Punjab-Haryana High Court
Charanpreet Singh @ Gogi vs State Of Haryana on 29 October, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2024:PHHC:142588
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
215 CRM-M-53013-2024
DATE OF DECISION: 29.10.2024
CHARANPREET SINGH @ GOGI ...PETITIONER
Versus
STATE OF HARYANA ... RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. L.M. Gulati, Advocate for the petitioner(s).
Mr. Chetan Sharma, DAG, Haryana.
***
SANDEEP MOUDGIL, J (ORAL)
1. Relief Sought
This petition has been filed under Section 439 Cr.P.C. for
grant of regular bail to the petitioner in case FIR No.0503 dated
12.10.2023, under sections 10/12/6 of POCSO Act, 2012 and Section
342/506 of IPC, registered at Police Station Baldev Nagar, District
Ambala.
2. Prosecution story set up in the present case as per the version
in the FIR reads as under :-
'Statement of Vijay Kumar S/O Sh. Sukhdev no.2234/10
Kumar resident Subhash of house Nagar Ambala city aged 42
years, mobile no.9355318595. Stated that I am a resident of the
above mentioned address. I am working as conductor in Haryana
Roadways. My wife does domestic work. I have 2 children,
consisting of a boy namely Krish aged 11 years and a girl Suhani
aged 8 years. My son Krish studies in 6TH CLASS in A.K AK
PUBLIC SCHOOL Baldev Nagar Ambala city. My son Krish had
summer vacation from school in the month of June 2023. My son
Krish used to live in our own house. During this time, our
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neighbour Gogi son of Kanti and Krishna son of unknown, resident
of Subhash Nagar Ambala city told my son to come outside and
play. On the pretext of playing, Gogi took my son to his house and
after locking the house, Gogi put his penis in my son Krish's mouth
and tried to put it in his anus. My son made noise and my son
Krish ran away from there. After about 5-6 days, our neighbor
Krishna took my son to his house and he also behaved with my son
like Gogi. After that, in the month of August, my son Krish started
saying that he was having pain in his stomach. Due to pain in his
stomach, I got him checked in many hospitals and also got him
checked at PGI Chandigarh. On 10.10.2023, my son Krish told me
that I was scared and was not telling you. During the summer
vacation, Gogi and Krishna had put their penis in my mouth and
tried to put it in my anus. Gogi and Krishna had threatened my son
that if he tells anyone, they will kill him. My son was scared and
nervous. After that, I got my son Krish admitted to PGI SEC 12,
Chandigarh. He is undergoing treatment at PGI. Gogi and Krishna
have committed wrong act with my son Krish. Legal action should
be taken against them. I have written my statement to you. You
have heard and read it. It is correct. Sd/- VIJAY KUMAR
ATTESTED P/SI DEVENDER KAUR PS BALDEV NAGAR DT
12.10.2023.'
3. Contentions
On behalf of the petitioner
Learned counsel for the petitioner contends that there is an
inordinate delay of 4 months in lodging the FIR and the story of the
prosecution is highly improbable in light of the fact that alleged
occurrence has taken place in the month of August, 2023 whereas the
victim narrated the whole story only after he developed the stomach pain
on 10.10.2023. He has argued that as per the narrated story and facts
mentioned in the FIR as well as the depositions of PW-1-victim and his
father PW-2 namely Vijay Kumar, no overt act can be attributed to
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conclude that on account of such alleged occurrence there was pain in
stomach and for that medical treatment was required and it is on these
lines the story alleged is liable to be disbelieved. He has further argued
that the antecedents of the petitioner are clean and no fruitful purpose
would be served by keeping the petitioner behind the bars as conclusion
of trial would take long time as out of total 13 Prosecution Witnesses,
only 5 PWs have been examined so far.
Notice of motion.
On the asking of Court, learned State Counsel appearing
on advance notice, accepts notice on behalf of respondent-State.
On behalf of the State
Learned State Counsel has filed the custody certificate of the
petitioner, which is taken on record. According to which, the petitioner is
behind bars for the last 1 year and 1 day.
He on instructions from the Investigating Officer opposes
the prayer for grant of regular bail but could not controvert the above
narrated circumstances which raises a doubt that such incident might
have taken place. He informs the Court that in the present FIR challan
stands presented on 22.12.2023 and charges stands framed on 11.01.2024.
4. Analysis
However, this Court having regard to the submissions made
on behalf of the counsel for the parties and looking at the totality of the
facts as has been unfolded and the period of incarceration undergone by
the petitioner i.e. 1 year and 1 day wherein out of 13 prosecution
witnesses, only 5 PWs have been examined so far and nothing remains to
be recovered or examined from the present petitioner since the
complainant already stands examined in the witness box before the Trial
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Court, antecedents of the petitioner are clean, meaning thereby he is not a
habitual offender, and as per the principle of the criminal jurisprudence,
no one should be considered guilty, till the guilt is proved beyond
reasonable doubt, and therefore, detaining the petitioner behind the bars
for an indefinite period would solve no purpose.
