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Himachal Pradesh High Court · body

2015 DIGILAW 531 (HP)

Rakesh Kumar v. State of H. P.

2015-05-15

P.S.RANA

body2015
Order P.S. Rana, J. 1. Present bail petition is filed under Section 439 of the Code of Criminal Procedure 1973 for grant of bail in connection with FIR No. 79 of 2014 dated 16.5.2014 registered under Section 376(D) and 506 IPC at P.S. Baleauganj District Shimla (H.P.) 2. It is pleaded that petitioner did not commit any offence. It is further pleaded that petitioner is innocent and he is government employee and working in education department. It is pleaded that challan already stood filed in the Court and statements of five witnesses also stood recorded by learned trial Court. It is pleaded that trial will take long time to conclude. It is also pleaded that petitioner will comply all terms and conditions imposed by the Court in bail order. Prayer for acceptance of bail petition sought. 3. Per contra police report filed. As per police report, co-accused Rakesh Kumar and Ram Parsad @ Ramu were already familiar with each other. There is recital in police report that co-accused Rakesh Kumar is posted as peon in education department. There is further recital in police report that on dated 16.5.2014 coaccused Rakesh Kumar was sent to SBI Kalibari in connection with bank draft and thereafter co-accused Rakesh Kumar did not come back. There is also recital in police report that co-accused Rakesh Kumar at 11 AM went to place i.e. 103 tunnel Shimla and co-accused Ram Parsad @ Ramu met him at tunnel 103 Shimla and thereafter both accused went towards railway track in Summer Hill forest. There is further recital in police report that prosecutrix and her companion Manish Attri met accused persons upon the railway track. There is also recital in police report that thereafter both accused persons afraid prosecutrix and her friend and told the prosecutrix and her friend that police raid was effected and police officials would also caught the prosecutrix and her friend. There is further recital in police report that after creating fear in the mind of prosecutrix and her friend accused persons took the prosecutrix and her friend in forest and thereafter accused persons separated the prosecutrix and her friend upon different path. There is further recital in police report that after creating fear in the mind of prosecutrix and her friend accused persons took the prosecutrix and her friend in forest and thereafter accused persons separated the prosecutrix and her friend upon different path. There is further recital in police report that thereafter both accused persons namely Rakesh Kumar and Ram Parsad @ Ramu committed gang rape upon prosecutrix in forest and threatened the prosecutrix that they would kill her in case she would narrate the incident to anybody. There is further recital in police report that challan already stood filed in Court on dated 11.8.2014 which is pending before learned Additional Sessions Judge, Court No.1, Shimla. There is recital in police report that statements of seven witnesses already stood recorded and case is listed for further prosecution evidence. Prayer for dismissal of bail petition sought. 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 this bail petition:- 1. Whether bail petition filed under Section 439 Cr.P.C. is liable to be accepted as mentioned in memorandum of grounds of bail petition? 2. Final Order. Findings on Point No.1 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 the case shall be disposed of on merits after giving due opportunity to both the parties to lead evidence in support of their case. 7. Another submission of learned Advocate appearing on behalf of the petitioner that petitioner is in judicial custody since ten months and there will be delay in conclusion of trial and on this ground bail petition filed by petitioner be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Petitioner is facing the trial of heinous and grave offence of sexual assault mentioned under Section 376(D) IPC i.e. gang rape. The direction would be issued to learned trial Court to dispose of the case expeditiously. 8. Petitioner is facing the trial of heinous and grave offence of sexual assault mentioned under Section 376(D) IPC i.e. gang rape. The direction would be issued to learned trial Court to dispose of the case expeditiously. 8. Another submission of learned Advocate appearing on behalf of the petitioner that any condition imposed by Court will be binding upon the petitioner and on this ground bail petition 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. See AIR 1978 SC 179 titled Gurcharan Singh and others Vs. State (Delhi Administration). Also see AIR 1962 SC 253 titled The State Vs. Captain Jagjit Singh. In present case petitioner is facing trial under heinous and grave criminal offence punishable under Section 376(D) of IPC. Court is of the opinion that if petitioner is released on bail at this stage then trial of case will be adversely affected and interest of State and general public will also be adversely affected. 9. Submission of learned Additional Advocate General appearing on behalf of non-petitioner that if petitioner is released on bail at this stage then petitioner will induce and threat the prosecution witnesses is accepted for the reasons mentioned hereinafter. There is apprehension in the mind of Court that if petitioner is released on bail at this stage then petitioner will threat and induce the prosecution witnesses which would adversely effect the case. In view of gravity of offence punishable under Section 376(D) IPC it is not expedient in the ends of justice to release the petitioner on bail. 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 petition filed by petitioner under Section 439 Cr.P.C. is rejected. However learned trial Court is directed to dispose of the case expeditiously. 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 petition filed by petitioner under Section 439 Cr.P.C. is rejected. However learned trial Court is directed to dispose of the case expeditiously. Observations made in this order will not effect the merits of case in any manner and will strictly confine for the disposal of this bail petition filed under Section 439 of Code of Criminal Procedure 1973. Pending petition(s) if any also disposed of. Petition filed under Section 439 of Code of Criminal Procedure is disposed of. Pending petition(s) if any also disposed of.