Santosh Kumar vs State Of H.P

Anoop Chitkara, J

The petitioner, incarcerating upon his arrest for teasing and misbehaving with a minor girl, has come up before this Court under Section 439

Cr.P.C., seeking bail.

A perusal of the petition reveals that the petitioner straightaway 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.

The petition does not mention any criminal history. However, the status report mentions the following criminal history:

a) FIR No.1, dated 11.02.20218, registered under Sections 363,366A,376, IPC and 4 of POCSO Act, in Women Police Station, Bilaspur.

Briefly, the allegations against the petitioner are that on 06.04.2020, the victim called on 112 and told about misbehavior by the petitioner. After this,

Investigator reached her home and recorded her statement under Section 154, Cr.P.C. She informed the police that Santosh, petitioner herein, was

teasing her, came to her school and hurled filthy abuses. He also threatened her that in case she would not talk to him, he would defame her and also

give beatings to her brother. Because of the said fear, she did not inform her parents. The petitioner did not mend his ways and even dared to catch

hold of her hand. Once he told her classmate that if she (victim) would not talk to him, then he would share her photographs to all. The victim said that

she does not know wherefrom he procured her photographs and after making the photographs obscene, he used to tease her. She also said that the

petitioner was a drug dependent and he earlier also remained in Nahan jail. 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 and the co-accused. Another

argument on behalf of the State is that the accused is a proven habitual offender. Given his past conduct, the accused is likely to repeat the offense,

the crime is heinous, the accused is a risk to law-abiding people, and bail might send a wrong message to society.

REASONING:

In Sunny Kapoor v State of HP, CrMPM 2168 of 2020, (Para 30 & 31), this Court after considering the relevant judicial precedents observed that

in reckoning the number of cases as criminal history, the prosecutions resulting in acquittal or discharge; or when Courts quashed the FIR; the

prosecution stands withdrawn, or Prosecution filed a closure report; cannot be included. The criminal history must be of cases where the accused was

convicted, including the suspended sentences and all pending First Information Reports, wherein the bail petitioner stands arraigned as an accused.

While considering each bail petition of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with

reasonableness because arbitrariness is the antithesis of law. Although crime is to be despised and not the criminal, yet for a recidivist, the contours of

a playing field are marshy, and graver the criminal history, slushier the puddles.

Though the petitioner is in custody since 26.06.2020, but keeping in view the nature of offence, being heinous, and the fact that the petitioner is a

habitual offender because such type of case is already pending against him, as such, he is not entitled for bail at this stage.

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.

Given above, in the facts and circumstances peculiar to this case, at this stage, the petitioner fails to make out a case for bail. The petition is

dismissed with liberty to file a new bail application.

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.

The petition is dismissed.