Reliance can be placed upon the judgment of the Apex Court
rendered in "Dataram versus State of Uttar Pradesh and another",
2018(2) R.C.R. (Criminal) 131, wherein it has been held that the grant of
bail is a general rule and putting persons in jail or in prison or in
correction home is an exception. Relevant paras of the said judgment is
reproduced as under:-
"2. A fundamental postulate of criminal jurisprudence is the
presumption of innocence, meaning thereby that a person is
believed to be innocent until found guilty. However, there are
instances in our criminal law where a reverse onus has been
placed on an accused with regard to some specific offences but
that is another matter and does not detract from the fundamental
postulate in respect of other offences. Yet another important facet
of our criminal jurisprudence is that the grant of bail is the general
rule and putting a person in jail or in a prison or in a correction
home (whichever expression one may wish to use) is an exception.
Unfortunately, some of these basic principles appear to have been
lost sight of with the result that more and more persons are being
incarcerated and for longer periods. This does not do any good to
our criminal jurisprudence or to our society.
3. There is no doubt that the grant or denial of bail is entirely the
discretion of the judge considering a case but even so, the exercise
of judicial discretion has been circumscribed by a large number of
decisions rendered by this Court and by every High Court in the
country. Yet, occasionally there is a necessity to introspect whether
denying bail to an accused person is the right thing to do on the
facts and in the circumstances of a case.
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4. While so introspecting, among the factors that need to be
considered is whether the accused was arrested during
investigations when that person perhaps has the best opportunity
to tamper with the evidence or influence witnesses. If the
investigating officer does not find it necessary to arrest an accused
person during investigations, a strong case should be made out for
placing that person in judicial custody after a charge sheet is filed.
Similarly, it is important to ascertain whether the accused was
participating in the investigations to the satisfaction of the
investigating officer and was not absconding or not appearing
when required by the investigating officer. Surely, if an accused is
not hiding from the investigating officer or is hiding due to some
genuine and expressed fear of being victimised, it would be a
factor that a judge would need to consider in an appropriate case.
It is also necessary for the judge to consider whether the accused
is a first-time offender or has been accused of other offences and if
so, the nature of such offences and his or her general conduct. The
poverty or the deemed indigent status of an accused is also an
extremely important factor and even Parliament has taken notice
of it by incorporating an Explanation to section 436 of the Code of
Criminal Procedure, 1973. An equally soft approach to
incarceration has been taken by Parliament by inserting section
436A in the Code of Criminal Procedure, 1973.
5. To put it shortly, a humane attitude is required to be adopted by
a judge, while dealing with an application for remanding a suspect
or an accused person to police custody or judicial custody. There
are several reasons for this including maintaining the dignity of an
accused person, howsoever poor that person might be, the
requirements of Article 21 of the Constitution and the fact that
there is enormous overcrowding in prisons, leading to social and
other problems as noticed by this Court in In Re-Inhuman
Conditions in 1382 Prisons, 2017(4) RCR (Criminal) 416: 2017(5)
Recent Apex Judgments (R.A.J.) 408 : (2017) 10 SCC 658
6. The historical background of the provision for bail has been
elaborately and lucidly explained in a recent decision delivered in
Nikesh Tara chand Shah v. Union of India, 2017 (13) SCALE 609
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going back to the days of the Magna Carta. In that decision,
reference was made to Gurbaksh Singh Sibbia v. State of Punjab,
(1980) 2 SCC 565 in which it is observed that it was held way back
in Nagendra v. King-Emperor, AIR 1924 Calcutta 476 that bail is
not to be withheld as a punishment. Reference was also made to
Emperor v. Hutchinson, AIR 1931 Allahabad 356 wherein it was
observed that grant of bail is the rule and refusal is the exception.
The provision for bail is therefore age-old and the liberal
interpretation to the provision for bail is almost a century old,
going back to colonial days.
7. However, we should not be understood to mean that bail should
be granted in every case. The grant or refusal of bail is entirely
within the discretion of the judge hearing the matter and though
that discretion is unfettered, it must be exercised judiciously and in
a humane manner and compassionately. Also, conditions for the
grant of bail ought not to be so strict as to be incapable of
compliance, thereby making the grant of bail illusory."
Therefore, to elucidate further, this Court is conscious of the
fundamental principle of law that right to speedy trial is a part of
reasonable, fair and just procedure enshrined under Article 21 of the
Constitution of India. This constitutional right cannot be denied to the
accused as is the mandate of the Apex court in "Hussainara Khatoon
and ors (IV) v. Home Secretary, State of Bihar, Patna", (1980) 1 SCC
98. Besides this, reference can be drawn upon that pre-conviction period
of the under-trials should be as short as possible keeping in view the
nature of accusation and the severity of punishment in case of conviction
and the nature of supporting evidence, reasonable apprehension of
tampering with the witness or apprehension of threat to the complainant.
5. Decision:
In view of the aforesaid discussions made hereinabove, the
petitioner is directed to be released on regular bail on his furnishing bail
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and surety bonds to the satisfaction of the trial Court/Duty Magistrate,
concerned.
However, it is made clear that anything stated hereinabove
shall not be construed as an expression of opinion on the merits of the
case.
The petition in the aforesaid terms stands allowed.
(SANDEEP MOUDGIL)
JUDGE
29.10.2024
anuradha
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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