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Himachal Pradesh High Court · body

2015 DIGILAW 1767 (HP)

Sachin S/o Shri Vinod Verma v. State of H. P.

2015-12-02

P.S.RANA

body2015
JUDGMENT : P.S. RANA, J. 1. Present bail application is filed under Section 438 of the Code of Criminal Procedure 1973 for grant of anticipatory bail in connection with FIR No. 199 of 2015 dated 25.09.2015 registered under Sections 354, 451 IPC and under Section 8 of POCSO Act 2012 in P.S. Nalagarh District Solan (H.P.) 2. It is pleaded that petitioner did not commit any offence and has been falsely implicated in present case. It is pleaded that petitioner was not present at place of incident and was present at Jallandhar. It is pleaded that false FIR registered against the petitioner. It is pleaded that FIR registered against the petitioner for extraneous reasons. It is pleaded that petitioner will not tamper with prosecution witnesses in any manner and will abide by all terms and conditions of bail order. Prayer for acceptance of anticipatory bail application sought. 3. Per contra police report filed. As per police report FIR No. 199 of 2015 dated 25.9.2015 registered against the petitioner under Sections 451, 354 IPC and under Section 8 of POCSO Act 2012 at P.S. Nalagarh District Solan (H.P.). There is recital in police report that on 25.9.2015 minor prosecutrix along with her mother came in police station. There is recital in police report that prosecutrix is minor and her age is 12 years and she is a student of 6th class. There is further recital in police report that mother of minor prosecutrix is residing at New Nalagarh along with minor prosecutrix. There is recital in police report that on 24.9.2015 at 3.30 PM when mother of minor prosecutrix came to her residential house she found that minor prosecutrix was in very depressed condition and minor prosecutrix did not consume food and started weeping. There is recital in police report that when mother of minor prosecutrix inquired about reason of weeping from minor prosecutrix then minor prosecutrix told that when minor prosecutrix came to her residential house from school then petitioner Sachin came in her residential house and misbehaved with minor prosecutrix and also committed sexual assault upon minor prosecutrix with intent to outrage her modesty. There is also recital in police report that thereafter minor prosecutrix raised voice and her relative Varun came. There is further recital in police report that when relative of minor prosecutrix came thereafter petitioner Sachin left the place of incident. There is also recital in police report that thereafter minor prosecutrix raised voice and her relative Varun came. There is further recital in police report that when relative of minor prosecutrix came thereafter petitioner Sachin left the place of incident. During investigation Investigating Officer recorded statements of witnesses under Section 161 Cr.P.C. and statement of minor prosecutrix under Section 164 Cr.P.C. got recorded before Additional Chief Judicial Magistrate Nalagarh. 4. Court heard learned Advocate appearing on behalf of the petitioner and learned Additional Advocate General appearing on behalf of the non-petitioner and also perused the record. 5. Following points arise for determination in bail application:- 1. Whether anticipatory bail application filed under Section 438 Cr.P.C. by petitioner is liable to be accepted as mentioned in memorandum of grounds of anticipatory bail application? 2. Final Order. Findings on Point No.1 with reasons 6. Submission of learned Advocate appearing on behalf of petitioner that petitioner is innocent and petitioner did not commit any criminal offence cannot be decided at this stage. Same fact will be decided when case shall be disposed of on merits after giving due opportunity to both the parties to lead evidence in support of their case. 7. Submission of learned Advocate appearing on behalf of the petitioner that petitioner was not present at the place of incident as alleged by prosecution and petitioner was present at Jallandhar and on this ground anticipatory bail application be allowed is rejected for the reasons hereinafter mentioned. Alibi plea of petitioner cannot be decided at this stage. Alibi plea of petitioner would be decided by learned trial Court when case shall be disposed of on merits after giving due opportunities to both the parties to lead evidence in support of their case. 8. Another submission of learned Advocate appearing on behalf of petitioner that any condition imposed by Court will be binding upon petitioner and on this ground anticipatory bail application be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. At the time of granting bail following factors are considered. (i) Nature and seriousness of offence (ii) The character of the evidence (iii) Circumstances which are peculiar to the accused (iv) Possibility of the presence of the accused at the trial or investigation (v) Reasonable apprehension of witnesses being tampered with (vi) The larger interests of the public or the State. (i) Nature and seriousness of offence (ii) The character of the evidence (iii) Circumstances which are peculiar to the accused (iv) Possibility of the presence of the accused at the trial or investigation (v) Reasonable apprehension of witnesses being tampered with (vi) The larger interests of the public or the State. See AIR 1978 SC 179 titled Gurcharan Singh and others Vs. State (Delhi Administration) Also see AIR 1962 SC 253 titled State vs. Captain Jagjit Singh. In the present case allegations against the petitioner are very heinous and grave in nature. Allegations against the petitioner are that petitioner assaulted upon the minor prosecutrix with intent to outrage her modesty. Courts are under legal obligation to protect the interest of minors. It is well settled law that every minor girl has legal right to live in society with dignity and honour. Assault upon minor girl with intent to outrage her modesty is most hated crime. It is the crime against basic human rights and it violates the right to life. (See AIR 1996 SC 922 titled Bodhisattwa Gautam vs. Miss Subhra Chakraborty) It is well settled law that bail in non-bailable criminal case is not a matter of right. In present case positive overt act has been attributed against the petitioner by minor prosecutrix relating to use of criminal force with intent to outrage the modesty of minor prosecutrix. Allegations against the petitioner are grave in nature qua commission of criminal offence relating to sexual assault under Protection of Children from Sexual Offence Act 2012. Protection of Children from Sexual Offence Act 2012 is a spectial Act enacted with object to protect the minor girls from sexual assault. Even as per Section 30 of POCSO Act 2012 there is presumption of culpable mental state unless rebutted in accordance with law. Presumption of culpable mental state by petitioner would be rebutted when the case will be decided by learned trial Court after giving due opportunities to both the parties to lead evidence in support of their case. Court is of the opinion that case is at the initial stage of investigation and if anticipatory bail is granted to petitioner at this stage then investigation of case would be adversely effected. Court is of the opinion that it is not expedient in the interest of State and general public to grant anticipatory bail to petitioner at initial stage of investigation. 9. Court is of the opinion that it is not expedient in the interest of State and general public to grant anticipatory bail to petitioner at initial stage of investigation. 9. Submission of learned Additional Advocate General appearing on behalf of non-petitioner that if bail is granted to petitioner then petitioner will induce, threat and influence the prosecution witnesses and on this ground bail application be declined is accepted for the reasons hereinafter mentioned. There is apprehension in the mind of the Court that if anticipatory bail is granted to the petitioner then petitioner will induce and threat the prosecution witnesses. In view of above stated facts point No.1 is answered in negative. Point No.2 (Final Order) 10. In view of my findings on point No.1 bail application filed by petitioner under Section 438 Cr.P.C. is rejected. Observations made in this order will not effect the merits of case in any manner and will strictly confine for the disposal of bail application filed under Section 438 of Code of Criminal Procedure 1973. All pending application (s) if any also disposed of. Bail petition filed under Section 438 of Code of Criminal Procedure stands disposed of.