Harinder vs State Of Himachal Pradesh
2021 Latest Caselaw 923 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 1715 of 2020 Reserved on: January 29,2021.

.

Date of Decision: February 4, 2021.

Harinder

...Petitioner.

Versus State of Himachal Pradesh ...Respondent.

Coram:

The Hon'ble Mr. Justice Anoop Chitkara, Judge. Whether approved for reporting?1

For the petitioner: Mr. Naresh K. Tomar, Advocate.

For the respondent: Mr. Sudhir Bhatnagar, Additional Advocate General with Ms. Seema Sharma and Mr. Narender Thakur, Deputy Advocate Generals and Mr. Manoj Bagga, Assistant Advocate General.

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        FIR No.   Dated         Women Police Station               Sections
        15/18     22.8.2018     Nahan, District Sirmaur, H.P.      376, 376D of the





                                                                   IPC, Section 4 of
                                                                   the POCSO Act &
                                                                   Sections 3(1)(w)(ii)





                                                                   of the SC & ST Act.
    Anoop Chitkara, Judge.

The petitioner, incarcerating upon his arrest, for alleging alluring and

committing sexual intercourse with a minor girl aged 15 years, has come up

before this Court under Section 439 Cr.PC, seeking regular bail.

2. A perusal of the petition reveals that the petitioner straightaway filed the

bail petition before High Court, which is permissible given the decision of a three

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

Judges Bench of HP High Court, in Mohan Lal v Prem Chand, AIR 1980 HP

36, (Para 9 & 15), wherein the Full bench holds that a person can directly apply

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for an anticipatory bail or regular bail to the High Court without first invoking the

jurisdiction of the Sessions Judge.

3. The bail petition is silent about criminal history, however, Shri Naresh

Kumar Tomar, Ld. Counsel for the bail petitioner states on instructions that the

petitioner has no criminal past relating to the offences prescribing sentence of

seven years and more, or when on conviction, the sentence imposed was more

than three years. The status report also does not mention any criminal past of the

accused.

4. Briefly, the allegations against the petitioner are that on

22.08.2018, victim aged 14 years, accompanied by her father visited the

Police Station and informed about sexual assault. The Investigator

recorded her statement under Section 154 Cr.P.C. She alleged that she is

a student of class 8th and at that time was living alone in her house. On

16.08.2018, she came to attend a fair at Sangdah without telling anyone in

the nearby. When she reached at place Sangdah-Rajhana, there one

Vikram Thakur, who lives in Mahipur, met her. He took her to Sangdah

and from there in the evening at 5.00 p.m. brought her at Dadahu. They

reached Dadahu at 6.00 p.m. where he took a room in a hotel on rent and

there committed wrong act with her. At 8.00 p.m., a friend of Vikram

named Dibu came there and both of them took her to the house of

'Mama' of Dibu at a place known as Deep Panar. On reaching there,

they told 'Mama' of Dibu that she is sister of Vikram. All three stayed in

the same room and during night Vikram and Dibu committed sexual

assault with her. On 17.08.2018, Vikram dropped her at Dadahu from

.

where she returned to Nahan. On reaching Nahan, Pradeep alias

Tapender met her and took her to 'Nimantran Hotel' where he also

committed sexual intercourse with her. On next day 18.08.2018, in the

morning, she went to Dadahu. In the bus-stand, one Shashi met her.

Shashi is a resident of village Panahar. Shashi also committed sexual

intercourse with her at Jalalpul. Later on, she went to bus-stand and

stayed there. In the evening, one person named Ashok met her and he

took her to his room at Khadri. During night, she stayed with him. On

next day 20.08.2018, she came to bus-stand at Nahan where Pradeep alias

Tapender again met her and again took her to 'Nimantran Hotel' where he

committed sexual intercourse with her. She stayed in the hotel during

night. On 21.08.2018, she went to Renukaji and stayed in the bus-stand.

Vikram came there and brought her to Nahan from where Vikram took her

to Kala Amb and during night he again committed sexual intercourse with

her in the vehicle. They slept in the vehicle. In the morning, Vikram

brought her to Nahan and after dropping her there, he himself went to his

home. After that, she went to her Mama's house at Sainwala and on the

way near Sainwala, her father and brother noticed her from the bus and

brought her to the police station. She stated that Vikram, Dibu, Shashi and

Pradeep committed sexual intercourse with her. The police took the

victim for her medical examination. During investigation, the police

collected her date of birth from 'Parivar' register, according to which, she

turned out to be a minor. The investigation further revealed that while

committing sexual intercourse, Naresh had recorded the sexual act

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committed by Shashi with the victim. The investigation further revealed

that during investigation, victim had disclosed that on 21.08.2018 Vikram

and Harinder, petitioner herein, had also committed sexual intercourse

with her in a Tipper Truck. On these allegations, the Police recorded the

FIR mentioned above.

5. Ld. Counsel for the petitioner contends that the incarceration

before the proof of guilt would cause grave injustice to the petitioner and

family.

6. On the contrary, the State contends that the Police have collected

sufficient evidence against the bail petitioner and the co-accused. Another

argument on behalf of the State is that the crime is heinous, the accused is

a risk to law-abiding people, and bail might send a wrong message to

society.

REASONING:

7. Ld. Counsel for the petitioner referred to certain statements and memos

from the police report, prepared under section 173(2) CrPC, copies of which the

accused had duly received in compliance to S. 207 CrPC. However, the

documents which the Ld. Counsel referred were neither filed with the petition,

nor its copies supplied to the Court and the State. Thus, the Court cannot base any

finding on a document whcih is in the Counsel's brief and not on the Court's file.

8. Undoubtedly, in the statement under Section 154 Cr.P.C., the victim did

not name the petitioner as an accused. However, law is no more res integra that

an FIR is not an encyclopedia. The number of persons, who had committed

sexual intercourse with the victim were so large that even if she forgot one

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incident, the burden was on the petitioner to clarify as to why she implicated

him for the said offence. The petition is silent about any enmity.

9. Counsel for the petitioner has also made several other arguments. Still,

given that this Court is not inclined to grant bail, on the reasons mentioned above,

discussion of the same will be an exercise in futility. Any detailed analysis of the

evidence may prejudice the case of the prosecution or the accused.

10. Given above, in the facts and circumstances peculiar to this case,

at this stage, the petitioner fails to make out a case for bail. The petition is

dismissed with liberty to file a new bail application.

11. Any observation made hereinabove is neither an expression of opinion on

the merits of the case, nor shall the trial Court advert to these comments.

The petition is dismissed.

Anoop Chitkara,

Vacation Judge.

February 4, 2021(krt/KS).