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2019 DIGILAW 433 (HP)

HARJEET SINGH v. STATE OF HIMACHAL PRADESH

2019-04-18

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this petition, prayer has been made for grant of regular bail in favour of the petitioner, who is in custody in connection with FIR No. 157 of 2018 dated 6th June, 2018 registered at Police Station Nurpur, District Kangra under Sections 376 and 506 of IPC as also Section 4 of the POCSO Act, 2012 and Section 3(1)(w) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 2. Petitioner is stated to be in custody since 6.6.2018. The allegation against petitioner is that the victim, who was 13 years old, was sexually molested by the petitioner, who happened to be the landlord of the premises where victim was residing with her father. Taking advantage of the fact that victim was a motherless girl and her father was working in Mandi Jasur, petitioner used to come to the room of the victim when she was alone and there he sexually molested her and outraged her modesty. 3. In this petition, notice was issued on 9.4.2019 for the day. Today, learned Additional Advocate General has filed the status report and he has also produced the relevant record of the case. On instructions he has apprised the Court that statements of the prosecution witnesses are presently being recorded by learned trial Court and for the said purpose, the case is now listed in the month of May, 2019. 4. A perusal of the status report, inter alia, demonstrates that after the incident, father of the victim has refused to keep her with him and since 12.6.2018, the victim is staying in an orphanage at Salyana (Panchrukhi) District Kangra. Age of the victim is stated to be 13 years old and she belongs to Scheduled Caste category. The petitioner has also been booked under the provisions of Section 4 of the POCSO Act, 2012 and Section 3(1)(w) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 5. Learned counsel for the petitioner has argued that petitioner is entitled to be released on bail as a false case has been registered against him. He has further argued that the prosecution had examined the victim, her father as also Language Teacher and the Principal and statements of said 04 witnesses have failed to bring any substantial material on record against the petitioner. He has further argued that the prosecution had examined the victim, her father as also Language Teacher and the Principal and statements of said 04 witnesses have failed to bring any substantial material on record against the petitioner. He has further argued that as the prosecution is bound to fail in all probabilities to prove the guilt of the petitioner, therefore, petitioner is entitled to be released on bail. He has further argued that presumption of innocence is the legal right of the petitioner and as examination of witnesses is likely to take substantial time, therefore also, the petitioner deserves to be enlarged on bail. He has further submitted that prosecution has failed to bring any substantial material on record against the petitioner and the statement of the victim is also false, concocted, vague and ambiguous. According to him, victim has failed to pinpoint the date on which the petitioner has outraged her modesty. He has further argued that it is unbelievable that despite disclosure of the alleged rape to her father by the victim, he (father of the victim) did not pay any heed to the same. He has also argued that it is unbelievable that when the victim was subjected to sexual molestation, she did not raise any hue and cry. He has also argued that as the father of the victim is in arrears of rent, as payable to the brother of the petitioner, same is the root cause as to why the complaint was filed against petitioner. He has also argued that medical report dated 9.8.2018 prepared by Regional Forensic Science Laboratory, NR, Dharamshala demonstrates that no specimen of petitioner was detected in any of the Exhibits. On these grounds, learned counsel for the petitioner has urged that petitioner deserves to be enlarged on bail. The above contentions raised on behalf of the petitioner stand incorporated in this order on the insistence of his learned counsel. 6. On the other hand, learned Additional Advocate General has argued that taking into consideration the gravity of offence alleged against the petitioner and further the fact that victim was just 13 years old at the time of incident, the petitioner does not deserve to be released on bail. 6. On the other hand, learned Additional Advocate General has argued that taking into consideration the gravity of offence alleged against the petitioner and further the fact that victim was just 13 years old at the time of incident, the petitioner does not deserve to be released on bail. He has further argued that as of now, only 04 witnesses have been examined and more than 17 witnesses are yet to be examined and in these circumstances, in case petitioner who happens to be a local resident of the area concerned and is an influential person is released, there is every possibility that he will try to win over the witnesses and will also try to tamper with the evidence. Learned Additional Advocate General has also submitted that after the complaint was lodged by victim against the petitioner, even the father of victim has refused to keep her with him and she has been kept in an orphanage, therefore also, in case the petitioner is released on bail, the same shall definitely have adverse effect on the minor victim. He has also argued that petitioner has concealed the fact of his earlier also filing a similar petition which did not find favour with the Court concerned. On these bases, he has argued that as there is no merit in the petition, the same be dismissed. 7. Having heard learned counsel for the parties and having perused the status report, I am of the considered view that no case has been made out by the petitioner to release him on bail. 8. It is settled law that the circumstances which have to be considered by a Court while considering bail application, inter alia, are:- (a) whether there exists any prima facie or reasonable ground to believe that accused committed the offence; (b) nature of acquisition and gravity of charge; (c) severity of punishment in the event of punishment; (d) likelihood of offence being repeated; (e) reasonable apprehension of witnesses being tampered with; and (f) character, behaviour, mesne and position of the accused and chances of course of justice being throated by grant of bail. 9. Coming to the facts of present case. 9. Coming to the facts of present case. The allegation against the petitioner is of having sexually molested a minor girl, allegedly taking advantage of the fact that he was the owner of the premises where she was residing alone, being motherless and on account of her father being away from home due to his job commitment. The victim besides being a minor, belongs to Scheduled Caste category. Indeed, the nature of allegation made against the petitioner is serious and the offence alleged to have been committed by the petitioner is grave in nature. In case the offence stands proved against the petitioner, then he is liable to be severely punished. Being a permanent resident of the area concerned, there is a reasonable apprehension of witnesses being influenced by the petitioner, as has been rightly pointed out by learned Additional Advocate General. Further, taking into consideration the fact that after lodging of complaint against the petitioner, the father of victim has refused to keep the victim with him and she is presently residing in an orphanage, the release of petitioner but natural will have a negative effect on the minor victim. 10. The contention of learned counsel for the petitioner that petitioner has been falsely implicated in the case allegedly on the ground that father of the victim was in arrears of rent and that prosecution has not been able to bring any material on record to establish the guilt of the petitioner are not the facts which need to be gone into by this Court while deciding the present petition. These facts shall be taken care of by learned trial Court at the appropriate stage. In my considered view, in the course of adjudicating upon a bail application, the Court is not per se to act as a trial Court and assess the material on record in the mode and manner in which a trial Court is duty bound to assess the same. While dealing with a bail application, the Court has to confine itself to the well settled norms laid down by the Hon'ble Supreme Court and thereafter decide as to whether in the facts of the case, petitioner therein can be released on bail or not. While dealing with a bail application, the Court has to confine itself to the well settled norms laid down by the Hon'ble Supreme Court and thereafter decide as to whether in the facts of the case, petitioner therein can be released on bail or not. In fact, there is no straightjacket formula which can be applied while adjudicating an application for grant of bail and each case has to be decided on its own facts and merit in the light of the broad principles mentioned herein-above. In the present case the petitioner is not entitled for grant of bail and reasons for arriving at the said conclusion have already been spelt out by the Court here-in-above. Thus, as there is no merit in this petition, the same is dismissed.