still be required or not is an issue which this Court refrains from commenting on, while deciding the present bail petition. The investigation is at a very crucial stage and recovery of electronic evidence needs to be tested from the experts. Thus, the stage of bail would come only when the examination of electronic evidence collected by the police absolves the accused given the refusal of victim to undergo medical examination. However, at this stage, the accused has failed to make out a case for bail.

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.