CRMPM/2810/2023 on 29 December 2023

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) No. 2810 of 2023 Reserved on: 21.11.2023 Date of Decision: 29.12.2023.

Balveer Kumar

...Petitioner Versus State of Himachal Pradesh

...Respondent

Coram

Hon’ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Sarthak Mehta, Advocate. For the Respondent : Mr. Prashant Sen, Deputy Advocate General, with SI Raj Kumar, P.S. Baijnath, District Kangra, H.P.

Rakesh Kainthla, Judge

The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was falsely implicated for the commission of offences punishable under Sections 376, 342 and 511 read with Section 34 of IPC and Sections 4, 6 and 8 of the Prevention of Children from Sexual Offences (POCSO Act) in FIR No. 144 of 2022, dated 16.9.2022,

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

registered at Police Station, Baijnath, District Kangra, H.P. The petitioner was falsely implicated to harass him. He was arrested on 18.9.2022 and is in judicial custody. The challan has been filed in the Court and no recovery is to be effected from the petitioner. The petitioner belongs to a respectable family and there is no likelihood of his jumping over the bail. All the material witnesses have been examined and only the formal witnesses are to be examined. The petitioner would abide by all the terms and conditions, which may be imposed by the Court. Therefore, it was prayed that the present petition be allowed and the petitioner be released on bail.

2. The State filed a status report asserting that the victim’s mother was informed by her owner-Santosh Kumar that some unknown person did some wrong act with the victim. She went to her home and found that the victim was crying. She pointed to a person present at the spot and told her that he had disrobed and digitally penetrated her. When the person tried to take her to the roof, she ran out of the room and told the incident to a neighbour. Many people gathered and gave beatings to the person present. He revealed his name as Sohan Singh. The matter was reported to the police. Another person

was also present with Sohan Singh. The police conducted the investigation and arrested Sohan Singh. The petitioner was also brought to the police station where he was identified by the victim. The petitioner can influence the witnesses in case he is released on bail. The matter is now listed for the prosecution evidence on 27.12.2023.

3. I have heard Mr. Sarthak Mehta, learned counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General for the respondent/State.

4. Mr. Sarthak Mehta, learned counsel for the petitioner submitted that there is no evidence against the petitioner except the statement made by the co-accused which is not admissible as a substantive piece of evidence. The disclosure statement is not sufficient to deny bail. He relied upon the judgments of Indra Dalal vs. State of Haryana (2015) 11 SCC 31, Pancho Vs. State of Haryana (2011) 10 SCC 165, Rajesh Sharma vs. Directorate of Revenue Intelligence, 2018 SCC Online Del. 12372 and Avinash Jha Vs. State of Bihar, 2020 SCC Online Pat. 699. He submitted that the charge sheet has been filed and the petitioner is entitled to bail. He relied upon the judgment of the Hon’ble Supreme Court in

Sanjay Chandra vs. CBI (2012) 1 SCC 40. He submitted that the continuation of the investigation is not a valid ground to deny bail. He relied upon the judgment of Navendu Babbar Vs. State (NCT of Delhi); Bail Application No. 953 of 2020, decided on 18.6.2020. He submitted that the existence of multiple cases is not a valid ground to deny the bail. He relied upon the judgment of Devangana Kalita vs. State, 2020, SCC Online Del. 1092. There is no chance of tampering with the evidence and no apprehension of influencing the witnesses and the bail should be granted to the petitioner. Reliance was placed upon the judgment of Ashok Sagar vs. State 2018 SCC Online Del 9548 and P. Chidambaram vs. Central Bureau of Investigation 2019 SCC Online SC 1549. He lastly submitted that the trial has not progressed and no witness has been examined so far. Thus, the petitioner is entitled to bail on this ground as well. He prayed that the present petition be allowed and the petitioner be released on bail.

5. Mr. Prashant Sen, learned Deputy Advocate General submitted that the petitioner was identified by the victim and he has not been merely arrested based on the statement of the co- accused. The petitioner and his friend had committed a heinous

offence against the minor. Therefore, he prayed that the present petition be dismissed.

6. I have given considerable thought to the submissions 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 Bhagwan Singh v. Dilip Kumar @ Deepu @ Depak, 2023 SCC OnLine SC 1059, wherein it was observed as under:-

12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that; (a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations; (b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.

(d) Frivility of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.

13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts has been explained in the following words: “11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri)

688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124].)”

8. A similar view was taken in State of Haryana vs Dharamraj 2023 SCC Online 1085, wherein it was observed:

7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002)

SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the relevant principles were restated thus: ‘9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(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.’

9. The present case has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

10. The status report clearly shows that the petitioner was brought to the police station where he was identified by the victim. Hence, it is not correct to say that the petitioner has been implicated solely based on the statement of the co-accused.

11. The petitioner and his friend had taken advantage of the lonely minor. They disrobed her and digitally penetrated her. Keeping in view the circumstances in which the offence was committed, the age of the victim and the age of the petitioner, the offence is heinous. Therefore, the petitioner is not entitled to bail on the grounds of the nature of the offence.

12. Since it has been found that the petitioner has not been implicated based on the statement of the co-accused but based on the identification made by the victim, the judgments cited by the learned counsel in Indira Dalal (supra), Rajesh Sharma (supra), Girdharwa (supra), Avinash Jha (supra) and Pancho (supra) will not apply to the present case.

13. Similarly, it is nobody’s case that the petitioner was involved in the commission of similar offences in the past, therefore, the judgments of Devangana Kalita (supra) and Prabhakar Tiwari (supra) will not apply to the present case.

14. It was submitted that there is a delay in the progress of the trial and no witness has been examined as per the status report. It is not permissible to keep the petitioner in custody indefinitely. The petitioner has not filed the copies of the order sheets to show that the delay is on the part of the prosecution and not on his part. In the absence of copies of the order sheets, it is difficult to accept the plea that there is a delay in the progress of the trial. The requirement of filing the order sheets is necessary because if the accused is delaying the trial, he cannot take advantage of his wrong and before he can seek bail on the ground of delay, he has to establish that he is not responsible for the delay in the progress of trial. Thus, the petitioner is not entitled to bail on the ground of delay as well.

15. The petitioner is involved in the commission of offences punishable under Sections 4, 6 and 8 of the POCSO Act. Section 4 of the Act provides punishment which shall not be less

than 10 years but which may extend to life. Section 6 provides for imprisonment which shall not be less than 20 years but may extend for the remainder of the natural life of the person. Thus, the offences alleged against the petitioner involve the severe punishment of life imprisonment. Keeping in view the extent of punishment, the petitioner cannot be released on bail.

16. Hence, the present petition fails and the same is dismissed.

17. The observation made hereinabove shall confine to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case. (Rakesh Kainthla) Judge 29th December, 2023 (Chander)