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2025 DIGILAW 898 (HP)

Baldev v. State of Himachal Pradesh

2025-05-05

RAKESH KAINTHLA

body2025
JUDGMENT : Rakesh Kainthla, J. The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested vide FIR No. 44 of 2023, dated 27.8.2023, for the commission of offences punishable under Sections 376 A&B, Section 506 of the Indian Penal Code (IPC), Section 6 of Protection of Children from Sexual Offences Act (POCSO) and Section 3(2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC&ST Act) at Women Police Station Chamba, District Chamba, H.P. It has been asserted that the petitioner was falsely implicated. The investigation is complete. The custody of the petitioner is not required. The petitioner would abide by the terms and conditions which the Court may impose. Hence, the petition. 2. A status report has been filed by the State asserting that the informant made a complaint to the police, asserting that the victim’s mother was working as domestic help with her. She visited the informant’s house on 27.8.2023 at 11.00 AM with the victim. She wanted to convey something to the informant but could not convey as she was speech and hearing impaired. The informant inquired from the victim who replied that the petitioner had raped her 2-3 days ago. The petitioner paid ?500/- to the victim after committing rape upon her. She also revealed that the petitioner had raped her on 2-3 occasions earlier. The matter was reported to the police, who registered the FIR and conducted the investigation. The police seized the material articles. The victim was found to be aged 9 years and 5 days on the date of the incident. She belongs to a scheduled tribe, whereas the accused is not a member of scheduled tribes. The result of the analysis was issued, in which it was mentioned that the semen detected on the underwear of the petitioner and the bed sheet matched the DNA of the petitioner. The charge sheet was filed before the Court on 2.1.2024. The police have cited 33 witnesses., Nine witnesses have been examined, and 3 witnesses have been given up. The matter was listed on 7.4.2025 and 8.4.2025. The petitioner is involved in the commission of a heinous offence. Therefore, it was prayed that the present petition be dismissed. 3. I have heard Mr. Kulbhushan Khajuria, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State. 4. Mr. The matter was listed on 7.4.2025 and 8.4.2025. The petitioner is involved in the commission of a heinous offence. Therefore, it was prayed that the present petition be dismissed. 3. I have heard Mr. Kulbhushan Khajuria, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State. 4. Mr. Kulbhushan Khajuria, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. He was arrested on 29.8.2023. He has been in custody for more than one and a half years. The trial is not progressing. The petitioner is entitled to bail because of a violation of his right to a speedy trial. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail. 5. Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State, submitted that the petitioner has committed a heinous offence. The prosecution has examined nine witnesses, and three witnesses have been given up. The matter is now listed on 27.5.2025 and 28.5.2025. There is no delay in the progress of the trial. Therefore, he prayed that the present petition be dismissed. 6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. The parameters for granting bail were considered by the Hon’ble Supreme Court in Ramratan v. State of M.P., 2024 SCC OnLine SC 3068, wherein it was observed as follows: - “12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin Lokhandwalla v. State of Maharastra (2020) 10 SCC 77 observed that though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. The relevant observations are extracted herein below: “14. The language of Section 437(3) CrPC which uses the expression “any condition … otherwise in the interest of justice”, has been construed in several decisions of this Court. The relevant observations are extracted herein below: “14. The language of Section 437(3) CrPC which uses the expression “any condition … otherwise in the interest of justice”, has been construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail.” (Emphasis supplied) 13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570 this Court discussed the scope of the discretion of the Court to impose “any condition” on the grant of bail and observed in the following terms: — “15. The words “any condition” used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance, effective in the pragmatic sense, and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such an extreme condition to be imposed.” (Emphasis supplied) 14. This Court, in Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779 , laid down the factors to be taken into consideration while deciding the application for bail and observed: “ 4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial.” (Emphasis supplied) 8. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 9. The status report specifically mentions that the victim had complained about the sexual assault made upon her by the petitioner. The police had seized the material objects and found the DNA of the petitioner on the bed sheet where the rape was stated to have been committed. This prima facie shows that the petitioner had raped the victim. 10. The petitioner is a Pujari in the temple and holds a spiritual position with respect to the visitors of the temple. They repose confidence in the petitioner. The petitioner had raped the victim who was aged 9 years and 5 days on the date of incident. Therefore, there is force in the submission of Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State that the offence committed by the petitioner is heinous. 11. It was submitted that the trial against the petitioner has not been concluded despite the lapse of one and a half years from the date of his arrest. The petitioner cannot be kept indefinitely behind the bars. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State that the offence committed by the petitioner is heinous. 11. It was submitted that the trial against the petitioner has not been concluded despite the lapse of one and a half years from the date of his arrest. The petitioner cannot be kept indefinitely behind the bars. Reliance was placed upon the order sheets maintained by the learned Trial Court to demonstrate that the delay in the progress of the trial is not attributable to the petitioner but to the prosecution, which failed to produce the cited witnesses. Reference was also made to Section 35(2) of the POCSO Act, which provides that the Special Court should conclude the trial within one year from the date of taking cognisance of the offence. There can be no dispute with the proposition of law that the accused is entitled to the right of a speedy trial, and he cannot be kept behind the bars indefinitely, hoping for the early conclusion of the trial. However, it cannot be lost sight of that the Courts are overburdened, and it may not be possible to strictly adhere to the timeline provided in the statutes. Further, the provision of timelines was made for ensuring that justice is imparted to the victim quickly and not to enable the accused to get bail in heinous offences. In the present case, the prosecution has examined nine witnesses, and three witnesses have been given up. This shows that the trial is progressing normally. Therefore, the petitioner cannot be released on bail on the ground of delay in the progress of the trial. 12. The petitioner had raped a minor girl aged 9 years. The petitioner held a position of confidence vis-a-vis the victim. Keeping in view the age difference between the victim and the petitioner and their related positions, the petitioner cannot be released on bail. 13. In view of the above, the present petition fails and the same is dismissed. However, the petitioner is at liberty to approach the Court in case the trial is not concluded within a reasonable time. 14. The observation made herein before shall remain confined to the disposal of the instant petition and will have no bearing, whatsoever, on the merits of the case.