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2023 DIGILAW 191 (HP)

Shallu v. State of Himachal Pradesh

2023-03-31

SATYEN VAIDYA

body2023
JUDGMENT : Satyen Vaidya, J. The petitioner is accused in case FIR No. 13 of 2021 dated 30.1.2021, registered at Police Station Majra, Tehsil Paonta Sahib, District Sirmour, H.P Under Sections 363, 366-A, 376 Indian Penal Code and Section 4 of Protection of Children from Sexual Offence (POCSO) Act and Sections 5, 7 of Immoral Traffic(Prevention) Act, 1956. 2. The petitioner is in custody since 05.02.2021. 3. Brief facts are that on 30.01.2021 a case was registered at Police Station Majra Tehsil Paonta Sahib, District Sirmour, at the instance of the mother of the victim. It was alleged that the victim was aged about 16 years and 4 months only and on 28.01.2021, the victim had left the home without informing any one. She was missing and was not traceable. On 31.01.2021, the complainant visited the Police Station along with the victim. On 01.02.2021, the statement of the victim under Section 164 of Cr.P.C was recorded before learned Judicial Magistrate First Class, Court No. 2 Poanta Sahib. After investigation, it was concluded that the victim was enticed by the petitioner and her person was used for immoral trafcking. The victim remained in custody of petitioner from 28.01.2021 to 31.01.2021 and during this period the victim was subjected to sexual assaults by diferent persons. 4. Petitioner has prayed for grant of bail on the ground that the allegations against her are false. The investigation is complete since long. Charges were framed against the petitioner and other co-accused on 21.05.2022, but till date none of the prosecution witnesses have been examined. It is specifcally contended that the victim and the complainant are avoiding to face the cross-examination and for such reason have not appeared before learned trial Court on many dates fixed for recording prosecution evidence. It is further submitted that the right of petitioner to speedy trial has been infringed. Petitioner cannot be allowed to be kept in custody in perpetuity. The petitioner has undertaken to abide by all the terms as may be imposed against her. 5. On the other hand, the learned Additional Advocate General has opposed the prayer for bail on the ground that the petitioner has been charged with heinous offence. In case of her release on bail, she may tamper with the prosecution evidence. 6. I have heard Mr. Rahul Singh, learned counsel for the petitioner and Mr. 5. On the other hand, the learned Additional Advocate General has opposed the prayer for bail on the ground that the petitioner has been charged with heinous offence. In case of her release on bail, she may tamper with the prosecution evidence. 6. I have heard Mr. Rahul Singh, learned counsel for the petitioner and Mr. Arsh Rattan, Deputy Advocate representing the for the State and have also gone through the relevant record. 7. Learned counsel for the petitioner has submitted that the bail petition of the petitioner was rejected by learned Special Judge, Sirmaur, District At Nahan for the last time about 1½ year back. Thereafter charges were framed by learned trial Court on 21.05.2022 and despite repeated opportunities afforded to the prosecution none of the prosecution witness has been examined. Even the victim and her mother have not come forward to make their respective depositions before the Court. As per learned counsel for the petitioner, this is a change circumstance as the right of liberty of petitioner is being seriously prejudiced for no fault of her. 8. As per record, the charges were framed against petitioner on 21.5.2022. Thereafter, the case was fixed for prosecution evidence on 27.7.2022, 21.10.2022 and 26.12.2022, but, none of the prosecution witness was examined. Even the victim and her mother have not appeared as prosecution witnesses. On 05.01.2023, the trial was listed for proper orders and now the same has been adjourned to 11.04.2023 for recording of the statements of some of prosecution witnesses. There are total 38 numbers of cited prosecution witnesses. Evidently, the conclusion of trial is likely to take quite a considerable time, especially keeping-in-view the pace at which it is proceeding. 9. The petitioner is in custody for about two years. Not even a single prosecution witness has been examined till date. There is no allegation against the petitioner that the delay in trial is attributable to her. The curtailment on the right of liberty can be ensured through reasonable restrictions only. The facts of the case clearly reveal that the right of speedy trial available to petitioner has been seriously violated. There is substance in the contention of learned counsel for the petitioner that the petitioner cannot be detained in perpetuity without completing the trial as per mandate of law. This defnitely can be taken to be a changed circumstance for considering the bail petition of the petitioner. There is substance in the contention of learned counsel for the petitioner that the petitioner cannot be detained in perpetuity without completing the trial as per mandate of law. This defnitely can be taken to be a changed circumstance for considering the bail petition of the petitioner. 10. As noticed above, the right of speedy trial is a valuable constitutional right available to the petitioner. No reasonable cause or reason has come forth for delay a conclusion of trial against the petitioner. She has also suffered the custody for almost two years. She cannot be allowed to be detained in custody for indeterminate period. 11. The allegations against the petitioner are subject to proof. The fact that even the victim and her mother have not been examined by prosecution till date, reveals its non serious approach towards the matter. The petitioner cannot be made to suffer for defaults of others. 38 prosecution witnesses have been cited and in the given, facts the trial is not likely to conclude till lapse of considerable time. 12. The petitioner is permanent resident of Village Hamida Colony Pehli Gali, near Police Post Hamida, District Yamuna Nagar, Haryana, presently R/o Kyarda, Post Office Majra, Tehsil Paonta Sahib, District Sirmour, H.P. and there is no likelihood of her absconding from the course of justice. Only concern of this Court at this stage, is to secure fair trial, for which appropriate terms can be imposed. 13. Keeping in view the peculiar facts of the case, the petition is allowed and the petitioner is ordered to be released on bail in case FIR No. 13 of 2021 dated 30.1.2021, registered at Police Station Majra, Tehsil Paonta Sahib, District Sirmour, H.P on her furnishing personal bond in the sum of Rs. 1,00,000 (one lac) with one surety in the like amount to the satisfaction of the learned trial Court. This order shall however, subject to following conditions:- (i) That the petitioner shall appear before learned trial Court on each and every date and shall not delay the trial. 1,00,000 (one lac) with one surety in the like amount to the satisfaction of the learned trial Court. This order shall however, subject to following conditions:- (i) That the petitioner shall appear before learned trial Court on each and every date and shall not delay the trial. (ii) That the petitioner shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) That breach of any of the bail condition by the petitioner shall entail cancellation of the bail ; (iv) That the petitioner shall not leave the country without the express permission of learned trial Court; 14. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.