Tek Singh vs State Of H.P

Anoop Chitkara, J

The petitioner, incarcerating upon his arrest for alluring and raping a minor girl, has again come up before this Court under Section 439 Cr.PC, 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.

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 17.03.2020, victim alongwith her mother reached the aforesaid police station and handed over a written complaint about sexual assault. They also handed over a complaint written by the Principal, GSSS Bathad, addressed to Superintendent of Police. The written complaint revealed that on 16. 03.2020, at 2:00 p.m., he received information from three female teachers that the petitioner, who is an Art Teacher, committed rape upon a student of 9th Class. The principal immediately brought this information to the notice of her mother and president of School Management Committee. After that, he forwarded the same to the police station. There was another complaint written by the victim to the principal, in which, it is stated that she was student of 9th Class, in the month of January, 2020. Tek Singh, petitioner herein, who visited the school to teach Drawing, visited her home (rented accommodation) in the night and committed forcibly coitus with her. After this act, he told her not to reveal it to anyone and he continued to intimidate her, due to which, she kept quiet and mum for two months. Based on this complaint, police registered the aforementioned FIR. Then investigation revealed that the victim stopped menstruating in the month of March. The she revealed her friend about the rape committed by the teacher. She further stated that the petitioner gave her medicines for abortion, due to which, she started menstruating. The police took the victim to hospital, where she refused for medical examination. The investigation further found date of birth of the victim as 1st March, 2005, which would make her under 16 years of age in January, 2020.

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.

The victim was student of the petitioner, which was a fiduciary relation of trust, faith and respect. The petitioner not only violated the dignity of the girl, but also the morality of society. Given above, he is not entitled to bail.

Learned counsel for the petitioner has filed this petition on the grounds that the charges were not framed for the commission of offences under Section 376 of IPC and Section 4 of Protection of Children from Sexual Offences Act, 2012, (POCSO) and only charges under Section 6 of POCSO Act have been framed.

A perusal of order dated 4th January, 2021, passed by learned Special Judge, Kullu, reads as under:-

"I have heard learned counsels for the parties and gone through the record carefully. I find prima-facie case for offence under Section 6 of the Protection of Children from Sexual Offence Act against the accused. Whereas no case for offence under Section 376 Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act was found against the accused. Accordingly, charge framed.............."

Section 6 of POCSO Act reads as follows:-

"Punishment for aggravated penetrative sexual assault:- Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extent to imprisonment fo5r life and shall also be liable to fine."

A reading of Section 6 of POCSO Act reveals that minimum sentence which a Court can impose, shall not be less than ten years.

Given above, merely because the charges under Sections 376 of IPC and Section 4 of POCSO Act, are not framed is not ground for grant of bail.

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.

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.

The petition is dismissed.