The Himachal Pradesh High Court recently comprising of a bench of Justice Satyen Vaidya, while granting bail to a rape-accused, observed that pre-trial incarceration cannot be ordered as matter of rule. (Rajender Kumar v. State of Himachal Pradesh)
Facts of the case
The petitioner by way of instant petition, prayed for grant of pre-arrest bail in case registered against him under Sections 376, 452 and 506 of Indian Penal Code.
On 3.9.2022, the prosecutrix reported the matter to the police that on 25.8.2022, she was sexually assaulted by the petitioner in her house during day time, when none else was at home. The reason for delay in lodging the report has been stated to be the absence of the husband of the prosecutrix from home. Statement of prosecutrix under Section 164 Cr.P.C. has also been also recorded.
The bail application was opposed on the ground that the custodial interrogation of the petitioner is required and further that in case of release of petitioner on bail, he may overawe the prosecution witnesses including the prosecutrix.
The case of the petitioner was that he is innocent and has not committed any offence. He is a permanent resident of Village Bagain, Post Office Karsog, Tehsil Karsog, District Mandi, H.P. and there is no likelihood of his absconding or fleeing from the course of justice.
Courts Observation and order
The bench at the very outset observed, "The offence allegedly was committed on 25.8.2022, whereas, the report to the police was made on 3.9.2022. There is nothing in the status report to suggest that to whom the petitioner had disclosed the facts between 25.8.2022 to 3.9.2022. The reason for making complaint after a delay of about eight days is stated to be absence of the husband of the prosecutrix from home. Though, at the stage of deciding the pail application, this Court will not scan the prosecution evidence minutely, yet the facts collected by the prosecution can always be looked into for assessing the gravity and seriousness of offence.
The bail application has been opposed on the ground that the petitioner is required for custodial interrogation. However, except for a bald assertion, nothing has been shown as to why his custodial interrogation is required. The allegations against the petitioner are yet to be proved. Pre-trial incarceration cannot be ordered as matter of rule."
The bench further observed, "It has also been apprehended by the respondent that in case of grant of bail to the petitioner, he may overawe the prosecutrix and other prosecution witnesses. Again there is nothing on record to suggest the potential of petitioner to indulge in any such activity. Such apprehension can otherwise be taken care of by imposing appropriate conditions against the petitioner."
The bench granting bail to the accused remarked, "The preliminary investigation in the case is already complete. No fruitful purpose shall be served by allowing the petitioner to be kept in custody.
In view of peculiar facts and circumstances of the case, petition is allowed and in the event of arrest of the petitioner in case shall be released on bail, on his furnishing personal bond in the sum of Rs. 25,000/- with one surety in the like amount to the satisfaction of the Investigating Officer/Arresting Officer."
Read Judgment @Latestlaws.com
\
Picture Source :
