ORDER Bail petitioner namely Dharampal, who is behind bars since 13.12.2021, has approached this Court in the instant proceedings filed under Section 439 of Cr.PC, for grant of regular bail in case FIR No. 115 of 2021 dated 5.11.2021, under Sections 363 & 376 of IPC and Section 4 of POCSO Act, registered at PS Hatli, District Mandi, H.P. Respondent State has filed the status report in terms of order dated 4.2.2022. ASI Brij Lal, I/o P.S. Hatli, District Mandi, H.P has also come present with records. Records perused and returned. 2. Perusal of status report/record reveals that on 5.11.2021, complainant Rakesh Kumar, who happens to be father of the victimprosecutrix (name withheld), lodged aforesaid FIR, alleging therein that his minor daughter aged 16 ½ years i.e. victim-prosecutrix has gone missing and as such, efforts be made to locate her. On the basis of aforesaid information, police started investigation and found that bail petitioner had been calling on the mobile number of mother of the victim-prosecutrix. During investigation, police found that bail petitioner had given a telephonic call to a taxi driver namely Satish Kumar alias Kalu Ram, who thereafter took bail petitioner and victim-prosecutrix to Baddi in his vehicle, from where present bail petitioner took the victim-prosecutrix to Rohtak in some private vehicle. After ascertaining the location, police recovered the victim-prosecutrix from Rohtak and got her medically examined at CHC Baldwara. Medical Officer opined that there is nothing to suggest that sexual intercourse has not been conducted with the patient, however final opinion shall be given after the receipt of the report of RFSL. On 9.12.2021, police arrested the bail petitioner and since then, he is behind the bars. 3. Since Challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner, he has approached this Court in the instant proceedings for grant of regular bail. 4. Mr. Sudhir Bhatnagar, learned Additional Advocate General while fairly admitting factum with regard to filing of the Challan in the competent court of law contends that though nothing remains to be recovered from the bail petitioner, but keeping in the gravity of offence alleged to have been committed by the bail petitioner, it may not be in the interest of justice to enlarge him on bail. While making this Court to peruse the status report/record, learned Additional Advocate General, submits that though there is overwhelming evidence suggestive of the fact that the bail petitioner taking undue advantage of the innocence and minority of the victim-prosecutrix not only made her to elope with him, but also sexually assaulted her against her wishes, but even otherwise consent, if any, of victim-prosecutrix being minor is immaterial and as such, bail petition having been filed by the bail petitioner deserves outright rejection. 5. This Court having heard learned counsel for the parties and perused material available on record, especially, statement made by the victim-prosecutrix under Section 164 Cr.PC, finds that victim-prosecutrix and present bail petitioner had prior acquaintance and they had been meeting and talking to each other for the last three years prior to the alleged incident. Victim-prosecutrix in her statement recorded under Section 164 Cr.PC before the Magistrate has categorically stated that she loves the bail petitioner and wants to solemnize marriage with him and she was forcibly taken by her parents for medical examination. Most importantly, victim-prosecutrix in her aforesaid statement has stated that she had asked the bail petitioner to take her to Rohtak from Barnal and nothing happened against her wishes and she shall have no objection in case bail petitioner is acquitted of charges leveled against him. No doubt, consent, if any, of the victim-prosecutrix is immaterial in view of her age, but having taken note of the conduct of the victim-prosecutrix, which is quite apparent from her statement made under Section 164 Cr.PC, it is difficult to conclude that the bail petitioner taking undue advantage of innocence and minority of the victim-prosecutrix made her to elope with him, rather she of her own volition and choice, with a view to solemnize with the bail petitioner, left her house and joined the company of the bail petitioner. During proceedings of the case, learned counsel for the petitioner made available information received by him under RTI that after lodging of case at hand against the petitioner, victim-prosecutrix has been regularly visiting the jail to meet the bail petitioner. In view of the totality of facts and circumstances narrated herein above, this Court finds it difficult to agree with learned Additional Advocate General that victim-prosecutrix is/was not capable of understanding the consequences of her being in the company of the bail petitioner. In view of the totality of facts and circumstances narrated herein above, this Court finds it difficult to agree with learned Additional Advocate General that victim-prosecutrix is/was not capable of understanding the consequences of her being in the company of the bail petitioner. Subsequent actions of the victimprosecutrix, whereby she has been regularly visiting the jail, clearly suggest that despite there being FIR registered against the bail petitioner, victimprosecutrix is in constant touch with the bail petitioner. Tough case at hand is to be heard and decided by the court below in totality of evidence collected on record by the investigating agency, but having taken note of the aforesaid aspect of the matter, this Court sees no reason to curtail the freedom of the bail petitioner during trial, especially when nothing remains to be recovered from him. Though learned Additional Advocate General claimed that it may not be in the interest of victim-prosecutrix to enlarge bail petitioner at this stage, but since victim-prosecutrix herself has been regularly meeting the bail petitioner in jail, this Court sees no reason to curtail the freedom of the bail petitioner for an indefinite period during trial. Apprehension expressed by the learned Additional Advocate General that in the event of petitioner’s being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions as has been fairly stated by the learned counsel for the petitioner. 6. Needless to say, object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 7. The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; held as under:- “ The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. 7. The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; held as under:- “ The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson.” 8. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218 , The Hon’ble Apex Court has held as under:- “ This Court in Sanjay Chandra v. CBI, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive or preventive. This Court sounded a caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and the grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted.” 9. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted.” 9. The Hon’ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496 , has laid down the following principles to be kept in mind, while deciding petition for bail: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. 10. Reliance is placed on judgment passed by the Hon’ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731 , relevant para whereof has been reproduced herein below:- “11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731 ; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616 ) Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569 ). 11. Hon’ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., decided on 6.2.2018, has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. 11. Hon’ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., decided on 6.2.2018, has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon’ble Apex Court further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Hon’ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid judgment are reproduced as under: “2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a firsttime offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973. 5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 prisons. 12. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 prisons. 12. In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 1,00,000/- with two local sureties in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions: (a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; (b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; (c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and (d) He shall not leave the territory of India without the prior permission of the Court. 13. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 14. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. The petition stands accordingly disposed of.