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2017 DIGILAW 1166 (HP)

Anu Ranjan Rana v. State of H. P.

2017-10-12

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. 1. By way of this application filed under Section 439 of the Code of Criminal Procedure, the petitioner has prayed for grant of bail in FIR No. 14/2017, dated 21.07.2017, under Section 376 of the Indian Penal Code, registered at Women Police Station Dharamshala, District Kangra. 2. I have heard the learned counsel for the petitioner as well as learned Deputy Advocate General and have also gone through the status report filed by the State as well as the records of the case. 3. The allegation against the petitioner is that he has sexually molested a lady, who is differently abled being mentally challenged. The factum of the victim being in the company of the petitioner has not been denied by the learned counsel for the petitioner on the date when the alleged incident is stated to have taken place. However, as per the learned counsel for the petitioner, on account of incessant rain, the petitioner had taken shelter in a Rain Shelter, wherein victim was also present. As per the petitioner, as all his clothes were wet, therefore, he had taken off his clothes and despite his asking the victim not to do so, she also tried to imitate the petitioner, which has been misconstrued as an act on the part of the petitioner of having sexually molested the victim. Learned counsel for the petitioner has further submitted that as the investigation is almost complete and further as the petitioner is a local resident of Dari, there is no apprehension of his evading trial in case he is released on bail. In support of his contention that the petitioner is entitled for grant of bail, learned counsel for the petitioner has relied upon the following judgments: 1. Bhagirathsinh Judeja, AIR 1984 SC 372 . 2. Sunil Kumar vs. State of Himachal Pradesh, Latest HLJ 2003 (HP) 151. 3. Dwarku Devi vs. State of Himachal Pradesh, Latest HLJ 2014 (HP) Suppl. 666. 4. Amar Chand vs. State of Himachal Pradesh, Latest HLJ 2015 (HP) 1347. 4. On the other hand, the case of the prosecution, as is made out from the contents of the FIR as well as the status report filed, is that the victim, who is about 50 years old, is a mentally challenged lady. 666. 4. Amar Chand vs. State of Himachal Pradesh, Latest HLJ 2015 (HP) 1347. 4. On the other hand, the case of the prosecution, as is made out from the contents of the FIR as well as the status report filed, is that the victim, who is about 50 years old, is a mentally challenged lady. On 20.07.2017, at around 11:00 a.m. she left her house as she usually used to roam in Dari. As despite lapse of quite sometime, she did not return back to her house, the complainant, who is the sister of the victim, started searching her in the market. In the interregnum, she received a phone call from her brother Vinod, who asked her where was she. She told her brother that she was searching for the victim and on this, he asked the complainant to proceed towards the curve near the Tea Factory to find out as to what has happened to the victim. When complainant reached there, her brother Vinod was already there alongwith many other persons and therein, on the asking of the complainant, victim told her that the accused had raped her. Learned Deputy Advocate General has accordingly submitted that taking into consideration the gravity of the offence and the fact that the accused is charged with raping a mentally challenged lady, he is not entitled to be released on bail, as he being a local person, shall be in a position to influence the witnesses and thus create hurdles in the process of investigation. 5. Having heard learned counsel for the parties, in my considered view, the petitioner has not been able to make out a case, in the peculiar facts of the case that he is entitled for grant of bail. This is for the reason that not only the alleged offence committed by the petitioner is an heinous offence, the said offence is further alleged to have been committed against a mentally challenged lady. Not only this, the petitioner is a local resident of Dari and there is force in the contention of the learned Deputy Advocate General that in view of the fact that he is a local resident of Village Dari, he shall be in a position to influence the witnesses as well as the investigation. 6. Not only this, the petitioner is a local resident of Dari and there is force in the contention of the learned Deputy Advocate General that in view of the fact that he is a local resident of Village Dari, he shall be in a position to influence the witnesses as well as the investigation. 6. Judgments referred by the learned counsel for the petitioner, in my considered view, have no applicability in the facts of the present case. In Bhagirathsinh Judeja’s case (supra), the Hon’ble Supreme Court besides holding that the power to grant bail is not to be exercised as if the punishment before trial is being imposed, it has further been held by the Hon’ble Supreme Court that material considerations while granting or refusing bail inter-alia are whether the accused shall be available for trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. Besides this, in the said case, the Hon’ble Supreme Court was dealing with the situation where the High Court had cancelled the bail granted in favour of the accused therein by the learned Sessions Judge. In the present case, as I have already discussed above, taking into consideration the fact that the victim is a mentally challenged lady and the petitioner happens to be a local resident of the area, on his released on bail, there is a possibility of his tampering with the evidence by trying to influence the witnesses etc. Not only this, it is also a settled principle of law that while exercising its discretion of granting bail, the Court inter-alia also has to keep into consideration the gravity of the offence alleged to have been committed by the accused. 7. In other judgments referred to by the learned counsel for the petitioner, this Hon’ble Court in the facts and circumstances of each case, has passed appropriate orders. However, there is no judicial precedent to the effect, nor it can be that in every case where investigation is complete or is on the verge of completion, an accused, no matter what the gravity of the offence alleged against him is, has a right to be released on bail. 8. In view of above discussion, as there is no merit in the present case, the same is dismissed.