Himachal Pradesh High Court
Reserved On: 23.09.2024 vs State Of H.P on 4 October, 2024
2024:HHC:9558
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) No. 2067 of 2024
Reserved on: 23.09.2024
Date of Decision: 04.10.2024
Sunil Kumar ...Petitioner
Versus
State of H.P. ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1No
For the Petitioner : M/s Happy Thakur and Hemant
Thakur, Advocates.
For the Respondent : Mr Prashant Sen, Deputy Advocate
General with HC Vidya Sagar, Police
Station Janjehli, District Mandi, H.P.
with police record.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for seeking
regular bail. It has been asserted that the petitioner was arrested
vide F.I.R. 87 of 2024 dated 02.09.2024, for the commission of
offences punishable under Sections 137(2), 64(2) (m), 3(5), 61(2),
351(2), 238 of Bharatiya Nyaya Sanhita (BNS) and Sections 4, 6 and
17 of the Protection of Children from Sexual Offences Act,
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
2024:HHC:9558
2012(POCSO) Act registered at P.S. Janjehli District Mandi, H.P.The
petitioner is innocent and he was falsely implicated. He is a
respectable citizen of the society and he was not previously involved
in any criminal case.He would abide by all the terms and conditions,
which the Court may impose. Hence, the present petition.
2. The petition is opposed by filing a status report asserting
that the victim had gone to Chhattri on 14.08.2024. The petitioner
met her and asked her to board his vehicle. The petitioner is a
neighbour of the victim. The victim boarded the vehicle in which
four persons were sitting. They took the vehicle towards Rana Baag
and dropped the victim in the house of Yog Raj. Yog Raj told the
victim that she was his wife and he raped her. He snatched her
mobile phone. The victim ran away from the home of Yograj on
01.09.2024 and narrated the incident to her parents. The police
registered the F.I.R. and conducted the investigation. As per the
birth certificate issued by the Secretary, Gram Panchayat, Bagda the
victim was born on 26.05.2007 and she was a minor on the date of
the incident. The petitioner and accused were arrested and
medically examined. The victim made a statement under Section
183 of Bharatiya Nagarik Suraksha Sanhita (BNSS) that she was
taken in the vehicle of the present petitioner. The petitioner, Yograj
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and driver Vikash Kumar were already present in the vehicle. She
shouted for the help but her mouth was gagged with her Dupatta.
The petitioner threatened the victim to kill her in case of making the
noise. The mobile phone was with the victim but she could not
contact her parents. Hence, the status report.
3. I have heard M/s Happy Thakur and Hemant Thakur,
learned counsel for the petitioner and Mr. Prashant Sen, learned
Deputy Advocate General for the respondent/State.
4. Mr Happy Thakur, learned counsel for the petitioner
submitted that the petitioner is innocent and he was falsely
implicated. The petitioner had only given a lift to the victim. He had
not raped the victim as per F.I.R. The petitioner is in judicial custody
and no fruitful purpose would be served by detaining him in judicial
custody. Hence, he prayed that the present petition be allowed and
the petitioner be released on bail.
5. Mr Prashant Sen, learned Deputy Advocate General for
the respondent/State submitted that the victim had shouted for help
but the petitioner and Yograj gagged her mouth with her Dupatta.
They with dire consequences also threatened her. These
circumstances prima facie show the involvement of the petitioner in
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the commission of the offence. He had kidnapped the victim and his
role is no less than the role of the main accused Yograj. The
investigations are continuing; therefore, he prayed that the present
petition be dismissed and petitioner should not be released on bail.
6. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
7. The Hon'ble Supreme Court discussed the parameters for
granting the bail in Bhagwan Singh v. Dilip Kumar, 2023 SCC OnLine
SC 1059 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
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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 have
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 with 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.
2024:HHC:9558
(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
Dharamraj2023 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:
(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;
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(vii) reasonable apprehension of the witnesses being
influenced; and
(viii) danger, of course, of justice being thwarted by
grant of bail.'
9. The statement of the victim clearly shows that the
petitioner had asked her to board his vehicle. She boarded the
vehicle believing the petitioner to be her neighbour. The petitioner
took her towards Rana Baag instead of her home. He dropped her in
the house of Yograj. These allegations, prima facie, show that the
petitioner had facilitated the commission of the crime by Yograj.
10. It was submitted that the petitioner did not know the
intent of the Yograj and the relationship between them was
consensual. Both the submissions are not acceptable. The victim
specifically stated that she shouted for help but the petitioner and
Yograj gagged her mouth with the Dupatta. This shows that the
petitioner was not only aware of the fact that the victim was being
taken against her will but he had facilitated such taking by gagging
the victim's mouth with her dupatta to prevent her from shouting
and seeking help.
11. The second submission that the relationship between the
victim and Yograj was consensual will not help the petitioner, as the
victim was found to be a minor on the date of incident and she was
2024:HHC:9558
incapable of giving her consent. Further, the victim specifically
stated that she was kept by Yograj in his house without her consent;
hence, the plea that the relationship between Yog Raj and the victim
was consensual is not acceptable.
12. The allegations against the petitioner are serious. He
had kidnapped a minor girl and facilitated the commission of rape
by Yograj. There is a force in the submission of the learned Deputy
Advocate General that the nature of the crime is heinous and the
petitioner cannot be released on bail.
13. In view of the above the petitioner is not entitled to
concession of bail. Hence, the present petition fails and the same is
dismissed.
14. The observations made hereinabove are regarding the
disposal of the petition and will have no bearing, whatsoever, on the
merits of the case.
(Rakesh Kainthla)
Judge
04th October 2024
(ravinder)
DN: C=IN, O=HIGH COURT OF HIMACHAL
KARAN PRADESH, OU=HIGH COURT OF HIMACHAL
PRADESH SHIMLA,
Phone=e5d61f6599be410af7c5f0b57379e225878f23
c9ea27b281046985b3b1fe0b75,
SINGH PostalCode=171001, S=Himachal Pradesh,
SERIALNUMBER=f72cf9165791d55ec93937529196
2d0d90d094876bd59591426c0b1ce651f01f,
CN=KARAN SINGH GULERIA
GULERIA Reason: I am the author of this document
Location:
Date: 2024-10-04 13:43:01
