Shambhu Ram vs State of Himachal Pradesh

Satyen Vaidya, J

The petitioner has prayed for grant of bail in case FIR No. 04 of 2023, dated 16.01.2023, registered under Section 376 IPC and Section 6 of the Protection of Children from Sexual Offences Act (for short, “POCSO” Act), registered at Police Station, Pachhad, District Sirmaur, H.P.

On 16.01.2023 the above noted case was registered on the complaint of minor victim, when she was medically examined and found to have conceived. The minor victim initially alleged that she had been sexually assaulted by the petitioner under the pretext of marrying her. As per the child victim, the petitioner had been indulging in sexual activity with her for the last about two years. The case was registered and during investigation, the child victim further disclosed the names of few more persons including the petitioner, who had allegedly indulged with her in sexual activities at different times. The petitioner was arrested on 23.01.2023.

As per petitioner, he is innocent and has been falsely implicated in the case. He has no criminal antecedents and has never remained involved in any criminal activity. Petitioner is permanent resident of Village Kakriya Bharamputra, P.O. Meroua, Tehsil Mujaffarpur, District Bihar, presently residing at A-103, Road No.4, Mahipalpur Extension, South West, Delhi and there is no likelihood of his fleeing from the course of justice.

On the other hand, the bail petition has been opposed on the ground that the allegation against the petitioner is serious. The child victim has specifically named him to be one of the persons having indulged in sexual intercourse with her during her minority. It is also submitted that in case the petitioner is released on bail, he may tamper with the prosecution evidence.

I have heard learned counsel for the parties and have also gone through the records of the case carefully.

Learned counsel for the petitioner has submitted that he is in custody since 23.01.2023 and the trial is going to take considerable time before conclusion. He has further submitted that other co-accused in the case named Vijay Sharma has been released on bail by this Court vide order dated 08.08.2023 passed in Cr.MP(M) No. 1730 of 2023, Yog Raj @ Yogi and Farman have also been released on bail by this Court vide order dated 05.9.2023 passed in Cr.MP(M) No.2194 and 2199 of 2023.

On 21.7.2023, this Court had directed the Director, SFSL, Junga to submit the report in respect of the samples analyzed in case FIR No. 04 of 2023. In the status report dated 06.10.2023, it is revealed that from the evidence analyzed by SFSL, Junga, nothing incriminatory against the petitioner has been found.

The petitioner, indisputably, has a right of speedy trial. He has already suffered incarceration for about eight months. The SFSL report has been received recently. In these circumstances, the trial is not going to be concluded in near future.

Pre-trial incarceration is not the rule. It depends on facts of each case as also the evidence available against the accused. In any case, pre-trial incarceration cannot be punitive. The allegations are required to be proved against the petitioner and as noticed above, the trial is not likely to be concluded within reasonable period of time.

Petitioner is permanent resident of Village Kakriya Bharamputra, P.O. Meroua, Tehsil Mujaffarpur, District Bihar, presently residing at A-103, Road No.4, Mahipalpur Extension, South West, Delhi. The child victim, by now, has attained sufficient maturity and in case the petitioner is found to influence the child victim or in tampering with other evidence of the prosecution, the respondent can immediately seek cancellation of the bail. It is not the case of the respondent that in case of release of petitioner on bail, there is any likelihood of his fleeing or absconding from the course of justice.

Keeping in view the peculiar facts and circumstances of the case, the petition is allowed and the petitioner is ordered to be released on bail in case registered vide FIR No. 04 of 2023, dated 16.01.2023, under Section 376 IPC and Section 6 of the POCSO Act, at Police Station, Pachhad, District Sirmaur, H.P., on his furnishing personal bond in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of learned trial Court. This order is, however, subject to the following conditions:

i) That the petitioner shall not indulge in any criminal activity and in the event of breach of this condition, the bail granted to the petitioner in this case, shall automatically be cancelled.

ii) That the petitioner shall not leave the territory of India without express leave of Trial Court during the Trial.

iii). That the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case and shall not tamper with the prosecution evidence.

iv) That the petitioner shall regularly attend the trial of the case before learned Trial Court and shall not cause any delay in its conclusion.

Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.