Fool Kamal vs State Of H.P
2023 Latest Caselaw 18554 HP

Himachal Pradesh High Court

Fool Kamal vs State Of H.P on 30 November, 2023

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MPM No.2616 of 2023 & Cr.MPM No.2614 of 2023 Reserved on: 09.11.2023 Date of Decision: 30.11.2023

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Cr.MPM No.2616 of 2023

1. Fool Kamal ... Petitioner Versus

State of H.P. ....Respondent .............................................................................................................................

of Cr.MPM No.2614 of 2023

2. Jeet Singh ...Petitioner

State of H.P. rt Versus ...Respondent

Coram Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 no

For the Petitioner(s) : Mr. N.S. Chandel, Sr. Advocate with Mr. Rajesh Verma, Advocate in both the petitions.

For the Respondent(s) : Ms Avni Kochhar, Deputy Advocate General with ASI Duni Chand, IO Police Station Nalagarh in both the

petitions.

Rakesh Kainthla, Judge

These two bail petitions have arisen out of the common

FIR No.214/2023 dated 24.07.2023 registered at Police Station

Nalagarh for the commission of offences punishable under

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

Sections 376, 120B & 506 of IPC and Section 6 & 17 of the Protection

of Children from Sexual Offences Act (in short 'POCSO Act').

2. As per the prosecution, the grandmother of the victim

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reported the matter to the police that her granddaughter came to

her on 23.07.2023. She was afraid. When the informant talked to

the victim, she started crying. An enquiry was made in the evening

and the victim informed that Jeet Singh had called her and

of promised to buy Kulfi for her. Jeet and Fool Kamal took her to

Chowkiwala and bought Kulfi for her. Jeet told the victim that he rt would buy her a suit. She was taken to a hotel. The victim was

asked to go to the room with Fool Kamal. Fool Kamal sexually

assaulted the victim. He also threatened the victim. The police

recorded the FIR, conducted the investigation and arrested the

petitioners. As per the opinion of the Medical Officer, the age of the

victim was 14-16 years. The challan was prepared and presented

before the Court and is pending trial before learned Fast Track

Court, Solan.

3. The petitioners filed separate bail petitions asserting

that they were innocent and were falsely implicated. They are the

permanent residents of District Solan. They belong to a respectable

family of the society. The challan has been presented before the

Court. No recovery is to be effected. The petitioners would join the

investigation and would abide by all the terms and conditions,

which may be imposed by the Court. Therefore, it was prayed that

the present petitions be allowed and the petitioners be released on

bail.

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4. I have heard Mr. N.S. Chandel learned Senior counsel

assisted by Mr. Rajesh Verma, learned counsel for the petitioners

and Ms Avni Kochhar, Deputy Advocate General, for the

of Respondent/State.

5. Mr. N.S. Chandel, learned Senior Counsel, for the rt petitioners submitted that the victim did not support the

prosecution case in her statement recorded under Section 164 of

Cr.P.C. The Medical Officer had also not found any signs showing

the recent sexual assault. Therefore, he prayed that the present

petition be allowed and the petitioners be released on bail.

6. Ms Avni Kochhar, learned Deputy Advocate General for

the respondent/State submitted that the petitioner were involved

in the commission of a heinous offence and they should not be

released on bail.

7. I have given considerable thought to the rival

submissions at the bar and have gone through the records

carefully.

8. 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:-

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"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

of 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;

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(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) Frivolity 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

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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

of is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

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(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].)"

9. 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) 3 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:

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(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

of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

rt (v) character, behaviour, standing of the accused;

means, position and

(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.'

10. The present case has to be decided as per the

parameters laid down by the Hon'ble Supreme Court.

11. A copy of the statement recorded by learned Additional

Chief Judicial Magistrate, Nalagarh is available in the police file,

which shows that the victim had stated that she was talking to Fool

Kamal. Everybody said that a case has to be filed and therefore, she

filed a case under the pressure of her family members. Nothing was

done to her. The MLC also does not show any signs of recent

injuries. Thus, there is insufficient material to connect the

petitioners with the commission of the offence punishable under

Section 376 of IPC and Section 6 of the POCSO Act at this stage.

12. Keeping in view of the statement made by the victim,

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the continued detention of the petitioners in custody would be

useless; therefore, the present petitions are allowed and the

petitioners are ordered to be released on bail subject to their

furnishing of bail bonds in the sum of ₹ 25,000/- each with one

of surety each in the like amount to the satisfaction of the learned

Trial Court. While on bail, the petitioners will abide by the rt following terms and conditions:

(i) The petitioners will join the investigation as and when directed to do so by means of a written hukamnama.

(ii) The petitioners will not intimidate the witnesses nor will they influence any evidence in any manner

whatsoever.

(iii) The petitioners shall attend the trial in case a charge sheet is presented against them and will not seek

unnecessary adjournments.

(iv) The petitioners will not leave the present address for a continuous period of seven days without furnishing the address of the intending visit to the I.O/SHO of the concerned Police Station.

(v) The petitioners will furnish their mobile numbers, and social media contacts to the Police and the Court and will abide by the summons/notices received from the

Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change.

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13. It is expressly made clear that in case of violation of any

of these conditions, the prosecution will have the right to file a

of petition for cancellation of the bail.

14. The observation made herein before shall remain rt confined to the disposal of the petition and will have no bearing,

whatsoever, on the merits of the case.

(Rakesh Kainthla) Judge 30th November, 2023

(saurav pathania)