Punjab-Haryana High Court
Karan vs State Of Haryana on 24 January, 2023
CRM-M-24202-2022 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
223 CRM-M-24202-2022
Date of Decision: 24.01.2023
Karan ...Petitioner
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present:- Mr. Shashi Kant Gupta, Advocate for the petitioner
Ms. Dimple Jain, AAG, Haryana
***
JAGMOHAN BANSAL, J. (Oral)
1. The petitioner, through instant petition under Section 439
Cr.P.C., is seeking regular bail in FIR No.652 dated 28.09.2021 under
Sections 376-D, 506 of IPC, registered at Police Station City Narnaul,
District Mahendergarh.
2. As per FIR, allegation against the petitioner is that petitioner
and Santosh S/o Hardina had raped the prosecutrix who later on became
pregnant. As per report of Board of Doctors, the age of prosecutrix was
approximately more than 18 years, thus, Section 6 of POCSO Act was
deleted and Section 376-D of IPC was added. The prosecutrix and her
father-complainant during the course of trial turned hostile.
3. Learned counsel for the petitioner, inter alia contends that
FIR was registered under POCSO Act, however, challan was presented
under Section 376-D & 506 IPC. The prosecutrix and her father-
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complainant stand declared hostile. The petitioner is in custody for last 1
year and 3 months. The petitioner is not involved in any other offence.
The petitioner has been wrongly implicated in the commission of alleged
offence. There is no possibility of flee from justice.
4. Custody certificate dated 23.01.2023 is taken on record.
Registry is directed to tag the same at appropriate place.
5. Learned State Counsel submits that police report has already
been filed and charges stand framed. She further submits that out of 18
witnesses, 13 have already been examined which include prosecutrix and
complainant. The petitioner is involved in the commission of grave
offence, thus, no leniency is warranted and release of petitioner would
hamper the trial.
6. A two judge Bench of Hon'ble Supreme Court in Satender
Kumar Antil v. CBI; (2022) 10 SCC 51, with respect to prevailing
conditions of undertrial prisoner in India has observed:
"6. Jails in India are flooded with undertrial prisoners. The
statistics placed before us would indicate that more than
2/3rd of the inmates of the prisons constitute undertrial
prisoners. Of this category of prisoners, majority may not
even be required to be arrested despite registration of a
cognizable offence, being charged with offences punishable
for seven years or less. They are not only poor and illiterate
but also would include women. Thus, there is a culture of
offence being inherited by many of them. As observed by this
Court, it certainly exhibits the mindset, a vestige of colonial
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India, on the part of the investigating agency,
notwithstanding the fact arrest is a draconian measure
resulting in curtailment of liberty, and thus to be used
sparingly. In a democracy, there can never be an impression
that it is a police State as both are conceptually opposite to
each other."
7. Intent of arrest and reason of denial of bail is to:
i) Secure the appearance of the accused at the time of
trial;
ii) allay possibility of repeating of offence & jeopardising
own life on account of grim prospect of being
convicted; and
iii) Avoid possibility of tampering of evidence and
security of witnesses who may be pressurised or
maltreated.
8. A person who seeks to be liberated must take judgment and
serve sentence in the event of his conviction. The nature of the crime
charged, severity of punishment prescribed, prime facie available
evidences, history & background of the accused may indicate that any
amount of bond and surety is not going to secure presence of accused, at
the time of conviction. Detention or arrest not only deprives a person
from his fundamental right of personal liberty guaranteed by article 21
but also freedom guaranteed by article 19(1) of our Constitution.
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9. Keeping in mind:
i) The Petitioner is in custody since 29.09.2021;
ii) Police report under section 173 of Cr.P.C. stands filed,
charges stand framed;
iii) There are 18 prosecution witnesses and 13 stand
examined;
iv) The material witness i.e. Prosecutrix and complainant
stand examined and they have turned hostile;
v) As prosecution has right to arrest, investigate the
matter and restrain an accused from manipulating or
winning over witnesses, similarly accused in view of
Article 21 of the Constitution of India has right to
defend himself and put forth his stand which cannot be
possible while in custody;
vi) Twin stringent conditions of bail prescribed under
special statutes like PMLA, UAPA, NDPS Act,
Companies Act are not applicable in the case in hand;
vii) The Petitioner is not involved in any other criminal
case;
viii) prosecution has not led any convincing/plausible
documentary or oral evidence indicating possibility of
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Petitioner being flee from justice or tempering the
evidences or winning over/threatening the witnesses;
this Court is of the considered opinion that present petition
deserves to allowed and accordingly allowed. The petitioner is ordered to
be released on bail subject to conditions as may be imposed by Trial
Court/Illaqa/Duty Magistrate concerned.
Nothing observed hereinabove shall be construed as
expression of opinion of this Court on merits of the case and Trial Court
shall proceed without being prejudiced by observations of this Court.
(JAGMOHAN BANSAL)
JUDGE
24.01.2023
Mohit Kumar
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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